HKSAR v. TSE CHI SHING

CACC 201/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 201 OF 2014

(ON APPEAL FROM HCCC NO. 443 OF 2013)

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REASONS FOR JUDGMENT
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Hon Macrae JA (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant faced an Indictment alleging one count of robbery, contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210 (Count 1); and two counts of murder, contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212 (Counts 2 and 3).  A fourth count, namely conspiracy to commit burglary, concerned the applicant’s co-accused Wong Chi-kwong (“Wong”) who had pleaded guilty to the offence at the commencement of the trial.  That count does not therefore concern this Court.

2.  The prosecution alleged that on 13 December 2012, the applicant had, at Room 1807, Wang Chung House in the Wang Tau Hom Estate, Kowloon, robbed Ip Cheung-tai (“Madam Ip”) and Tsui Bing-cheung (“Mr Tsui”) of $20,000 in cash, a mobile telephone, a can of milk powder, a wallet, two Octopus cards, two Hong Kong Identity Cards, one Senior Citizen Card, one China Re-entry Card and some clothing (Count 1).  Further, it was alleged that the applicant had, in Hong Kong, murdered Mr Tsui (Count 2) on 15 December 2012, and Madam Ip (Count 3) on 23 January 2013; the two dates being the dates of their respective deaths.

3.  Upon his arraignment before Deputy High Court Judge Wright on 15 May 2014, the applicant pleaded guilty to robbery (Count 1) but not guilty to the two murders alleged in Counts 2 and 3; instead, he entered pleas of guilty to manslaughter on Counts 2 and 3.  The pleas of guilty to manslaughter having been rejected by the prosecution, the two counts of murder proceeded to trial.

4.  On 23 May 2014, the applicant was found guilty after trial of the two murders in Counts 2 and 3.  He was sentenced to a term of 6 years’ imprisonment on Count 1, and two concurrent life terms on Counts 2 and 3; all sentences being ordered to run concurrently with each other.  The applicant now seeks leave to appeal against his convictions in respect of the two murders in Counts 2 and 3.

5.  On 4 August 2015, we refused the applicant leave to appeal against his convictions and said we would give our reasons later in writing.  These are our reasons.

The evidence at trial

6.  By his guilty pleas to the alternative offence of manslaughter, the applicant accepted that he had done certain acts inside the premises on 13 December 2012 resulting in the injuries sustained by Mr Tsui and Madam Ip, from which they respectively died on 15 December 2012 and 23 January 2013.[1] In addition, the following facts were not in dispute at the trial.

7.  At the time of the offences, the applicant lived at Room 2114 on the 21^st floor of Wang Chung House[2], while Wong, the co-accused, was the applicant’s friend who would often visit him there.[3]

8.  Madam Ip, who was 75 years of age, and her husband, Mr Tsui, who was 82 years of age, lived at Room 1807 on the 18^th floor of the same building.[4]

9.  At around 4:45 pm on 13 December 2012, Madam Chan Po-chun, the occupier of Room 1814 at Wang Chung House, saw the applicant and Wong walking near Rooms 1804 to 1816.[5] Although Madam Chan recognised the applicant as a resident of the same block, she knew that neither he nor Wong lived on the 18^th floor.[6]

10.  The security CCTV recordings of the building showed that Mr Tsui had, at about 5:20 pm (actual time[7]) that afternoon, entered the lobby on the ground floor.[8]

11.  Sometime after 5:00 pm that day, Madam Shear Yuet-ha, who lived at Room 1808, immediately next door to the unit where Madam Ip and Mr Tsui resided, heard four loud bangs as if some hard object was hitting against the wall separating the two units.[9]

12.  At around 5:25 pm, Mr Leung Jam (“Mr Leung”), the occupier of Room 1806, reported to a security guard, Mr Ng Kim-wing (“Mr Ng”), that the elderly lady in Room 1807 had lost consciousness.[10] Mr Ng went to Room 1807 and found both the door and the iron-gate closed.  He knocked but no one answered the door.[11]  A report was then made to the police.

13.  Later that evening, Mr Ng assisted the police enquiries by viewing the relevant CCTV footage of Wang Chung House, from which he identified the applicant and Wong as the persons who arrived by lift in the lobby[12] at about 5:47 pm[13]; Mr Ng recognised the applicant as a tenant of Room 2114; and Wong, as the applicant’s friend.[14]

14.  The applicant and Wong were arrested during the evening of 15 December 2012 in Wanchai.[15] On the following day, the police conducted a house search at the applicant’s unit on the 21^st floor, where they seized a number of exhibits including Mr Tsui’s Hong Kong Identity Card, China Re-entry card, Senior citizen card, and another Membership card, together with a tin of milk powder and two HK$500 banknotes.[16]

15.  Forensic evidence showed that fibres originating from the applicant’s T-shirt were found on the shirt, vest and trousers worn by Madam Ip at the time of the incident, indicating there had been contact between the two of them.[17]  Mr Tsui’s blood was also found in the applicant’s right shoe, and a partial shoeprint in blood lifted from Room 1807 was probably made by that shoe.[18]

16.  The live evidence of witnesses did not appear to be in significant dispute.  The jury heard that Madam Ip had been diagnosed with nasopharyngeal carcinoma from which she had recovered.[19] However, in 2007 she had broken her leg and could only move about in a wheelchair or with a pair of crutches.[20]  Accordingly, Madam Ip had spent the better part of the day at home and would rarely go out.[21]  On the other hand, it had been Mr Tsui’s habit to go out to collect newspapers in the morning and to take a walk in the afternoon[22], leaving the wooden door of Room 1807 slightly ajar to facilitate ventilation and the iron-gate unlocked[23]; he would usually return home a little after 5:00 pm.[24]

17.  Mr Leung,whose evidence was unchallenged[25], was a neighbour of Madam Ip and Mr Tsui.[26] At about the time of the incident, he left his own unit to go out[27] when he heard a noise coming from Room 1807.[28]  He noticed that the lights inside Room 1807 were off[29], but he was able to see a man (whom he did not know[30] but who, on the evidence at the trial, must have been the applicant[31]) pulling a body across the floor inside Room 1807.[32]  Thinking that Madam Ip might have suffered a fall[33], Mr Leung asked the applicant why he did not call the police for help.[34]  In reply, the applicant said he had already done so, adding: “She is my aunt.”[35]  The applicant came out of Room 1807 hurriedly, shut the iron-gate[36], and proceeded to the lift lobby on the 18^th floor[37], saying to Mr Leung that he would go downstairs to wait.[38]  Mr Leung followed him to the lift lobby[39], but the applicant left via the staircase.[40]

18.  Later, a police officer, a fireman, and two ambulance officers arrived and broke open the metal grille and wooden door of Room 1807 in order to gain entry.[41] They found Madam Ip on the bed and Mr Tsui lying face-down with the upper part of his body in the toilet area, his body below the chest protruding into the living room.[42]  Though obviously injured[43], both Madam Ip and Mr Tsui were still alive.[44]  Madam Ip was conscious but was unable to speak[45], while Mr Tsui was completely unresponsive.[46]  They were both taken to Queen Elizabeth Hospital.[47]  Mr Tsui never regained consciousness before passing away on 15 December 2012.[48]  Madam Ip passed away on 23 January 2013.[49]

Mr Tsui’s injuries

19.  Unconscious and in a critical condition, Mr Tsui arrived at the Accident and Emergency Department of the hospital and was found on initial medical examination to have right peri-orbital bruising and multiple lacerations over the right scalp; the clinical diagnosis was “head injury”.[50]

20.  Mr Tsui was intubated and transferred to the Neurosurgical Unit, by which time his condition had worsened and he sank into an even deeper level of unconsciousness.[51] He had unequal pupils and his right pupil was non-reactive[52], which was a “very significant feature in the assessment of his treatment and prognosis”.[53]  A CT scan of his brain revealed diffused brain swelling, acute subdural haemorrhage, subarachnoid haemorrhage, and contusion without obvious skull vault fracture.[54]  Right peri-orbital, facial, parietal-scalp bruises were also noted.[55]  Dr Yuen Ming-him of the Department of Neurosurgery at Queen Elizabeth Hospital gave evidence that “at least moderate impact” would have been required to cause those bruises[56], and that the trauma to Mr Tsui’s head and brain was “very serious”.[57]

21.  Emergency external ventricular drainage was immediately performed on Mr Tsui, but his post-operative intra-cerebral pressure remained unabated with progressive haemorrhage and insults to the brain.[58] In view of Mr Tsui’s grave prognosis, his relatives agreed that he should be managed conservatively.[59]  Mr Tsui’s condition deteriorated gradually, and he was certified dead on the early morning of 15 December 2012.[60]

The pathologist’s evidence concerning Mr Tsui’s injuries and the cause of death

22.  Dr Ng Chung-ki, a government forensic pathologist since 1992[61], performed an autopsy on Mr Tsui on 20 December 2012.[62] He described nine items of external injury on Mr Tsui’s body, which were consistent with an assault.[63]  They included abrasions and lacerations to the head and face, bruises and swelling to the eyes with extensive bruises in the white of the eye, and abrasions to the upper chest and the right thigh.[64]  In addition, Dr Ng found a deep bruise measuring 20 cm x 10 cm involving subcutaneous tissue and muscles on the upper surface of the right shoulder and the adjoining chest; this bruise was not discernible on external, visually examination.[65]

23.  Dr Ng identified, in particular, three heavy, blunt areas of impact[66] which had resulted in the more severe injuries that Mr Tsui had suffered: (i) at the back of the head, (ii) to the right side of the face in the eye and temple region, and (iii) to the right shoulder (the deep bruise).[67]  Of these three injuries, Dr Ng’s evidence was as follows.

24.  In respect of the head injuries, Dr Ng found in Mr Tsui’s cranial cavity extensive confluent deep bruises on the top and front of the head, in the right eye, and on the right cheek.[68] There was a thick layer of subdural haematoma covering the right cerebral hemisphere of the brain, which was swollen with flattened cerebral convolution and had extensive subarachnoid haemorrhage.[69]  Dr Ng said these injuries to the brain could have been caused by a heavy, blunt impact to the head or by acceleration and deceleration of the brain due to the movement of the head.[70]  Dr Ng did not find it surprising that Mr Tsui never regained consciousness before he passed away on 15 December 2012, in view of the primary damage to the brain substance itself.[71]

25.  In relation to the injuries to the right face, Dr Ng was of the view that the bruises to the right eye and the lacerations on the right temple area could have been produced by Mr Tsui being hit with a broad, flat object, or by multiple punches, probably involving moderate to heavy impacts.[72] Further, there were extensive reddish bruises on the inner surface of the right sides of lips and two reddish bruises on the lining of the oral cavity near the left corner of the mouth.[73]  These bruises were consistent with an assault by punches.[74]

26.  As to the deep bruise in the right shoulder, Dr Ng said that its size and depth suggested that the amount of the force used to cause this injury was “quite heavy”, such as that which might be occasioned by a punch or by hitting against a hard object; this kind of deep and severe bruising was uncommon in domestic deaths.[75] The centre of the bruise was over the upper surface of the shoulder, and Dr Ng explained that he would not have expected a fall onto a flat surface to have produced such a bruise.[76]

27.  Apart from the three more serious injuries, Dr Ng noted at least four other impacts on Mr Tsui’s body which had resulted in some minor injuries, namely to the top of the head, to the right inner thigh, to the back of the left ear, and to the chest of Mr Tsui.[77] The laceration behind the left ear was, according to Dr Ng, an uncommon injury, and it could have come about by direct impact, or by someone pulling the ear away from the body.[78]

28.  Dr Ng could find no evidence of defensive injuries.[79] He recounted in evidence the opinions he had set out in paragraphs 5(IV) and (V) of his witness statement dated 3 June 2013[80], in which he had said:

“IV. The video-recorded interviews and scene reconstruction as well as the respective transcripts were enclosed for my perusal. According to the arrested person Tse Chi-shing, he and the deceased were standing on the floor facing each other at the alleged incident. He used one hand to push the front of the deceased’s chest once. As a result of that, the back of the deceased hit the door frame and adjoining wall nearby and he then fell right laterally to the floor. The arrested person did not clearly describe or demonstrate which parts of the deceased’s body had landed on the floor in the enclosed materials. He helped the deceased to sit on the floor when he realized that the deceased was lying on the floor with bleeding from the back of his head. After that, he immediately left the premises. The arrested person denied to have physically assaulted the deceased by other means during the incident.

V. The hitting of the deceased against the door frame and wall alleged by the arrested person could have produced the injuries to the right upper back of his head, his left ear and his right shoulder.  Provided the fall of the deceased to the floor involved a heavy impact to his face, this could have also accounted for the injuries to his face.  As to the rest of the deceased’s injuries, they were few in number and also minor in severity.  These injuries alone are not suggestive of a struggle or physical assault.  As such, the scenario alleged by the arrested person is a possible explanation of the deceased’s injuries.”

29.  Dr Ng emphasised in evidence that the applicant had not clearly described or demonstrated which parts of Mr Tsui’s body had landed on the floor and that the applicant had denied having assaulted Mr Tsui in any other way.[81] He also emphasised that the impact to the right side of the face had to be a significant one in order to account for the injuries to Mr Tsui’s face.[82]  Further, the impact against the door frame and the wall, plus Mr Tsui’s falling on the floor, could not have accounted for the other minor injuries found on Mr Tsui’s body.[83]

30.  In Dr Ng’s view, Mr Tsui had died from his head injuries.[84]

Madam Ip’s injuries

31.  On her arrival at the Accident and Emergency Department of Queen Elizabeth Hospital, Madam Ip was conscious but was found to be in a critical condition, with multiple injuries.[85] She was noted to have right peri-orbital bruising with diffused conjunctival haemorrhage and wrist bruising.[86]  X-ray examinations revealed fractures of her distal radii (however, according to the forensic pathologist, the fractures to her wrists occurred at the left scaphoid and the right distal radius[87]), and haziness at the left lower zone of the chest with avulsed teeth in her stomach.[88]  She was placed on an oxygen supply and transferred to the Department of Surgery.[89]  There she was found on trauma CT scan to have fractures to the left 3^rd to 7^th ribs[90] (again, according to the forensic pathologist, Madam Ip’s fractures in the ribcage involved the left 2^nd to 7^th ribs[91]) and a fracture of the right orbital floor.  She was sent to the Intensive Care Unit for observation.

32.  On 14 December 2012, Madam Ip was admitted to the Department of Orthopaedics and Traumatology[92] for treatment of her orthopaedic problems.  Her diagnosis was recorded to be fractures of bilateral wrists, fracture of her orbit, fracture of her left 3^rd to 7^th ribs, thin acute subdural haemorrhage at posterior falx and right tentorium, and subarachnoid haemorrhage with static change.[93]

33.  According to Dr Aaran Leung Heng-chi, Resident Doctor of the Department, the fractures to Madam Ip’s wrists could have been caused by a fall, but if she had not fallen, then they could have been caused by direct trauma consistent with an assault, or they could possibly have been defensive injuries.[94]  Dr Leung gave his opinion that the orbital bone was located in a protected area making it difficult to fracture and, in order to fracture it, a moderate amount of force consistent with a punch would be required[95], which could also have caused the subdural haemorrhage which Madam Ip was found to have suffered.[96]  As to the avulsed teeth in Madam Ip’s stomach, Dr Leung said that it was consistent with her having been hit in the mouth and then swallowing her own dislodged teeth.[97]

34.  On 24 December 2012, Madam Ip was transferred to Kowloon Hospital for rehabilitation[98], but was re-admitted to Queen Elizabeth Hospital the next day due to desaturation for which she was again placed on an oxygen supply.[99] She developed a fever and supraventricular tachycardia.[100]  The clinical diagnosis was “hospital acquired pneumonia” and “pathological grief”.[101]  When her conditions stabilised, she was transferred back to Kowloon Hospital for rehabilitation on 21 January 2013.[102]  There, her condition deteriorated, with unrecordable blood pressure the following day.[103]  She was taken back to Queen Elizabeth Hospital for treatment, but she succumbed on the morning of 23 January 2013.[104]

35.  Dr Leung accepted in evidence that the injuries to Madam Ip’s ribs could have been caused by direct trauma, by falling, or by someone leaning on the ribs with a forearm, but he added that the leaning would have involved a moderate to large force.[105] Further, Dr Leung agreed that a slap could have caused the fracture in Madam Ip’s right orbit, but later qualified his answer by saying that the slap had to be directed towards the eye, and that it would have required a large force.[106]

36.  According to Dr Leung, for the first six to eight weeks of Madam Ip’s hospitalisation, she would have been unable to walk as the use of a walking frame would have caused her pain in the wrists.[107] Her broken ribs would have made her breathing painful, rendering her prone to bronchopneumonia due to the build-up of fluid in her lungs.[108]  Dr Leung said in evidence that Madam Ip had died of bronchopneumonia, which was very likely to develop among patients in hospital who were bed-ridden.[109]

The pathologist’s evidence concerning Madam Ip’s injuries and the cause of death

37.  An autopsy on Madam Ip was carried out on 31 January 2013 by a Forensic Pathologist, Dr Foo Ka-chung.[110] He noted that Madam Ip’s hands were swollen and edematous and there were sizeable bruises in her lower forearms and the adjoining wrists.[111]

38.  In Madam Ip’s cranial cavity were found four deep bruises, two of which reached down to her left and right temporalis muscles.[112] Dr Foo explained in evidence that deep bruises were the result of blunt-force trauma[113], such as an assault to the head[114], including punching[115], kicking[116], or hitting hard with or against a hard object.[117]  It would require, according to Dr Foo, a large amount of force to cause such injuries inside the head[118]; and this kind of deep bruising would last longer than superficial bruising.[119]

39.  In addition, a comminuted fracture of the right orbital floor of the facial skeleton was noted.  According to Dr Foo, it was more likely to have been caused by a forceful punch to the right eye[120] – rather than a slap with a large amount of force[121] – since that particular area of the face was largely protected.[122]  Dr Foo had seen the applicant’s demonstration in the crime reconstruction video of the slap which he claimed he had given Madam Ip; Dr Foo found it inconsistent with the injuries to Madam Ip’s face.[123]

40.  Dr Foo was of the opinion that the four deep bruises and the fracture in the right orbital floor would each require a separate and distinct impact.[124]

41.  He found healing fractures to Madam Ip’s left 2^nd to 7^th ribs[125], which he attributed to significant blunt-force trauma, such as punching, kicking, deliberately stamping or sitting on her, using a large amount of force.[126] At least six separate impacts would have been required to cause such fractures to her ribcage.[127]  While Dr Foo agreed that those injuries could also have been caused by the use of a forearm leaning against Madam Ip’s ribs, he said that it would have had to involve a heavy force[128]; a light leaning on Madam Ip’s ribcage would not have resulted in such fractures, even bearing in mind that the bones of the elderly were more fragile.[129]

42.  Dr Foo noted from the medical records that on admission to the hospital, Madam Ip had blood on the nose and face and that some of her teeth were found in her stomach.[130] He was of the view that these clinical observations were consistent with at least one forceful blow to that area of the face, and that such a forceful blow would also be consistent with the finding of subdural haemorrhage in Madam Ip’s brain.[131]

43.  As to the cause of death, Dr Foo found the presence in Madam Ip of severe, recently developed bronchopneumonia, a condition which could occur in immobilized patients during a prolonged period of hospitalization.[132] In Madam Ip’s case, her reduced mobility was caused, explained Dr Foo, by the fractures in her wrists and those in her ribs, the former rendering it painful for her to use a walking frame to move about: the latter causing her pain in her breathing.[133]

44.  In Dr Foo’s opinion, Madam Ip had died of bronchopneumonia.[134]

The applicant’s arrest and cautioned interviews

45.  There was no dispute that the applicant and Wong were arrested in the evening of 15 December 2012.[135] Under caution, the applicant said: “I only intended to steal something.  (I) didn’t expect that he was killed.”[136]

46.  In his first video recorded interview, the applicant told the interviewing officers the following.  At around 4:00 pm on 13 December 2012[137], he and Wong[138] were at the applicant’s home[139], where they both consumed dangerous drugs.[140]  Since neither of them had much money, they discussed stealing by walking down the building floor by floor to see if anyone might have left their door unlocked.[141]  On reaching the 18^th floor, the applicant found a unit with its door ajar.[142]  Having told Wong to act as a lookout by the staircase in the lift lobby, the applicant went in without making a noise[143], and found a woman asleep.[144]  As soon as he got inside the unit[145], the woman woke up, asked him what he was doing before shouting and making a noise.[146]  The applicant told her to keep quiet, saying it was just money that he had wanted[147], and he then slapped her in the face[148] once or twice[149], pressing[150] or pinning[151] her down with his body[152] at the same time.[153]  In addition, the applicant threatened to tie her up.[154]  Panic-stricken[155], the woman became quiet.[156]  From the pocket[157] of her top[158], the applicant took away the woman’s small, black purse.[159]  There were several thousand dollars and two Octopus cards in the purse.[160]

47.  When he was about to leave, an old man came into the unit and asked him: “What are you doing?”[161] The applicant was at the time holding two tins of milk powder[162] in a plastic bag.[163]  He responded: “Nothing,”[164] or “Keep quiet,”[165] and he pushed the old man in the upper chest[166] – “casually”[167], “just a slight push only”[168], or “accidentally with a great force”.[169]  In consequence, the old man bumped against the corner of the wall[170], receiving “a knock on the head”[171] which bled[172], whereupon he fell to the floor.[173]  Fearing that the old man might suffer a stroke[174], the applicant helped him up.[175]  As he did so[176], he realised that the old man had a mobile telephone in his trouser pocket[177], which he removed.[178]  The old man pulled hard at the applicant’s top.[179]  The applicant then pushed him down to a sitting position.[180]

48.  Just before the applicant left the unit, another old man outside the unit asked him what had happened.  In response, the applicant said words to the effect that the person had fainted and that he had already called the police.[181] Claiming that he was frightened[182], the applicant left the unit, shut its door[183], and rushed to the lift lobby.[184]  Having waited a while for the lift, he hurried upstairs back to his own unit, where he put down the milk powder and changed his clothing.[185]  He then walked several floors down, before taking a lift to the ground floor and heading for Mongkok.[186]

49.  The applicant denied having beaten the male he met in Room 1807.[187] He said there had been no struggle between them[188], and insisted that he had only pushed the man once and with one hand only, as he was holding the milk powder at that time.[189]

50.  In the crime reconstruction video, the applicant demonstrated how he had pressed Madam Ip down and slapped her twice in the face.[190] He also demonstrated how he pushed Mr Tsui, how he helped him up, and how he then saw the milk powder on a table and took it, before leaving in a hurry, taking with him also a bag of clothes and other items, including Mr Tsui’s mobile telephone and wallet.[191]

The defence case

51.  The applicant elected to give evidence before the jury.  He maintained that what he had said in his records of interview and in the crime reconstruction video was true; and he adopted the contents of the two videos as part of his evidence.[192] There was no issue as to voluntariness taken on his behalf or expressed in evidence at any stage of proceedings.

52.  He testified that at around 3:00 pm on 13 December 2012, Wong had visited him at his home where they both consumed dangerous drugs.  This caused him to hallucinate and feel drowsy for a few minutes.[193] Later, when he and Wong went about finding premises from which to steal, he took no tools or weapons with him, since he had no intention of hurting anyone.[194]  Contrary to what he had said in his record of interview, the applicant said in evidence that he had asked Wong to act as lookout for him at the doorway of Room 1807.[195]

53.  As the lights inside Room 1807 were off, the applicant was unaware if there was anyone inside when he entered the unit.[196] When Madam Ip woke up and the applicant told her to be quiet, she shouted for help.[197]  So he slapped her a number of times, but she fended him off with her arms[198], in the course of which he “smashed her several times again in the face.”[199]  Since Madam Ip kept moving, despite being smashed in the face, the applicant pressed her down with his elbow on her ribcage[200], using moderate force.[201]  He did not know how Madam Ip’s ribs were fractured, but suggested that some latent force might have been used.[202]  He insisted he had no intention of injuring Madam Ip.[203]

54.  When he was about to leave the unit, the applicant said that Mr Tsui had appeared and grabbed him by his sleeve to prevent him from leaving.[204] He pushed Mr Tsui, who bumped against the wall and slowly dropped to the floor.[205]  Fearing that an elderly person like Mr Tsui might suffer a stroke, he helped him up, in the course of which he felt Mr Tsui had a mobile telephone and a wallet in his pocket.[206]  Overtaken by greed, he took them.[207]

55.  The applicant explained that when he pushed Mr Tsui, he was very scared and pre-occupied with leaving the flat, and that he had pushed him “with latent force” with no intention to injure him.[208] He said he had comforted Mr Tsui by telling him that he would call the police; but he never did.[209]

56.  He said that when he encountered Mr Leung as he was leaving the premises, Mr Leung asked him who he was looking for, to which question he said: “My auntie”, and added that someone had fainted.[210]

57.  In cross-examination, he agreed at one point that he had pushed Mr Tsui with both hands but insisted that it was not with excessive force.[211] At another stage in cross-examination, he said he had only pushed Mr Tsui with one hand.[212]  It was put to him that in the video-recordings, he had demonstrated pushing Mr Tsui with both hands.[213]  He disagreed that injuries to Mr Tsui’s mouth[214] and eyes were caused by his punching him; indeed, he denied ever touching Mr Tsui’s face.[215]  He further denied dragging Mr Tsui so as to leave him partially inside the toilet[216] (despite the lack of challenge to Mr Leung’s evidence on the point).

The issues at trial

58.  The judge identified the issues for the jury’s determination in the following way:

“ You know that the accused accepts having performed acts which led to each deceased being injured and that each died as a consequence of the injuries he or she sustained. The accused denies murder, saying that when he acted as he did, it was without the intention to kill either of them. Further, as you have been told, the accused has pleaded guilty to the lesser offence of manslaughter on each count. Such a plea necessarily indicates an acceptance of having caused their deaths.

The prosecution does not accept those pleas and it therefore falls to you to determine the criminal liability of the accused.

It is the case of the accused that he had been looking for a flat to burgle in the building - that is the same building which he lived in - where the entrance door was improperly secured. The flat where Mr Tsui and Madam Ip lived together fitted the bill. He went into it in order to steal anything of value which he could find. He says that he only acted as he did towards Madam Ip in order to get her to be quiet whilst he stole and, as he was about to leave the flat, Mr Tsui returned. Mr Tsui took hold of him and the accused pushed him away. Mr Tsui fell as a result and hit his head causing the head injuries. He did not intend, the accused says, that either of them should die.

The prosecution has put its case not on the basis that the accused actually entered the flat intending to kill either of them but, rather, that the evidence shows that he did intend to cause each of them really serious bodily harm.

I will be dealing with the elements which the prosecution needs to prove in order to establish the offence of murder, and also in what ways the prosecution needs to negative the issue of manslaughter by an unlawful act which has been raised by the accused. I will be telling you that for a charge of murder, it is sufficient for the prosecution to prove that the accused person intended to cause the deceased person grievous bodily harm or really serious bodily harm and that it is not necessary to prove a direct intent to kill.

It may seem to you that the real issue in this case which you will have to decide is the state of mind of the accused at the time when he performed those acts. You may also think that the evidence which will be of most assistance to you in this connection is that of the accused himself and that of the various prosecution witnesses, the medical experts.”[217]

59.  On the issue of the possibility that the applicant had acted under the influence of dangerous drugs, the judge reminded the jury of the applicant’s evidence:

“ In his evidence-in-chief, the accused told you that he had been at home in Room 2114 at around 3 pm on 13 December, watching television, when he was visited by the former 2nd accused. They together had consumed some dangerous drugs which had caused him to hallucinate and be drowsy but only for a few minutes.”[218]

Grounds of appeal against conviction

60.  In his home-made grounds of appeal attached to his Notice of application for leave to appeal against conviction filed on 12 June 2014, the applicant simply alleged that the deputy judge had misled the jury by reason of “prejudice, preconception, discrimination, unfairness.”

61.  In an undated letter received by the Court on 22 April 2015, the applicant repeated the gist of his defence advanced at trial, maintaining that (i) he had never thought of killing anyone; and (ii) he had only wanted to steal valuables, but had accidentally caused the deaths of Madam Ip and Mr Tsui.  He also introduced the notion that he was “out of control” at the time of the offences, since his “brain was under the influence of dangerous drugs”.

62.  In a further letter to the Court dated 28 July 2015, the applicant raised effectively four specific grounds of appeal.  First, he repeats the claim that he was acting under the influence of drugs at the time.  Accordingly, he avers that he did not have the intention necessary for murder.  Secondly, he complains that Mr Leung, the neighbour of Madam Ip and Mr Tsui, cannot have seen what he claimed he saw of the applicant dragging someone across the floor inside Room 1807.  The front door was merely ajar and, given the distance between the door and the grille (975 cms, according to the Housing Department plan, Exh P41)[219], the angle of view and the fact that the unit was dimly lit, Mr Leung’s view of the inside of the unit was severely hampered.  Thirdly, the applicant says that the police did not produce the wind-breaker he was wearing at the time of these events, which might have revealed Mr Tsui’s fingerprints when he grabbed the applicant.  Fourthly, he now claims that his records of interview were involuntary.

63.  We should say that Mr McGowan appears before us today with instructions from the Director of Legal Aid to assist the applicant if necessary.  He has not put forward or argued any grounds of appeal, although he has helped the applicant and the Court with certain points of detail arising during argument.

Consideration of the grounds of appeal against conviction

64.  We shall deal first with the assertion that the applicant was acting under the influence of drugs at the time of these events so that he was not capable of forming the intent necessary for murder.  This issue was specifically raised by Deputy Judge Wright with both prosecuting and defence counsel before the summing-up.[220]  In the light of the applicant’s evidence, which we set out below, the judge said he did not think that the issue arose on the facts.  Defence counsel did not demur.

65.  In his evidence in chief, the applicant had explained that he and Wong had consumed dangerous drugs inside the applicant’s unit, after which he had begun to hallucinate and become drowsy.  He was asked how long this reaction had lasted, to which he responded “About a few minutes”.[221] Defence counsel then asked the applicant about his condition at the time he and Wong had walked down the building floor by floor looking for suitable units to steal from.  The evidence went as follows[222]:

“Q. So by the time you walked downstairs, I mean you went downstairs, did you feel … any hallucination or drowsiness?

A. Not much.

Q. Right, so you -- did you know what you were doing at that time then?

A. Yes, I knew.”

In view of these answers from the applicant himself, it is hardly surprising that the judge did not consider the issue of whether the applicant was acting under the influence of drugs at the time of the offences to be a live one.  Moreover, defence counsel himself cannot have thought it relevant or significant because it did not feature at all in his address to the jury.[223]

66.  In our judgment, there is nothing in this point at all.  The applicant’s own evidence was that he knew what he was doing at the time of the events inside Room 1807, and no question was ever raised throughout the trial, in evidence or submission, concerning the effect of any drug intoxication on his intent. Plainly, this is something which has occurred to the applicant since conviction.

67.  The second complaint concerns the evidence of Mr Leung.  We do not see how this helps the applicant.  It was never disputed at trial that the applicant was the man observed inside Room 1807; nor was it disputed that he had an altercation with Mr Tsui; nor was it disputed that the door was ajar affording Mr Leung a view of the inside of the unit; and nor was it disputed that the applicant and Mr Leung had a brief conversation about a person inside Room 1807, who Mr Leung thought had fallen down (and who at the time he thought might have been Madam Ip).  Indeed, Mr Leung’s evidence was not challenged at all.  It is not open to the applicant upon appeal to accuse Mr Leung, as he has done, of lying and of being inaccurate in his observations or recollection of his conversation with the applicant, when these matters were never put to Mr Leung for him to comment upon.  We see no reason to impugn Mr Leung’s evidence, which was fully before the jury, along with the Housing Department plan, Exh P41, and the police sketch, Exh P40 and 40A.[224]

68.  On the third issue concerning the applicant’s clothing, we cannot see how this can conceivably assist the applicant.  Again, it was not disputed that he was the man inside Room 1807, nor was it disputed that he had had physical contact with Madam Ip.  Indeed, it was an admitted fact that the applicant’s shirt was seized and forensically examined by a Government Chemist for fibre contact between him and the two deceased.  The admission so far as Madam Ip’s clothing was in these terms:

“The results showed that fibres from D1’s T-shirt that he was wearing at the time of the incident (Exh P94) were found on a shirt (Exh P11), a vest (Exh P14) and a pair of trousers (Exh P15) which (Madam Ip) had been wearing at the time of the incident. These findings indicate that there had been contact between D1’s T-shirt and the clothing of (Madam Ip).”[225]

69.  In any event, the jury were reminded of the dispute as to the applicant’s clothing, such as it was, by the deputy judge in his summing-up, when he reviewed the evidence of Detective Sergeant Chung.[226]

70.  It seems that the point behind this complaint is that if the police had seized what the applicant says was the right garment, they could have fingerprinted it to establish that Mr Tsui had grabbed his clothing first.  We are extremely doubtful that fingerprints could be obtained from a fabric or garment.  In any event, the issue of what the applicant was wearing at the time was the subject of cross-examination and was properly before the jury.[227] There is nothing in this point.

71.  Finally, it is now contended that the records of interview were involuntary.  The applicant appears to have forgotten that no challenge was made to the records of interview when they were produced by Detective Sergeant Chung, who was not cross-examined by defence counsel at all. Furthermore, when the applicant gave evidence, he specifically adopted what he had said in his video recorded interviews as his evidence.  There is no substance whatsoever in the complaint which is now made.

Conclusion

72.  Nothing which the applicant has raised in written form, supplemented by his oral remarks before us, has caused us any concern whatsoever about the safety of the applicant’s convictions.  Moreover, we consider the summing-up to have been extremely fair and complete in its recitation of evidence, exposition of the law and identification of the issues at trial.

73.  For these reasons, the application for leave to appeal against conviction was refused.

[1] The Summing-up (“SU”) at page 19J-O of the Appeal Bundle (“AB”); and Paras.2 and 3 of the Admitted Facts (“AF”) at page 11 of AB

[2] Para.7 of AF at page 13 of AB

[3] Ditto

[4] Para.1 of AF at page 11 of AB

[5] Para.9 of AF at page 14 of AB

[6] Para.9 of AF at page 14 of AB

[7] According to para.6 of AF at page 13 of AB, the times shown on the CCTV recordings were about 10 minutes slower than the actual time

[8] Para.6 of AF at page 12 of AB and see the photograph in Exh P31(3)

[9] Para.4 of AF at page 12 of AB

[10] Para.5 of AF at page 12 of AB

[11] Ditto

[12] See the photograph in Exh P31(4)

[13] Actual time

[14] Para.5 of AF at page 12 of AB

[15] Para.10 of AF at page 14 of AB

[16] Para.8 of AF at pages 13 and 14 of AB

[17] Para.15 of AF at page 15 of AB

[18] Para.14 of AF at page 15 of AB

[19] SU at page 35P-R of AB

[20] SU at page 35R-S of AB

[21] SU at page 35T-U of AB

[22] SU at pages 35U-36C of AB

[23] SU at page 36C-E of AB

[24] SU at page 36B-C of AB

[25] SU at page 32P-R of AB

[26] SU at page 31K-L of AB

[27] Ditto

[28] SU at page 31L-M of AB

[29] Ditto

[30] SU at page 31S-T of AB

[31] SU at page 31P-Q of AB

[32] SU at page 31N-O of AB

[33] SU at page 31O-P of AB

[34] SU at page 31R of AB

[35] SU at page 31R-S of AB

[36] SU at page 31S-U of AB

[37] Ditto

[38] SU at pages 31U-32A of AB

[39] SU at page 32A-B of AB

[40] Ditto

[41] SU at pages 32R-33B of AB

[42] SU at page 33C-F of AB

[43] SU at page 33H-M of AB

[44] SU at page 33C of AB

[45] SU at page 33R-U of AB

[46] SU at page 33I-J of AB

[47] SU at page 33L-M, and page 34B-C of AB

[48] SU at page 33M-O of AB

[49] SU at page 19G

[50] Dr S M Choy’s report dated 28/4/2013 at Exh P199

[51] SU at page 44L-Q of AB

[52] Dr Gary K Y Yu’s report dated 6/9/2013 at Exh P200; SU at page 44R of AB

[53] SU at page 44R-S of AB

[54] Dr Gary K Y Yu’s report dated 6/9/2013 at Exh P256

[55] Ditto

[56] SU at page 45J-L of AB

[57] SU at page 45A-B of AB

[58] Dr Gary K Y Yu’s report dated 6/9/2013 at Exh P256

[59] Ditto

[60] Ditto

[61] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS)

[62] Autopsy report of Dr C K Ng dated 18/4/2013 at Exh P208

[63] SU at page 45M-P of AB

[64] Autopsy report of Dr C K Ng dated 18/4/2013 at Exh P208

[65] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS), and Autopsy report of Dr C K Ng dated 18/4/2013 at Exh P208

[66] SU at page 45Q-U

[67] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS)

[68] Autopsy report of Dr C K Ng dated 18/4/2013 at Exh P208

[69] Autopsy report of Dr C K Ng dated 18/4/2013 at Exh P208

[70] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS)

[71] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS)

[72] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS)

[73] Autopsy report of Dr C K Ng dated 18/4/2013 at Exh P208

[74] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS)

[75] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS)

[76] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS)

[77] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS) ; SU at page 46A-C

[78] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS)

[79] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS)

[80] SU at page 47Q-S and page 60T-61M of AB

[81] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS)

[82] Dr Ng’s evidence in-chief on 20/5/2013 (DARTS)

[83] SU at page 47Q-S and page 48 K-R of AB

[84] Autopsy report of Dr C K Ng dated 18/4/2013 at Exh P208

[85] Dr K W Suen’s report dated 19/4/2013 at Exh P203

[86] Dr K W Suen’s report dated 19/4/2013 at Exh P203

[87] Autopsy report of Dr K C Foo dated 7/5/2013 at Exh P209

[88] Ditto

[89] Dr K W Ma’s report dated 26 June 2013 at Exh P205

[90] Dr Ma appeared to have made a mistake when he said “right” 3^rd to 7^th ribs in his report.  But see the autopsy report at Exh P209.

[91] Autopsy report of Dr K C Foo dated 7/5/2013 at Exh P209

[92] Dr K W Ma’s report dated 26 June 2013 at Exh P205

[93] Dr Aaran H C Leung’s reported dated 20 May 2013 in Exh P204

[94] SU at page 39I-L of AB

[95] SU at page 39L-P of AB

[96] SU at page 40B-E of AB

[97] SU at page 40E-G of AB

[98] Dr Aaran H C Leung’s reported dated 20 May 2013 in Exh P204

[99] Dr Aaran H C Leung’s reported dated 20 May 2013 in Exh P204

[100] Dr Aaran H C Leung’s reported dated 20 May 2013 in Exh P204

[101] Dr Aaran H C Leung’s reported dated 20 May 2013 in Exh P204

[102] Dr Aaran H C Leung’s reported dated 20 May 2013 in Exh P204

[103] Dr Aaran H C Leung’s reported dated 20 May 2013 in Exh P204

[104] Dr Aaran H C Leung’s reported dated 20 May 2013 in Exh P204

[105] SU at page 39P-T of AB

[106] SU at page 40T-41C of AB

[107] SU at page 40L-P of AB

[108] SU at page 40N-Q of AB

[109] SU at page 40J-L of AB

[110] Autopsy report of Dr K C Foo dated 7/5/2013 at Exh P209

[111] Autopsy report of Dr K C Foo dated 7/5/2013 at Exh P209

[112] Autopsy report of Dr K C Foo dated 7/5/2013 at Exh P209

[113] SU at page 41Q of AB

[114] SU at page 41S of AB

[115] SU at page 41T of AB

[116] SU at page 41T of AB

[117] SU at page 41Q of AB

[118] SU at page 41T-U of AB

[119] SU at page 41R of AB

[120] SU at page 42A-C of AB

[121] SU at page 43T-44D of AB

[122] SU at page 42A-C of AB

[123] SU at page 43P-R of AB

[124] SU at page 42B-C of AB

[125] Autopsy report of Dr K C Foo dated 7/5/2013 at Exh P209

[126] SU at page 42E-H of AB

[127] SU at page 43H-J of AB

[128] SU at page 42E-H of AB

[129] SU at page 43F-H of AB

[130] SU at page 42E-H of AB

[131] SU at page 42E-H of AB

[132] Autopsy report of Dr K C Foo dated 7/5/2013 at Exh P209

[133] Autopsy report of Dr K C Foo dated 7/5/2013 at Exh P209

[134] Autopsy report of Dr K C Foo dated 7/5/2013 at Exh P209

[135] Para.10 of AF at page 14 of AB

[136] Page 75 of AB

[137] AB, page 173, counter nos.55 and 57

[138] AB, page 174, counter no.61

[139] AB, page 173, counter no.55

[140] AB, page 174, counter nos.61, 70 and 71

[141] AB, page 174, counter no.61; page 178, counter no. 75; page 179, counter no. 82 to page 180 counter no.83

[142] AB, page 175, counter no.61

[143] AB, page 185, counter no.117

[144] AB, page 175, counter no.61

[145] AB, page 185, counter no.117

[146] AB, page 185, counter no.117-121

[147] AB, page 186, counter no.121

[148] AB, page 185, counter no.119; page 186, counter no.121

[149] AB, page 175, counter no.61

[150] AB, page 175, counter no.61

[151] AB, page 231, counter no.438

[152] AB, page 175, counter no.61

[153] AB, page 229, counter nos.429 and 430; page 232, counter no.451 to page 233, counter no.452

[154] AB, page 186, counter no.123; and page 229, counter no.428

[155] AB, page 227, counter no.418

[156] AB, page 188, counter no.134

[157] AB, page 175, counter no.61

[158] AB, page 188, counter nos.136-142

[159] AB, page 189, counter nos.143-149

[160] AB, page 190, counter no.158; and page 191, counter no.163

[161] AB, page 175, counter no.61

[162] AB, page 223, counter no.387

[163] AB, page 196, counter no.198

[164] AB, page 175, counter no.61; and page 222, counter no.383

[165] AB, page 191, counter no.166

[166] AB, page 194, counter no.182

[167] AB, page 175, counter no.61

[168] AB, page 194, counter no.184

[169] AB, page 193, counter no.176

[170] AB, page 175, counter no.61 to page 176, counter no.61

[171] AB, page 193, counter no.176

[172] AB, page 195, counter no.188

[173] AB, page 175, counter no.61 to page 176, counter no.61

[174] AB, page 193, counter no.176; and page 223, counter no.389

[175] AB, page 176, counter no.61

[176] AB, page 252, counter no.595

[177] AB, page 251, counter no.589

[178] AB, page 239, counter no.494; page 250, counter nos.574-581

[179] AB, page 176, counter no.61; and page 224, counter no.398

[180] AB, page 176, counter no.61

[181] AB, page 218, counter nos.352-356

[182] AB, page 193, counter no.176; page 219, counter nos.359; and page 259, counter no.649

[183] AB, page 220, counter no.367

[184] AB, page 176, counter no.61

[185] AB, page 176, counter no.61

[186] AB, page 176, counter no.61

[187] AB, page 196, counter no.192

[188] AB, page 225, counter no.400

[189] AB, page 226, counter no.407 to page 227, counter no.414

[190] AB, page 352, counter no.111 to page 353, counter no.116; and page 359, counter no.156

[191] AB, page 360, counter no.162 to page 361, counter no.164; page 364, counter no.183 to page 369, counter no.222; page 372, counter no.244; page 374, counter no.258; pages 375-6, counter no.264

[192] SU at page 49A-D of AB

[193] SU at page 49E-H of AB

[194] SU at page 49K-M of AB

[195] SU at page 49Q-S of AB

[196] SU at page 50A-B of AB

[197] SU at page 50C-D of AB

[198] SU at page 50C-E of AB

[199] SU at page 50E-F of AB

[200] SU at page 50F-G of AB

[201] SU at page 50G of AB

[202] SU at page 50G-H of AB

[203] SU at page 50H-I of AB

[204] SU at page 50M-O of AB

[205] SU at page 50N-P of AB

[206] SU at page 50P-T of AB

[207] SU at page 50P-T of AB

[208] SU at page 51A-D of AB

[209] SU at page 51C-E of AB

[210] SU at page 51H-J of AB

[211] SU at page 52E-F of AB

[212] SU at page 55F-I of AB

[213] SU at page 55F-I of AB

[214] SU at page 54P-Q of AB

[215] SU at page 55F of AB

[216] SU at page 54Q-R of AB

[217] SU at page 19K-20L of AB

[218] SU at page 49E-H of AB

[219] AB, page 598

[220] AB, page 568

[221] AB, page 470P-Q

[222] AB, page 470T-471B

[223] AB, page 502-505

[224] AB, page 596

[225] AB, para.15 at page 15

[226] SU at page 37J-L

[227] AB, page 496J-498I