HKSAR v. LIU AIJIN

CACC 98/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 98 OF 2008

(ON APPEAL FROM HCCC NO. 217 of 2007)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  On 27 February 2008, Liu Aijin (the applicant) was convicted of the murder of her husband, Wong Hing-lam (the deceased), following a trial before Deputy High Court Judge Lugar-Mawson.  She was sentenced on the same day to life imprisonment and now seeks leave to appeal against her conviction and sentence.

2.  We can dispose of the application in regard to sentence straightaway.  It has been explained to the applicant that no appeal lies against a life sentence for murder as this is mandatory in the case of an adult.  As a result, she has not sought to pursue it and that application is dismissed.

3.  The application, so far as it concerns her conviction, is proceeded with on homemade grounds.  Mr McCoy, SC, has indicated that he has not been able to find any arguable grounds of appeal.

The facts

4.  Mr Zervos SC, on the respondent’s behalf, has helpfully provided an accurate synopsis of the facts which, in large measure, we propose to adopt.  The circumstances in which the deceased was killed were not complicated.  In essence, the applicant had been carrying on a relationship with a man in the Mainland who arranged for someone to kill her elderly husband.  The applicant allegedly fell in with the plot and duly left open the door to her flat so that the killer could enter at night to kill the deceased.  This occurred on 31 July 2006.

The prosecution’s case

5.  The applicant, aged 40 at the time of her conviction, married the deceased in the Mainland on 27 December 2000.  She had two young sons from a previous marriage.  The deceased, aged 75 at the time of his death, lived in Hong Kong with the applicant and her second son in a flat in Wong Tai Sin.  The applicant's other son lived in the Mainland with members of the family.

6.  The death of the deceased was reported by the applicant and, initially, it was not treated as suspicious.  However, at the mortuary on the following day, the forensic pathologist raised questions about injuries found on the deceased’s body.  It was noticed that the applicant reacted oddly when she heard about this and then, unsuccessfully, tried to dispense with the need for a post mortem examination.  She left for the Mainland before this was conducted on 2 August 2006. 

7.  Prior to leaving Hong Kong, the applicant met To Chi-kin at a park in Wong Tai Sin and he assisted her in some personal matters.  After she had returned to the Mainland, she telephoned Mr To and told him that her husband had been murdered as her boyfriend in the Mainland did not like her living with the deceased.  She said that her boyfriend had arranged for a friend to come to Hong Kong to carry out the killing.  She agreed to this and allowed the killer to enter the flat where they resided.  She said that he had suffocated the deceased.  She said that, although frightened, she had watched the incident.  Telephone records produced at trial confirmed the telephone contact between the applicant and Mr To.

8.  On 2 August 2006, Dr Lam Wai-kwok, the forensic pathologist, concluded the cause of death was pressure on the nose, the mouth and the neck.

9.  The applicant was apprehended in the Mainland and handed over to the Hong Kong Police on 22 March 2007.  She was interviewed on 22 and 23 March 2007 when video recordings were made.

10.  In the first interview, the applicant said that her boyfriend gave her a call on the night prior to the deceased's death.  She was told to open the door to the flat when a man who was not known to her arrived.  She felt suspicious as to why an unknown male would want to stay in the flat overnight but she did not ask for an explanation.  She said she did not know that this man was coming to kill the deceased.  Some time later, the unknown male asked the applicant over the telephone to open the front door as he was waiting outside.  Once he had been let in, the applicant told him to make himself at home.  She then went into the bedroom she shared with the deceased who was asleep on the bed.  A little while later, the unknown man came into the bedroom.  He was wearing gloves and he smothered the deceased with his hands.  The applicant was frightened.  She grabbed her younger son and went to the living room.  The unknown man came out of the bedroom about thirty minutes later and threatened to harm the applicant’s son in the Mainland if she revealed to the police what he had done.  After this man had left, her boyfriend called her and similarly threatened her.

11.  In the second interview, on which the prosecution largely based its case, the applicant gave a different account.  She admitted that, on the night prior to the deceased's death, she was told over the telephone by her boyfriend that a man she did not know was going to kill her husband.  She was required to open the door to the flat when this man arrived.  She said she was frightened but she complied.  She opened the front door and let the man in, fully aware of what he was proposing to do to the deceased.  After she had done this, the applicant went inside her bedroom and lay on the bed beside the deceased and her younger son.  Both of them were asleep.  She did not lock the door to the bedroom.  After about ten to fifteen minutes, the man came into the bedroom.  He was wearing gloves when he smothered the deceased with his hands.  The applicant said that she then carried her younger son into the living room.

The defence case

12.  The applicant did not give evidence or call witnesses on her own behalf.  Her case was presented on the basis that she had no prior knowledge of a plan to kill the deceased that night.  It was suggested that the applicant had provided answers in the two video-recorded interviews based on knowledge she had gained with hindsight and that she was not fully able to express herself during the lengthy interrogations because she had been constantly interrupted by the statement taker.  Allegations against the police, of ill-treatment and threats, were also put forward on the applicant’s behalf.

Grounds of appeal

13.  The applicant has set out in her homemade grounds an extensive description of how she had been leading a happy life with the deceased before the man she calls “the undesirable friend, Liu Jinwen” with whom she had a brief relationship, began pestering her and demanding that she should obtain a divorce in order to develop her relationship with him.  She went on to relate how Liu Jinwen’s friend, Liu Shuiquan, came down to stay for a night, repeating a similar account to the first one she had given to the police.  Subsequently, when she was in the Mainland, she received threats to her life.

14.  The judge summed up the law and the facts in a balanced and fair manner, dealing with the central issue in the case as follows:

“In this case, members of the jury, you may only convict the defendant of Wong Hing-lam's murder if you are sure that the unknown man himself is guilty of that murder and, further, that the defendant, knowing that the unknown man had come to the flat to kill Wong, herself intentionally assisted or encouraged that unknown man to attack Wong, the defendant herself intending that the unknown man should kill Wong or cause him really serious bodily harm. Or - and it is an 'or' situation - that when she gave that assistance or encouragement to the unknown man, she foresaw or contemplated as a real possibility that the unknown man would attack Wong with the intention of killing him or causing serious bodily harm. If you are not sure of those facts, you must find the defendant not guilty.

That, members of the jury, to my mind is the real and the only issue in this case.

Did the defendant know that the unknown man had come to the flat to kill her husband Wong Hing-lam?

With that knowledge, did she herself intentionally do something to assist or encourage that unknown man to attack Wong Hing-lam and, at the time she did that something - let me repeat - at the time she did that something - did she herself intend that the unknown man should kill Wong or cause him really serious bodily harm?

Or did she, at the time that she did that something - and again I repeat, at the time she did that something - foresee or contemplate as a real possibility that the unknown man would attack Wong with the intention of killing him or causing him really serious bodily harm?” (Appeal bundle p. 12)

15.  There are, as Mr McCoy has rightly conceded, no arguable grounds of appeal.

Conclusion

16.  This application is dismissed.