HKSAR v. ZHANG WENJI

CACC 71/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 71 OF 2015

(ON APPEAL FROM HCCC NO. 171 OF 2014)

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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.  The applicant sought leave to appeal against his conviction, on his pleas of guilty before Zervos J on 23 February 2015 of three counts of murder, namely of Madam Zhang Guilian, and their children Zhang Dan and Zhang Lun on or about 25 July 2013.

2.  Mr Boyton, who had been assigned as counsel by the Department of Legal Aid, appeared at the hearing having informed the Court in advance that he was unable to advance any grounds of appeal against conviction on behalf of the applicant but, nevertheless having indicated that he would seek to assist the Court where possible.  We refused the application for leave to appeal against conviction and said that we would give our reasons in due course.  That, we do now.

The facts

3.  On being arraigned the applicant admitted the Summary of Facts, which was read out in Court.  In doing so, he admitted that he had killed Madam Zhang and their two children, namely their 8 year-old daughter, Zhang Dan, and their 7 year-old son, Zhang Lun.  The applicant and Madam Zhang cohabited on the Mainland where their children were born.

4.  In late 2006 Madam Zhang married Li Wai Tat, an elderly Hong Kong resident, and thereafter cohabited with him in public housing in Oi Tung Estate, Shau Kei Wan.  In 2013, Mr Li died and Madam Zhang became the tenant of those premises.

5.  At about 11:50 hours on 25July 2013 firemen broke into those premises, which were the suspected source of a gas leak.  There, they found heavily bloodstained bodies of Madam Zhang and her two children, who were certified at the premises to be dead.  A bloodstained hammer was found near the body of Madam Zhang.  The applicant was lying unconscious on a bed.  A bloodstained chopper was found beside him.  He was found to have a deep cut wound on his left wrist and was admitted to Eastern Hospital for treatment of that injury and for carbon monoxide poisoning.  There was a main gas switch which was attached to a copper pipe, but no gas cooker connected to the pipe.  However, the switch was in the “On” position in which position it allowed gas to leak into the premises.

6.  A bloodstained calendar was found next to where the applicant lay, on which the applicant had written:

“ Since my wife was unfaithful, which forced my whole family to death. I am taking my kids to die together. It would only be fine to have my kids together under the earth. Let me call Dad and Mum for the last time, OK? It (incomprehensible) to leave my kids in this world, so I am taking them all to die together. Because my wife had a bogus marriage, married Lee Wai Tat, now that Zhang Giilian has got a Hong Kong identity card and jilted me. The bogus one became real. Therefore, my whole family is on the way to death.”

7.  Forensic pathologists, who arrived at the premises in the afternoon of 26 July 2013, estimated the time of death of the three deceased was within one day or so prior to their examination.

8.  In a subsequent post-mortem examination Madam Zhang was found to have sustained no fewer than 24 hammer blows to her head, which resulted in multiple fractures of the skull, leading to intracranial bleeding which rendered her unconscious.  In addition, she had sustained an 11 cm long, 2 cm deep gaping wound to the right front of lower neck, which had severed her right carotid artery, internal jugular vein and the vagus nerve.  Bruising to her left arm was consistent with defensive injuries in resisting the attack. In contrast to her children, there was no carboxyhaemoglobin in her blood, indicating the inhalation of carbon monoxide.  It was the opinion of the forensic pathologist that she had died from “chop wound to neck after blunt head injuries,” between the afternoon of 24 and evening of 25 of July 2013.

9.  A post-mortem examination of both the children had revealed that they had sustained skull fractures with internal bleeding in the skull.  Also, each of them had bruising to their hands.  Further, both of them had significant saturation of carboxyhaemoglobin in their blood, indicating that they were alive at the time of gas leak.  It was the opinion of the pathologist that in each case they had died from “head injuries and carbon monoxide poisoning”.  The former injuries were consistent with hammer blows to the head.  The injuries to the hands were consistent with being defensive injuries.  It was the opinion of the forensic pathologist that they had died shortly after their mother, Madam Zhang. 

10.  After Madam Zhang came to live in Hong Kong her children, whom she visited regularly, continued to live on the Mainland where they were looked after by members of her family.  In light of the turbulent relationship she enjoyed with the applicant, on 27 November 2012 she obtained an order for the custody of her children of the People’s Court of Ziju County, Guangdong Province.

11.  After the death of Mr Li, who died in March 2013, the applicant pressured Madam Zhang to marry him, so that he too could obtain Hong Kong residency.  She refused.  In face of rows between the two of them, in which the applicant threatened to kill Madam Zhang, the police were called.  Then, the applicant returned to the Mainland.  However, from time to time he returned to Hong Kong with his children.  On 29 April 2013, the case was referred by the Family and Child Protective Services Unit of the Social Welfare Department to the Caritas Integrated Family Service.  Madam Zhang continued to complain of pressure by the applicant that they resume their relationship, which she resisted.

12.  Having visited her children on the Mainland a few days earlier, on 23 July 2013 Madam Zhang returned to Hong Kong together with the applicant and their two children. On 24 July 2013, Madam Zhang complained on the telephone to her parents that she continued to have rows with the applicant who accused her, which allegations are not true, of having an affair with another person.  In the afternoon, without any notice, Madam Zhang attended the Caritas Centre with the applicant and their children, complaining to a social worker that the applicant had threatened to kill her parents if she did not marry him.  Also, that the applicant had checked her telephone to see if she was in contact with another man.  The applicant admitted having done that and said that he wanted to marry Madam Zhang, so that the family could be re-united.

13.  Subsequently, shortly after 8 p.m. the applicant and Madam Zhang, together with their two children visited the home of a friend, Ms Chen, in Shau Kei Wan, to whom Madam Zhang had complained earlier of her ill-treatment at the hands of the applicant.  Madam Zhang appeared to have been crying and her children looked frightened.  Madam Zhang said that she wished to relinquish her Hong Kong residency and return to the Mainland. 

14.  At 21:44 hours CCTV recorded the fact that the applicant, Madam Zhang and their two children entered the building where Madam Zhang lived.  None of them were seen to leave thereafter. At about 23:30 hours, Ms Lau, a neighbour living on the floor below was awakened by sounds of “bang” which lasted for 5 minutes, followed by a man’s voice shouting loudly “Get out” in Mandarin; after that she heard the crying of a boy and a girl which lasted 5-10 minutes.  Then, everything went quiet. 

Grounds of appeal against conviction

15.  In his home-made grounds of appeal attached to Form XI, and in various written submissions in letters to the Court, the applicant submitted that at the time of the offences:

(i) he was suffering from schizophrenia and affected by mental illness and did not intend to kill [1];

(ii) he had consumed alcohol and was drunk, and as a result he lost his consciousness / lost his senses and acted out of character [2];

(iii) Madam Zhang attacked him in the first place [3];

(iv) that he had been suffering from amnesia and had “experienced symptoms of petrification at times” since he was hit and injured by Madam Zhang [4];

(v) that his legal representative failed to raise the above points on his behalf and had victimised and entrapped him, even though he had related the entire course of incident to him [5]; and

(vi) further, the police forged his signatures, and fabricated false evidence against him, in matters related to his video-recorded interview on 28 July 2013 when he was in hospital [6].  Also, he had been beaten by “powerful people from the police” [7].  Further, the CCTV records depicting his movements leaving and entering the building on 25 and 26 July 2013 were missing.[8]

16.  In submissions unrelated to his grounds of appeal against conviction, the applicant complained that he had the right to know whether the DNA of his children matched his, so that they were his biological children [9].  He said he came to Hong Kong to help his brother purchase something.[10]  Finally, he complained that the sentence was excessive [11]. 

17.  In his oral submissions, the applicant asserted that he had not beaten the back of his children’s hands and had not cut Madam Zhang’s throat.  He said that Dr Cheung was wrong to say that habitually the applicant consumed more than 8 to 9 taels of distilled alcohol that he consumed on the night of the killings. In fact, his habitual consumption was only 1 to 2 taels of alcohol.  In other respects, the appellant’s submissions related to matters not relevant to his application, including the whereabouts of his wallet, its contents and his mobile phone, together with the fact that there was no jury present at his arraignment and sentencing.

Respondent’s submissions

18.  For the respondent, Mr Martin Hui SC submitted that the applicant’s grounds of appeal were all devoid of merit and his complaints were ill-founded and misplaced. The applicant’s assertion that Madam Zhang attacked him first was a bare allegation, and his accusations against his lawyer and the police were unfounded and misconceived.  Those suggestions were contrary to the applicant’s unequivocal pleas to the three counts of murder and his unreserved acceptance of the Summary of Facts.

19.  Of the applicant’s complaint of psychiatric illness, the respondent invited the Court to note that it was contrary to the various psychiatric reports.  In particular, Mr Hui pointed to the fact that in their respective reports Dr Amy CY Liu and Dr Dorothy Tang said that the applicant had admitted to each of them that he had lied to them respectively and asserting that he had a psychiatric history.[12]

20.  Mr Hui submitted that the only report that in any way supported the applicant’s claim to be suffering from psychiatric illness was that of Dr Jimmy Dong.[13]  It was based on the history elicited from the applicant, including a statement that in 2008 on the Mainland he had been diagnosed as suffering from schizophrenia, for which he had been prescribed medication for three months.[14]  It was Dr Dong’s opinion that the applicant had been suffering from hitherto undiagnosed epilepsy[15] and that his actions in killing the three deceased were caused by epileptic automatism, over which the applicant had no control.[16]

21.  By contrast, Dr Liu[17] and Dr Tang[18] each said in their second reports that they had specifically considered Dr Dong’s report.  Nevertheless, it was Dr Liu’s opinion that, “there is no evidence suggesting that Zhang is suffering from any formal psychiatric illness.  Given that from (sic) the information available, there is also no evidence suggesting that Zhang is suffering from epilepsy.”  Similarly, Dr Tang said of the appellant, “Zhang is not opined to suffer from any formal psychiatric diagnosis or epilepsy in view of his stable mental condition during remand with no medication treatment.”

22.  Of the applicant’s claim that he had lost his senses as a result of his consumption of alcohol, the respondent referred the Court to Dr Cheung’s report, that:[19]

“ …the amount of alcohol [the applicant] claimed he had taken at the moment of the offences was lower than the habitual amount he drank in China, as the alcoholic drink he took this time was weaker. In other words, he should not be in a heavily intoxicated state then. In this case the alcohol has probably contributed to the offences by its disinhibiting effect as explained above, but should not alleviate his criminal responsibility in terms of Diminished Responsibility or Legal Insanity. ”

A consideration of the submissions

23.  On arraignment on 23 February 2015, the applicant tendered pleas of guilty to each of the three counts of murder.  First of all, Mr Whitehouse, who represented the applicant in the lower Court, informed the Court, “…I should confirm the defendant has been properly advised and that his pleas are in accordance with our instructions.”  Mr Whitehouse went on to confirm that the Summary of Facts had been interpreted to the applicant in the Hakka dialect and that they were “agreed”.[20]  Then, the Summary of Facts was read out in court and interpreted to the applicant in the Hakka dialect.  However, when, at the suggestion of Mr Whitehouse, the judge asked the applicant to confirm in person whether or not he understood those facts, the applicant indicated that he did not understand some of the facts.[21]  The applicant explained that he did not chop the heads of his children and there were no abrasions to their hands.  In those circumstances, the judge adjourned the hearing to enable Mr Whitehouse to confer with his lay client.

24.  At the resumed hearing Mr Whitehouse said:

“ MR WHITEHOUSE: …my Lord, there are two matters relating to the summaries. He said he didn’t accept there was injuries to the son’s elbow and hand.

COURT: Well that’s the medical evidence.

MR WHITEHOUSE: Yes, that’s the medical evidence, and the opinion of the pathologist was that they were defensive injuries. Similarly, my Lord, in relation to the daughter there was bruising over the left -- over the left and right hands, and the pathologist was of the opinion that these were defensive injuries.

The defendant’s difficulty was, and I repeat he is not a well-educated man, he didn’t quite understand what was being expressed in the Summary of Facts when that was interpreted to him. My instructions are now that he does accept that, and your Lordship will just have to ask him that, and perhaps I should also say in defence of my solicitors all this has been explained to him and he has, indeed...

COURT: I don’t doubt that for a moment.

MR WHITEHOUSE:  And he has made a written declaration that he accepts the summary.  But I think it was just a matter of misunderstanding.”

25.  At the direction of the judge, that part of the Summary of Facts in which the injuries to the applicant’s son and daughter discerned by the forensic pathologist, Dr Foo Ka Chung, in the respective post-mortem were described was read out and interpreted to the appellant.  Then, there followed the following interchange between the judge and the applicant:

“ COURT: Mr Zhang, will you please stand up. Now you have had the part of the Summary of Facts read out to you that deals with the injuries as recorded by the medical authorities, and the opinion of the forensic pathologist with respect to your two children, did you understand those facts?

ACCUSED: I understand.

COURT: And do you agree those facts?

ACCUSED: Agree.

COURT: And in relation to what was read out before, the entirety of those Summary of Facts did you understand?

ACCUSED: Yes.

COURT: And did you agree with the entirety of those facts that had been read out before which have been repeated, in part, just now?

ACCUSED:  Agree.”

26.  In his very thorough and most helpful reasons for sentence [22], the judge adverted to the medical reports before the Court and to the consideration that had been made to them at the various pre-trial hearings prior to the applicant’s pleas of guilty.  The judge observed that, “…there have been several pre-trial hearings to ascertain the defendant’s mental state.  He has been seen by four psychiatrists.”

27.  First, of the pre-trial hearing on 27 November 2014 the judge said:[23]

“ it was confirmed that there was no issue that he killed the three victims. At that stage there was the indication that he would plead guilty to manslaughter on the ground of diminished responsibility. There were reports from two government psychiatrists, Dr Amy Liu and Dr Dorothy Tang and the defendant’s psychiatrist, Dr Cheung Hung-kin.”

28.  Of those reports, the judge said:[24]

“ Dr Liu in her report dated 5 March 2014 was of the opinion that the defendant did not manifest any psychiatric symptom or suffer from any psychiatric illness and was fit to plead.

Dr Tang in her report dated the same date, 5 March 2014, was of the opinion that the defendant did not suffer from any formal psychiatric diagnosis and was fit to plead.

Dr Cheung in his report dated 13 November 2014 was of the opinion that the defendant was a jealous man whose jealousy probably built up and was waiting to explode.”

29.  The judge went on to say of Dr Cheung:[25]

“ It should be noted, however, that Dr Cheung was of the opinion that the defendant cognitively appreciated the grave consequences of his acts and that he knew what he was doing and that he knew what he was doing was wrong. He concluded that on the material there was no evidence that the defendant suffered from any abnormality of mind and that he was fit to plead.”

30.  Of the next pre-trial review, held on 4 February 2015, the judge noted that there was available to the court updated reports from both Dr Liu and Dr Tang, dated 27 and 29 January 2015, together with a report from Dr Dong Yuet Sum, Jimmy.

31.  Of Dr Dong’s report, the judge noted that he:[26]

“ …diagnosed that the defendant suffered with epilepsy and that his actions were caused by epileptic automatism over which he would have had no control. He based his diagnosis on what he had been told by the defendant whose account of his past behaviour varied with the different psychiatrists.”

32.  By contrast, the judge said of the updated reports of the other two psychiatrists:[27]

“ Dr Liu, in her updated report dated 27 January 2015, noted that the defendant had given an inconsistent account of his psychiatric history, and that he admitted that the references by him of seeing a psychiatrist as an outpatient were untrue and that he never saw a psychiatrist before this offence. She also clarified with him about his past behaviour and conduct which did not suggest him having had any experience suggesting epilepsy. She concluded that from the assessment and observation of the defendant at Siu Lam Psychiatric Centre there was no evidence suggesting that he was suffering from any formal psychiatric illness, and that given the information available there was also no evidence suggesting he was suffering from epilepsy.

Dr Tang, in her updated report dated 29 January 2015, concluded that in her opinion the defendant did not suffer from any formal psychiatric diagnosis or epilepsy in view of his stable mental condition during remand with no medication treatment.

Doctors Liu and Tang were able to observe the defendant’s behaviour during the period he was in remand at the Siu Lam Psychiatric Centre, and they found no evidence suggesting that he was suffering from epilepsy.”

33.  Next, the judge said of the position taken by those representing the applicant:[28]

“ After confirming his instructions, Mr Whitehouse advised the court on 11 February 2015, that the defendant would plead guilty to all three murder counts.”

34.  Then, the judge noted that in the course of mitigation, in seeking to offer some sort of explanation of the circumstances of the killings, Mr Whitehouse adverted to Dr Cheung’s report, in which he described the history given to him by the appellant after he and Madam Zhang had gone to bed on the night of 23 July 2013, for which he had drunk eight to nine taels of double distilled spirits.[29]  Having said, “…this is a tragic case of a jealous man killing his cohabiting girlfriend whom he suspected to have another boyfriend beside him.  The jealousy had probably existed and built up over a few years, waiting for some   ignition to explode,” Dr Cheung described the appellant’s account of events as being the “ultimate provocation,…igniting the pre-existing bomb”.[30]  However, in face of those submissions, the judge said:[31]

“ These comments and other references in the report relating to what happened on 25 July came from the defendant. I will rely on the summary of facts that had been admitted.”

35.  In their second reports, dated 27 and 29 January 2015, Drs Liu and Tang elicited a similar history from the applicant of the immediate circumstances leading to the killings as described by Dr Cheung.[32]  In their earlier reports, each of them described the applicant as having given an “inconsistent account on the index offence”,[33] although neither stipulated the inconsistencies.

36.  Section 82(1) of the Criminal Procedure Ordinance, Cap. 221, provides that:

“ A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.”

37.  On the plain reading of those words, it matters not whether the conviction was obtained by way of verdict after trial or by way of a plea.[34]  However, as Power VP said in the judgment of this Court in HKSAR v Yip Kai Foon [35]:

“ We accept that the applicant is not debarred from appealing by reason of his plea. If, however, an applicant is to have any chance of success in his appeal, he must, as was done in R v Lee (Bruce) [1984] 1 WLR 578, establish that there is some overriding factor which makes the conviction founded on the unequivocal plea unsafe and unsatisfactory.” [Italics added.]

38.  As the judge noted in his reasons for sentence, no fewer than three pre-trial reviews were held before the applicant was arraigned on the indictment and pleaded guilty to the three counts of murder.  Of the first pre-trial review, held on 27 November 2014, the judge noted that, “there was the indication that he would plead guilty to manslaughter on the grounds of diminished responsibility.” [36]  However, as the judge noted, Dr Liu and Dr Tang were of the opinion that the applicant did not manifest any psychiatric symptoms or suffer from any psychiatric illness and that he was fit to plead.

39.  For his part, Dr Cheung observed that the account elicited from the applicant by various doctors in Hong Kong, that he had been diagnosed with schizophrenia by doctors on the Mainland, was “extremely inconsistent”, so that no definite diagnosis could be made.[37] The fact that, on his account, the applicant had remained “mentally well for years without treatment” was “not very consistent with the diagnosis of schizophrenia.”  As the judge noted, it was Dr Cheung’s opinion “…that the defendant cognitively appreciated the grave consequences of his acts.”  Further, that “…he knew what he was doing and that he knew he was doing was wrong.” [38]  From those findings, he concluded that the applicant was not legally insane.

40.  Having considered the various factual possibilities which would give rise to the defence of diminished responsibility, Dr Cheung said, “…we have no evidence that he had suffered from any abnormality of mind which would qualify for diminished responsibility.” [39]  Also, it was his opinion that the applicant was fit to plead.[40]

41.  Further, Dr Cheung noted that, “…the amount of alcohol he claimed he had taken at the moment of the offences was lower than the habitual amount he drank in China, as the alcoholic drink he took this time was weaker.  In other words he should not be in a heavily intoxicated state then.”  In the result, it was his opinion that his consumption of alcohol, “should not alleviate his criminal responsibility in terms of Diminished Responsibility or Legal Insanity.” [41]

42.  Although the judge did not advert to it in his reasons for sentence, it is apparent from the transcript of that pre-trial review that an indication was given by Mr Whitehouse that consideration was being given as to whether or not the issue of provocation arose in the circumstances in respect of the killing of Madam Zhang only.

43.  At the pre-trial review held on 4 February 2015, the judge was provided with a report of Dr Dong Yuet Sun, Jimmy and updated reports of both Dr Liu and Dr Tang, in which the latter had available to them the report of the former.  The judge noted that Dr Dong’s opinion was that, “…the defendant suffered with epilepsy and that his actions were caused by epileptic automatism over which he would have had no control.”  However, the judge observed that Dr Dong, “…based his diagnosis on what he had been told by the defendant whose account of his past behaviour varied with different psychiatrists.” [42]  In that context, the judge noted that in her second report Dr Liu said that the applicant had admitted that his earlier account that he had seen psychiatrists previously “were untrue”.[43]  Although the judge did not advert to it, Dr Tang said in her second report that the applicant had admitted that he had lied in the earlier history that he had given in 2014 of having consulted a psychiatrist on the Mainland.[44]  However, the judge did note that both of those doctors were of the opinion that the applicant did not suffer from “any formal psychiatric illness.”[45]  Further, that those doctors, “found no evidence suggesting that he was suffering from epilepsy.” [46]

44.  Again, although the judge made no reference to it in his reasons for sentence, it is apparent from the transcript of that pre-trial review that Mr Whitehouse indicated that consideration continued to be given by the defence as to whether or not the issue of provocation arose in the circumstances of the death of Madam Zhang only.  In response to the judge’s enquiry, Mr Whitehouse informed the judge that might arise on the basis that Madam Zhang had attacked the applicant with a hammer, who had responded in circumstances where he had consumed alcohol.  On the other hand, he indicated that the pleas of guilty would be tendered in respect of Counts 2 and 3.

45.  Of the third pre-trial review, held on 11 February 2015, the judge noted that Mr Whitehouse had advised the Court, “that the defendant would plead guilty to all three murder counts.” [47]It is apparent from the transcript of that pre-trial review that, in addition, Mr Whitehouse informed the court that he had confirmation of those instructions in writing.  Further, he asserted that no pressure had been put on the applicant to plead guilty to Count 1.

46.  In the context of the appellant’s grounds of appeal against conviction, we are satisfied that it is abundantly clear from the judge’s reasons for sentence and from the transcripts of the pre-trial reviews that those representing the applicant had given careful consideration to all of the issues now identified by the applicant as being relevant to his defence.  There was no evidence whatsoever of the applicant suffering from schizophrenia.  He admitted that he had lied / been untruthful in asserting that he had been treated for psychiatric illness on the Mainland.  The significance of the applicant’s claim to have been drunk was negated by Dr Cheung’s opinion that it was irrelevant to diminished responsibility or insanity, it being merely a disinhibiting factor.  Dr Dong’s opinion that the applicant suffered from epilepsy and the killings were caused by epileptic automatism was contradicted by the second reports of Dr Liu and Dr Tang who, as the judge noted, “…were able to observe the defendant’s behaviour during the period he was on remand at the Siu Lam Psychiatric Centre.”  The applicant was detained at Siu Lam Psychiatric Centre from 1 August 2013 to 21 July 2014, as well as in January 2015.[48]

47.  As noted earlier, the applicant asserted to the psychiatrists who examined him, that he had been kicked by Madam Zhang, who then hit his head with a hammer.[49]  In mitigation Mr Whitehouse adverted to Dr Cheung’s report, namely that “the ultimate provocation occurred when the couple had quarrelled over a relatively minor matter and she kicked him repeatedly and even picked up a hammer to strike his head.” [50] Mr Whitehouse added “… he did have some minor (injury).” [51]  Understandably, that was met with the rejoinder by the judge that it was merely a laceration and that the doctors were unable to determine when it occurred.  In fact, it was described in the Summary of Facts, in the observations made of the applicant when he was examined in the Eastern Hospital on 26 July 2013, as “…a small subcutaneous scalp lesion, 3 cm long in shape of a line with no width, at right parietal region which did not require treatment.” [52]  Obviously, that finding was inconsistent with the applicant’s assertion that Madam Zhang had hit his head with a hammer.

48.  Finally, at the end of the day it is clear that the applicant’s pleas of guilty to the three counts of murder were fully considered and unequivocal.  Following his arraignment, his earlier equivocation about that part of the Summary of Facts which dealt with the injuries to his children, was met with an adjournment for an opportunity for a consultation with his counsel.  That was followed by the contentious part of the Summary of Facts being re-read in open court and interpreted to the appellant.  At the conclusion of that exercise, he confirmed in terms to the judge that he agreed those facts.

Conclusion

49.  For the reasons set out above, we were satisfied that there are no overriding factors which make the convictions, founded on the unequivocal pleas of guilty, unsafe and unsatisfactory.  There is no merit in the grounds of appeal advanced by the applicant.  Accordingly, we refused the applicant leave to appeal against his convictions.

[1] Form XI.

[2] Form XI; letter dated 9 October 2015, paragraph 2, letter dated 5 April 2016, paragraph 1.

[3] Letter dated 9 October 2015, paragraphs 1 and 4; and letter dated 5 April 2016, paragraph 3.

[4] Ibid.

[5] Ibid.

[6] Letter dated 12 March 2016.

[7] Letter dated 12 March 2016, page 2.

[8] Letter dated 5 April 2016, paragraph 1.

[9] Letter dated 9 October 2015, paragraph 3.

[10] Form XI.

[11] Ibid.

[12] Appeal Bundle; page 44, paragraph 6 and page 47, paragraph 4.

[13] Dr Jimmy YS Dong: report, 19 December 2014 (Appeal Bundle, pages 49-67).

[14] Ibid, page 58.

[15] Appeal Bundle; pages 60-1, paragraphs 21 and 23.

[16] Appeal Bundle; page 63, paragraph 28.

[17] Dr Amy C Y Liu: 1^st report, 5 March 2014 (Appeal Bundle pages 30- 31); 2^nd report 27 January 2015 (Appeal Bundle pages 43-45). 

[18] Dr Dorothy Tang: 1^st report, 5 March 2014 (Appeal Bundle pages 28-29); 2^nd report, 29 January 2015 (Appeal Bundle, pages 46-48).

[19] Dr Cheung Hung-Kin: report, 13 November 2014 (Appeal Bundle; page 40, at paragraph (3)(e)).

[20] Appeal Bundle, page 21 L-R.

[21] Appeal Bundle, page 22 N.

[22] Appeal Bundle, pages 27-9 to 27-17.

[23] Appeal Bundle, page 27-9 O-Q.

[24] Appeal Bundle, pages 27-9 R to 27-10 B.

[25] Appeal Bundle, page 27-10 E-G.

[26] Appeal Bundle, page 27-10 J-L.

[27] Appeal Bundle, pages 27-10 M to 27-11 B.

[28] Appeal Bundle, page 27-11 C-D.

[29] Appeal Bundle, page 36:

[30] Appeal Bundle, pages 38-9.

[31] Appeal Bundle, page 27-10 D-E.

[32] Appeal Bundle: page 45, paragraph 8; page 47, paragraph 5.

[33] Appeal Bundle: page 29, paragraph 5; page 31, paragraph 4.

[34] HKSAR v Shum Chiu [2011] 2 HKLRD 246, at paragraph 28.

[35] HKSAR v Yip Kai Foon [1999] 1 HKLRD 277, at 282.

[36] Appeal Bundle, page 27-9 P.

[37] Appeal Bundle, page 39.

[38] Appeal Bundle, page 39.

[39] Appeal Bundle, page 40.

[40] Appeal Bundle, page 41.

[41] Appeal Bundle, page 40.

[42] Appeal Bundle, page 27-10 J-L.

[43] Appeal Bundle, page 27-10 N-O.

[44] Appeal Bundle, page 47, paragraph 4.

[45] Appeal Bundle, page 27-10 P-Q.

[46] Appeal Bundle, page 27-11 A-B.

[47] Appeal Bundle, page 27-11 C.

[48] Appeal Bundle, page 44 paragraph 5.

[49] Appeal Bundle, page 36 (Dr Cheung); page 45 (Dr Liu); page 47 (Dr Tang).

[50] Appeal Bundle, page 39.

[51] Appeal Bundle, page 27-5.

[52] Appeal Bundle, page 14.