HKSAR v. YOUNG KWOK CHEUNG

CACC 573/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 573 OF 2001

(ON APPEAL FROM HCCC 252 OF 2000)

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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):

Introduction

1. On 6 December 2001, the Applicant, aged 38, was convicted of murder after a trial in the Court of First Instance before Jackson J and a jury.

2. The single count on the indictment alleged that on 31 August 1989 the Applicant, together with Mui Yiu-keung (Mui) and two others, murdered Lui Yuk-choi (the deceased).

3. The Applicant now seeks leave to appeal against conviction.

4. The reason why there was a comparatively lengthy time between the commission of the offence and the Applicant's trial was that shortly after the deceased had been killed, the Applicant fled to Macau and then elsewhere before eventually reaching the Mainland. In due course, the authorities there assisted in returning the Applicant to Hong Kong.

Prosecution's case

5. The case presented by the prosecution was largely drawn from the admissions which the Applicant made to the police in Hong Kong. These revealed that Mui, who was a friend of the Applicant, approached the Applicant in order to request his assistance in beating up the deceased. The reason he was given was that the deceased had framed Mui in respect of a criminal offence.

6. The Applicant duly agreed to assist. On 30 August 1989, he met Mui during the evening at a bar in Tsimshatsui. At that time, the deceased was with Mui. When the three of them left the bar together, they went to a car where there were two other men waiting. All five men then got into the car. Mui and the Applicant sat on the back seat with the deceased in the middle. The other two sat in the front.

7. The car was driven to Lung Ha Wan beach in Sai Kung. Mui and the deceased got out of the car first. They went down to the beach where, shortly afterwards, they started fighting. The others then assisted Mui by restraining the deceased. The incident developed into a demand by Mui for money from the deceased, and various threats were made to reinforce this.

8. A spade and some nylon string and adhesive tape were taken from the boot of the car. The deceased was tied up and then hit with the spade by the group of men who were attacking him. They took turns to strike him. The Applicant admitted that he had hit the deceased with the spade. Eventually, as the Applicant expressed it in one of his statements, the deceased was "beaten to death by mistake". Still tied up and with adhesive tape wrapped around the face and head, the deceased's body was then buried under some sand. However, the body was left partially exposed.

9. The Applicant left the scene with the other men and, the next day, he learnt from a broadcast that the deceased's body had been discovered. It was then that he decided to leave Hong Kong.

10. A forensic pathologist gave evidence at the trial. He expressed the opinion that asphyxia due to suffocation had been one cause of death. He also referred to the very serious injuries which had been inflicted on the deceased's head which included fractures of the skull and damage to the brain. These injuries were consistent with a spade being used to hit the deceased and they were a second, contributory, cause of death.

11. The police officers who first saw the Applicant at the checkpoint where the Applicant was handed over said that when he was first informed of the reason for his arrest, he replied: "Ah sir, we did not kill him intentionally that night, it was because he screamed, that was why we killed him." A post-recorded statement was made of this, whereupon the Applicant wrote "agreed" and signed the record.

12. Following this, the Applicant made a number of statements describing the events along the lines we have already summarized.

13. One of the main issues at the trial related to whether his oral statement and the answers which he gave in two of his later video-recorded interviews had been given freely and voluntarily, without inducements from the police. After a voire dire, the judge ruled that the statements were admissible.

Defence case

14. The Applicant gave evidence that at no time had he contemplated any serious injury would be occasioned to the victim. He also attempted to minimize the role that he had played in the attack by comparison to his earlier admissions to the police. He maintained that his answers given in his interviews were unreliable.

The trial

15. In a summing up which was both balanced and fair, the judge emphasized that the jury had to be satisfied about the truth of the Applicant's confessions in his interviews before they could convict the Applicant of murder. The summing up contained no misdirections in law.

16. By their verdict, it is plain that the jury accepted the Applicant's confessions to the police and rejected his defence that no serious injury had been contemplated by him.

The application

17. Although the Applicant has been given legal aid for these proceedings, counsel who represents him has not been able to advance any arguable ground of appeal. Turning, therefore, to the Applicant's homemade grounds of appeal, a number of these related to the admissions he had allegedly made to the police, and to the fairness of the proceedings at his trial which included a complaint about counsel who had represented him in the court below.

18. So far as his admissions to the police are concerned, the Applicant pointed to some minor alleged inaccuracies in the English translation of the video-recorded interviews. As to this, we have been informed, as the result of a very useful written submission from the Respondent, that all of the jurors were Chinese. It is most unlikely, therefore, even if such inaccuracies existed, that any prejudice could have been caused to the Applicant.

19. The Applicant went on to complain that the last of his video-recorded statements, which he had made in an attempt to clarify matters which he had stated earlier, had not been produced in evidence at all. We have to say that this is hardly surprising having regard to the fact that the Applicant had, when he gave evidence, disputed much of what he had allegedly admitted to police in his interviews about the crucial aspects of the attack. It would have made little sense in such circumstances for him to have attempted to clarify the contents of his admissions in the light of the way his defence was being presented. Similarly, his complaint that one of the police officers was not called as a witness for the defence is without substance.

20. So far as the general conduct of the trial is concerned, the Applicant contended that there was other evidence which could have been adduced by the prosecution which, by its non-production, may have prejudiced him. Counsel who represented the Applicant at his trial has, of course, been invited to comment upon this complaint. Clearly, he was unaware of any further evidence which could have benefited the Applicant and there is nothing to suggest that the fairness of the trial was undermined by the absence of material before the jury.

21. A rather more understandable complaint which the Applicant made was that he has been more severely punished than anyone else involved in the offence. So far as this is concerned, after the Applicant left the jurisdiction, the other two men who were involved with him, apart from Mui, were apprehended and stood their trial. One of them was acquitted when the trial judge in that case ruled that his statement, which provided the only evidence against him, was inadmissible. The second man was acquitted of murder but found guilty of manslaughter. He received a sentence of eight years' imprisonment. Mui is still at large.

22. The Applicant may regard himself as being unlucky, in the sense we have just outlined, not to have been convicted of manslaughter. However, no unfairness has been disclosed in his trial and there is no inconsistency in verdict as this Applicant was tried on evidence, relevant to his case alone, which was derived from his admissions to the police. There was ample evidence to show that at the time he joined in this attack he intended, at the very least, really serious bodily injury to be caused to the deceased.

23. Next, the Applicant contended that two of the jurors were, as he put it, "lost in daydreams and dozed off". However, no such complaint was ever made during the proceedings at trial. His trial counsel has indicated that he had the impression the jurors paid close and careful attention throughout the trial.

24. The Applicant's direct complaint against his trial counsel was that counsel had not tried his best to defend him. In support of this, the Applicant contended that the cross-examination of prosecution witnesses had been "perfunctory". Counsel denied this and stated in a letter to the court that he had used all of the material available to him to the best of his ability. In fact, the defence had even utilised the services of a psychologist to give evidence about the Applicant's mental state at the time when he had made his admissions to the police. This had been to no avail.

25. The Applicant also considered that defence counsel had been too friendly towards prosecuting counsel. Whether or not this impression was gained from the use of the expression "my friend" or "my learned friend", which defence counsel has agreed, in accordance with normal court etiquette, he routinely adopted when he referred to his opponent, is hard to say. In any event, the Applicant would not have been well served by counsel who behaved in a gratuitously hostile way towards the prosecutor.

Conclusion

26. There is nothing of substance in any of the Applicant's grounds and his conviction for murder was neither unsafe nor unsatisfactory.

27. Accordingly, the application is dismissed.