HKSAR v. LI WAI MAN

CACC 249/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 249 OF 2014

(ON APPEAL FROM HCCC NO. 353 OF 2013)

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JUDGMENT
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Hon Lunn VP (giving the Judgment of the Court) :

1.  The applicant seeks leave to appeal against his conviction on 9 July 2014, after trial by Deputy High Court Judge Stuart-Moore and a jury, of the murder of Ms Liu Shuqiong on or about 22 October 2012 in Hong Kong.

The Trial

2.  There was no dispute that Ms Liu’s naked body was found at her premises at Room B, 2/F, 226 Shanghai Street, Yaumatei, Kowloon by the police on 24 October 2012 and that she had died as a result of sustaining six overlapping chop wounds to her neck, which had resulted in the severance not only of her carotid artery but also the spinal cord.

The prosecution case

3.  The prosecution case was that around midnight on 22 October 2012 the applicant had killed the deceased, who was a prostitute, at her residence.  CCTV installed at the building in which Ms  Liu resided depicted the applicant entering the premises with Ms  Liu at 23:49 hours before he re-emerged on the pavement outside the premises alone at 00:02 hours.  On the latter occasion he was wearing a differently coloured shirt from that which he was wearing on the former occasion.  Ms Liu was never seen alive again.

4.  In support of its case, the prosecution relied on circumstantial evidence of the applicant’s connection with Ms  Liu and her premises.  First, it was an admitted fact that the bloodstains found on the handle, shoulder strap, inside the main compartment and on one of the two buckles of a black shoulder bag found and seized by the police on 29 October 2012 in the applicant’s premises[1] all originated from Ms Liu.[2]  Secondly, fibres found on a bed sheet seized by the police from Ms Liu’s premises on the evening of 24 October 2014 matched, in microscopic examination and colour, fibres taken from a pink T-shirt seized from the applicant’s premises.[3]

5.  Next, the prosecution relied on the evidence of Mr Chen, the proprietor of a shop in Sham Shui Po, who testified that around 6 pm on 24 October 2012, the applicant had bought a telephone charger from his shop and attempted but failed to sell a mobile phone, which was an unusual mobile telephone “DOOV” made in the Mainland and of very little value in Hong Kong.[4]  Ms Liu’s husband testified that he had given her such a phone.  He had contacted her on the telephone at 11:13 p.m. on the evening of 22 October 2012 and arranged to meet her in Shanghai Street.  He sent her a text message to that telephone at about 00:15 hours on 23 October 2012, informing her that he had arrived at the rendezvous, but he never received a reply nor, despite calling that telephone number many times, did he make contact with her ever again.  Ms Liu’s telephone was never recovered.

6.  Finally, the prosecution relied on various admissions that the applicant had made in out-of-court statements to the police.  First, having been arrested and cautioned at 5:40 p.m. on 29 October 2012 at the Tsz Wan Shan Community Centre on suspicion of being connected with the killing of Ms Liu, the applicant said:

“ Ah sir, it had nothing to do with me. It was Ah Ying who directed me to teach her a lesson only. ”

7.  Further, the prosecution relied on the fact that the applicant had signed a written entry in Detective Sergeant Ng’s notebook, made at 6:05 p.m. at the applicant’s home in Tsz Man Estate, describing the circumstances of the arrest and cautioning of the applicant and that oral response[5].

8.  Then, the prosecution relied on answers that the applicant had given in response to questions asked of him by police officers in the course of a video recorded interview conducted from 8:51 to 9:26 p.m. on 29 October 2012, in which he gave a more detailed explanation of the requests made of him by the person he described as Ah Ying.  She was a prostitute from Sichuan that he had known since 2002.  He paid for sexual services he received from her on 15 October 2012, after which she asked him to teach another prostitute a lesson.  She said that he was to hit her heavily, no matter how he hit her.  She had promised him $10,000 as a reward for doing so and paid him $5,000.  Shortly after 11:00 p.m. on 22 October 2012 he met Ms  Lui at the junction of Nanking and Shanghai streets and, pretending to be a customer reached an agreement for her services as a prostitute.  They went upstairs to her premises where he set about beating the back of her head with his fists.  She squatted down.  The attack lasted less than a minute, after which he left the premises and went down to the street.

9.  Finally, the prosecution relied on some of the answers given by the applicant in a record of interview conducted of him under caution by police officers at the custodial ward of Queen Elizabeth Hospital between 1:42 and 3:20 p.m. on 31 October 2012.  The applicant identified Ms Liu, whom he called ‘Ah Yung’ and himself in still frames taken from the CCTV camera.

10.  The overall effect of the account given by the applicant to the police was that whilst he admitted that he had met her in the late evening of 22 October 2012 and administered a beating to her he had not used any weapon and she was alive when he left the company.  The prosecution did not accept that the applicant’s account was the whole truth.  It was true that he had been alone with Ms Liu in the late evening of 22 October 2012.  However, he had not merely beaten her with his fists, he had killed her with a heavy sharp instrument.

The defence case

Voir dire

11.  Mr Whitehouse, counsel for the applicant at trial and before this Court, challenged the admissibility of the various alleged statements made by the applicant to the police.  The judge conducted a voir dire and received evidence over a period of three hearing days.

The prosecution case

12.  First, the prosecution called six police officers, who gave evidence of their respective dealings with the applicant in the overall time period from his detention at the Community Centre on the late afternoon of 29 October 2012 up to the time at which he was charged with the murder of Ms Liu, at the Custodial Ward of the Queen Elizabeth Hospital on the afternoon of 31 October 2012.  It was the effect of their evidence that at about 5:45 p.m. Detective Sergeant Ng, in the company of Detective Senior Inspector Wan and other police officers, approached the applicant as he was seated at a table in the Community Centre and identified himself as a police officer, enquiring if he was Li Wai Man.  In response, the applicant rose to his feet and made to run off.  The Sergeant and two police constables overpowered him and forced the applicant to the ground where he was pinned face down.  There, he continued to struggle, until the officers were successful in handcuffing his wrists together behind his back.  The applicant was taken to a nearby room where he was told that he was under arrest on suspicion of being involved in the killing of a female, whose body had been found by the police inside premises at 226, Shanghai Street on 24 October 2012.  The words of caution having been administered to the applicant he replied “Ah Sir, it’s nothing to do with me.  It is Ah Ying who directed me to teach her a lesson only” .

13.  Detective Sergeant Ng said that he had made a written record of the circumstances of the applicant’s arrest and cautioning, together with his reply, in his police notebook whilst together with the applicant in his domestic premises, to which he had been taken from the Community Centre.  At his request, the applicant had signed that entry.

14.  Sergeant Ng and Detective Senior Inspector Wan testified that they had conducted a video recorded interview of the applicant at West Regional Headquarters between 8:51 and 9:26 p.m. on 29 October 2012.  Between 1:42 and 3:20 p.m. on 31 October 2012 they conducted a record of interview of the applicant at the Custodial Ward of Queen Elizabeth Hospital.

15.  All the police officers denied having assaulted the applicant, or having been present whilst others assaulted him, or having threatened or offered inducements, or having been present whilst others did so.

The defence case

16.  For his part, the applicant testified and adduced into evidence medical examination forms and reports of examinations of the applicant conducted of him during the time that he was a patient at Queen Elizabeth Hospital beginning on 30 October 2012.

17.  The applicant denied that he had tried to escape when confronted by the police officers at the Community Centre.  Rather, two or three men had rushed towards him and pinned him to the ground face down.  He confirmed that he was Li Wai Man.  He was not told that he was under arrest.  Someone stamped on his back and kicked his thighs.  He did not say “Ah Sir, it has nothing to do with me it was Ah Ying who directed me to teach her a lesson only”.  He did not know a prostitute of that name.  He was taken to an adjoining room where, after he was pinned to the ground, somebody kicked him and stamped on his back.  At some stage his wrists were handcuffed behind his back.

18.  The applicant testified that, having been taken from the Community Centre downstairs to the police van, he was assaulted again.  He was kicked and punched.  The latter blows landed on his chest and his head.  Then, he was taken to his own domestic premises.  Having been taken into those premises, he was made to sit on a stool while a search ensued.  Detective Sergeant Chan Bun enjoined him to be honest, failing which he said, “I will entertain you!”  Thereafter, three or four police officers, including Detective Sergeant Chan Bun, assaulted him striking his head and both sides of his ribs.  He fell to the ground and was kicked.  He was still handcuffed with his arms behind his back.  Two police officers lifted him up after which Detective Sergeant Chan Bun punched him with gloved hands whilst two other officers joined in the assault.  He was struck blows to his head and his ribs and retreated into a wall, where he fell down.  There, he was punched and kicked and became “a bit unconscious”.  He heard a buzzing sound in his head after his head had been kicked.  There were bruises on his hands and arms.  He had a nosebleed, with the blood reaching his lip.[6]

19.  As instructed by one of the police officers, he washed the blood from his face in the toilet.  However, that failed to staunch the flow of blood which was still “seeping out”.  On his return he sat on the edge of the bed and smoked a cigarette provided by Detective Sergeant Chan Bun, who offered to help him formulate the account he was to give.  Then, on the instructions of a female police officer, he stood up to permit her to search the drawers of his bed.  After she had finished that search she told another police officer “Still cannot be found” and slapped the applicant’s face, drawing blood and causing his lips to become numb and swell.  Having gone to the kitchen on instructions of one of the police officers, he signed the post-record notebook entry in Detective Sergeant Ng’s notebook, having been told to do so by Chan Bun and under the direction of the Sergeant.  He did not read the contents and was not willing to append his signature.

20.  The applicant testified that during the journey in which he was taken by police officers in a police van, first to Wong Tai Sin Police Station and then to Kowloon Headquarters, he was coached by Detective Sergeant Chan Bun to give an account of the killing of Ms Liu.  In a room at Kowloon Headquarters, which had video recording equipment which failed to work, he was kneed in the testicles, punched in the head and threatened with further violence by Senior Inspector Wan Kin Wai if he failed to recite the version he had been coached to learn.  In the subsequent video recorded interview conducted in another room he gave that account.  He explained that when he was seen in the video coughing and holding his chest that was as a result of the earlier beating.  Similarly, he held his hand to his ear because he was still troubled by buzzing that had been caused by blows to the head.  Also, he touched his injured lip.

21.  Having asked a police officer on duty in the cells of Kowloon City Police Station for medication, the applicant was taken to the Accident & Emergency Department of Queen Elizabeth Hospital in the early hours of the morning of 30 October 2012.  There, he complained that he had sustained the injuries to his person in assaults administered to him by police officers.  He was examined by the doctors and then detained in hospital.  Also, on the same day he lodged a complaint with CAPO and photographs were taken of him.

22.  The applicant testified that whilst he was detained in the Custodial Ward of Queen Elizabeth Hospital he was visited by Detective Sergeant Ng and Senior Inspector Wan.  Detective Sergeant Ng compiled what purported to be a record of interview in which he had supplied answers to various questions.  However, he did not give those answers.  Although he signed the written record and wrote out a declaration, he did not do so willingly.

23.  The medical reports noted that the applicant had complained of having been assaulted by police officers on 29 October 2012.  The applicant was first examined at 05:17 hours 30 October 2012.  Various fresh injuries were observed: 8 cm of redness, bruising and tenderness on the abdomen wall; 4 cm of redness with tenderness on the upper back (between scapula); a 0.5 cm abrasion on the lower lip; 3 cm of redness with tenderness, bilateral wrist.  A complaint of tenderness only was elicited from the applicant in respect of the bilateral lower chest wall and the left thigh.  No sign of a fracture was observed in X-rays of the chest.[7]

24.  Dr Anson Fung noted that the applicant had been admitted as a patient to Queen Elizabeth Hospital on 30 October and discharged on 2 November 2012.  He noted of the examination of the applicant:[8]

“ Physical examination and blood tests were unremarkable. X-ray of his ribs did not show any fracture. Ultrasonogram of his abdomen did not reveal any intra-abdominal injury”.

25.  Dr Yu Ho Ming, a medical officer at Lai Chi Kok Reception Centre, said that the applicant had been admitted to the Centre hospital for observation on 2 November and discharged on 5 November 2012.  He noted:[9]

“ Physical examination of cardiovascular and respiratory system was unremarkable. During the examination, three bruise marks were noticed over his abdominal area, 17 cm x 17 cm greenish bruise over epigastrium, one of 3 cm x 5 cm greenish bruise over right flank and 15 cm x 5 cm greenish bruise over left flank.”

26.  Also, the defence adduced into evidence the record of a complaint made by the applicant at 17:07 hours on 30 October 2012 to the Complaints Against Police Office (“CAPO”), in which he complained of having been assaulted by police officers at the Community Centre, in a police vehicle, at his home and at West Kowloon Police Headquarters.[10]  The Sergeant compiling the report described five sites of injuries to the applicant: a red mark 2 x 2 cm on the left side of the face; a red mark 16 x 16 cm on the chest; a red mark 5 x 5 cm (each) on both arms near the wrist, swelling 5 x 5 cm on the left thigh and scabbing 2 cm on the lower lip.  In addition, photographs taken by police officers of CAPO of the applicant on 30 October 2012 were put into evidence.[11]  Also, adduced into evidence was the transcript of complaints, namely of threats, inducements and a series of assaults by the police at and after his detention, made on behalf of the applicant on 1 November 2012 to Mr Peter Law, the Principal Magistrate at Kowloon City Magistracy.[12]  Finally, it was an admitted fact that blood had been found on the floor of the living room of the defendant’s domestic premises and on the jeans that he had been wearing at the time of his arrest, which blood originated from the applicant.

The Ruling

27.  Having been addressed by Mr Whitehouse on behalf of the applicant at the conclusion of the evidence received in the voir dire, the judge ruled on the admissibility of the applicant's out-of-court statements:[13]

“ I will give my ruling now on the question of the admissibility of the various statements alleged to have been made by the defendant to the police following his arrest by police. The speech given by Mr Whitehouse began with words to the effect that I may well not have been impressed by the defendant’s account and that I might think he was exaggerating and, in places, lying.

Now, I have had the whole of today to observe him in evidence and part of yesterday as well. All I propose to say is that this voir dire is entirely centred upon factual matters relating to numerous allegations of disgraceful conduct on the part of the police. A number of police officers were called by the prosecution who denied that sort of conduct.

For the defence, the defendant was called. There are some Admitted Facts and there are also some medical reports which I find highly significant in the context of the allegations made by the defendant.

These matters are not determined by the number of witnesses called on each side, but rather, on the credibility of those who are called.  I need say no more and should say no more at this stage than to rule that I find that the alleged admissions contained in the evidence given by the officers, both as to the first answer allegedly made recorded in an officer’s notebook, the video recorded interview at the police station and the written interview in the custodial ward of Queen Elizabeth Hospital were, all of them, voluntary, and therefore I admit them in evidence.  The jury will hear them.”

The trial before the jury

28.  Following the judge’s ruling that the out-of-court statements of the applicant of the police were admissible in evidence the prosecution adduced that evidence before the jury.  Issue was taken with the prosecution witnesses in respect of their alleged misconduct in dealing with the applicant following his detention.

29.  The applicant availed himself of his right to give evidence before the jury.  He denied having been arrested or cautioned by the Sergeant in the Community Centre, in particular he denied having made the alleged oral admission to the police officers.  He had been assaulted on multiple occasions by many police officers.  Also, he had been threatened and offered inducements.  He had been coached in respect of what he was to stay in the video record of interview.  It was in those circumstances, not willingly, that he had participated in that interview.  He had not given the purported answers in the record of interview allegedly conducted of him in the Custodial Ward of Queen Elizabeth Hospital.  He had signed that record and the earlier post record entry in Sergeant Ng’s notebook, but had not done so willingly.  He had been forced to do so.

30.  The applicant testified that he had met the deceased for the first time at around 11 pm on 15 October 2012 when she was soliciting customers for sex at Shanghai Street.  He had sex with her at her premises for the payment of $150.  Then, they met for the second time at Shanghai Street just before midnight on 22 October 2012. He was making his way to work in Mongkok, where he worked as a cleaner in a restaurant. She told him that she could find another girl for him to have sex with him in her premises.  As a result, he went up to Ms Liu’s premises and waited for the other girl to arrive, but she did not do so.  After he had urinated in the toilet, the deceased had used a showerhead to clean the toilet and in doing so had sprayed water on his shirt.  Since he had a spare shirt in his bag, which he had placed in the bag to take to work, he changed his shirt.  Eventually, he decided to leave.  When he did so, she was perfectly well and fully dressed.

31.  The applicant suggested that the pink fibres found on the bedsheet on the bed in Ms Lui’s premises, which matched microscopically and in colour the fibres taken from his pink T-shirt seized by the police from his premises, may have been left on the bedsheet when he had sex with her in her premises on 15 April 2012.  Similarly, he suggested that the blood found both on and inside his shoulder bag, may have got there when he found blood on his fingers from the condom that he used when they had sex on that earlier occasion.

32.  The applicant denied that he had given Mr Chen a mobile telephone made on the Mainland, which he attempted to sell.  In his testimony to that effect, Mr Chen was mistaken.  Rather, he had asked him to change the password in his Korean made mobile telephone.

33.  The defence called Dr Choi and Dr Anson Fung, two doctors from Queen Elizabeth Hospital, who testified about the examination of the applicant on 30 October 2012, his admission as a patient and his discharge on 2 November 2012.  Also, a medical report of Dr Yu Hon Ming, a doctor at Lai Chi Kok Reception Centre who had examined the applicant on 2 November 2012, admitted him as a patient and discharged him on 5 November 2012 was adduced into evidence.

Grounds of appeal against conviction

34.  The single ground of appeal against conviction advanced by Mr Whitehouse was that the judge had erred in ruling admissible in evidence the out-of-court statements made by the applicant to police officers.  In consequence, the applicant’s conviction was unsafe and unsatisfactory.  He submitted that the prosecution had failed to prove that the statements were made voluntarily.  Rather, the evidence adduced in the voir dire showed that the applicant had been subjected to assault and ill-treatment at the hands of the police.

35.  Mr Whitehouse submitted that the undisputed evidence from the doctors who had provided medical reports of the results of their respective examination of the applicant in the period 30 October to 2 November 2012 supported the applicant’s testimony of being assaulted by various police officers, as did the photographs of his injuries taken by a police officer assigned to CAPO.  Further, the applicant’s complaints of ill-treatment by the police to both CAPO and to the magistrate were consistent with his testimony.  In addition, he submitted that the finding of blood on the floor of the living room of the applicant’s domestic premises originating from the applicant was consistent with his evidence that the assault on him by police officers in those premises had caused him to bleed, so much so that he had been directed by a police officer to wash his face.  The finding of the blood was undisputed evidence.

36.  Although Mr Whitehouse acknowledged that the judge had given a brief ruling in determining the out-of-court statements of the applicant to be admissible, and that normally no more was required, he contended that in the circumstances of this case more was required.  Given the undisputed evidence of the fresh injuries to the applicant observed by doctors at the Custodial Ward of Queen Elizabeth Hospital on 30 October 2012 and of greenish bruising observed in three places on the applicant’s body on his admission to Lai Chi Kok Reception Centre on 2 November 2012, in the context of the applicant’s complaints to CAPO and to the magistrate, and the admitted finding of the applicant’s blood on the floor of his premises the judge erred in failing to analyse and give reasons for rejecting that evidence which supported the applicant’s case.

The Law

37.  It is trite law that the judge must be satisfied that the prosecution has proved beyond reasonable doubt that the out-of-court statements made by a defendant were made voluntarily before the statements may be ruled admissible in the trial.

38.  In his judgment in the