HKSAR v. TING KAI TAI

CACC 251/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 251 OF 2009

(ON APPEAL FROM HCCC NO. 252 OF 2008)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.  On 27 July 2009, the applicant was convicted after trial before Wright J and a jury of one count of murder. He had pleaded guilty before the commencement of that trial to preventing the lawful burial of a body. He was sentenced to life imprisonment for murder and four years’ imprisonment for the burial offence, respectively, the terms ordered to run concurrently.

2.  By notice of appeal dated 29 July 2009, he sought leave to appeal the conviction for murder on the ground that the prosecution had had no evidence to prove that he had killed someone.

3.  He was subsequently granted legal aid but by letter dated 2 February 2010 his solicitors wrote to inform the court that counsel would appear at the hearing but that no grounds would be advanced by counsel.  The hearing of the application for leave was scheduled for 29 July 2010 but by notice dated 26 July 2010 the applicant abandoned his application for leave and the application therefore stood dismissed as a matter of law.

4.  However by an affirmation dated 19 October 2011, the applicant seeks to revive the application for leave.  In order to confer upon this Court jurisdiction to hear the application for leave, it falls for the applicant to persuade the Court that his abandonment should be treated as a nullity.  

5.  In that affirmation he provides as the reason for his abandonment the suggested fact that he worried that his appeal would be affected by public opinion if it were heard too early and that he therefore decided “to cancel the appeal temporarily”.  “However”, he said, “now I think that it has been a while since the incident took place, I hence decide to make a fresh application for leave to appeal.”  Before us today, the reason he has given for the abandonment is that he thought then that he had no grounds upon which to base the appeal.  He was influenced as well by the fact that those representing him advised him that there were no grounds. He accordingly thought that coming to court was a waste of his time.  It seems clear enough from these reasons that none establishes that his mind did not go with his deed of abandonment.  Later however he tells us he found evidence to undermine the safety of his conviction. 

6.  The circumstances of the killing in question were gruesome: the victim was a 16-year-old girl whom he had arranged to meet in his flat for the purpose of sexual activity and, according to an admission he made to the police thereafter, he strangled her to death and then dismembered her body.  At his trial, he advanced the defence of drug-induced automatism.

7.  The grounds which he wishes now to advance, were this appeal reopened, are that he had said in an interview with the police that he had been a drug user for around 10 years whereas he now seeks to provide evidence of a drug test in 2003 which showed him at the time of that test to be free from drugs; meaning, according to him, that his recollection of 10 years of drug consumption was wrong and proved to be an exaggeration.  The relevance of this, according to him, is that the quantity of drugs he consumed on the day of the killing was likely to have had a greater impact upon his self-control if he had by then only been on drugs for three years rather than for 10.

8.  The burden is upon the applicant to show that when he abandoned his appeal, his mind did not go with his deed, in the sense that he was not aware of the nature and effect of the act of abandonment.  This he has not shown and, accordingly, his application to treat the abandonment as a nullity is dismissed.

9.  The question of the merits of his proposed application were he permitted to re-open the matter are in the event academic but, purely for the information of the applicant, we would say that in any event his ground of appeal does not appear to us to carry merit in terms of the safety of his conviction.  It is clear that the basis for his assertion of drug-induced automatism was at trial materially undermined by his ability to recall in a conversation shortly thereafter with a friend what it is he had done and, further, by his failure in a number of police interviews to give a story about his drug consumption immediately prior to the killing which accorded with the story he proffered at trial.