HKSAR v. WONG OI YEE

CACC 233/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 233 OF 1999

(ON APPEAL FROM DCCC 1235 OF 1998)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. On 11th March 1999, the Applicant Wong Oi-yee pleaded guilty in the District Court to two charges of doing an act tending and intended to pervert the course of justice (1st and 5th charges) and 2 charges of Theft (3rd and 4th charges). The allegation in the 1st charge was that she destroyed the bloodstained clothes of a murder suspect, Yeung Kin-sun and the identity card of Wong Kwai-ping ("the deceased") in a homicide case. The allegation in the 5th charge was that she counselled or assisted Yeung Kin-sun, the murder suspect to escape from apprehension by the police. The 3rd and 4th charges of theft alleged that the Applicant stole money from the bank account of the deceased by withdrawing money from her account using her ATM cards.

2. The Applicant was sentenced by H.H. Judge Fung to a total of 13 months imprisonment. She now seeks leave to appeal against conviction out of time.

3. In general, if a defendant has unequivocally pleaded guilty to the charge, without being misled and the facts he admits support the charge and he is convicted on the basis of his own plea, he will not normally be allowed to withdraw his plea.

4. The Applicant does not dispute that she was legally represented when she was before the Judge and she entered her plea of guilty to the four charges unequivocally. She also admitted the summary of facts and the contents of the video recording of her interview by the police in the investigation of the homicide case.

5. According to the summary of facts, on 18th July 1997, a woman Wong Kwai-ping was found stabbed to death at her home. Police made extensive investigation into her background and suspected that one of her boy friends, Yeung Kin-sun, who had been living with her could be the killer. Police then traced his whereabouts and found that he had left for Macau again on 17th July 1997 and returned to Hong Kong the following day. But he left for Macau later the same day and was not seen thereafter. The police also found the H.K. Bank Super Ease Card and the H.K. Bank Asset Vantage Card together with some properties of the deceased were stolen and these cards had been used to withdraw money from the account of the deceased in the H.K. Bank.

6. As a result, the Applicant together with the defendants jointly charged with her were interviewed by the police. The interview was video recorded. At the interview, the Applicant admitted to the police she helped to dispose of the bloodstained clothes of Yeung Kin-sun and the identity card of the deceased after Yeung Kin-sun admitted to her that he killed the deceased. She was given the bank cards by Yeung Kin-sun and she used them to withdraw money on two separate occasions and she also assisted Yeung Kin-sun to leave from Hong Kong to Macau.

7. The Applicant has put in a number of grounds of appeal. Essentially she makes two points:

1. She was misled into pleading guilty to the charges because her then legal representative told her that if she pleaded guilty, the sentence would at most be a suspended sentence. She was also told that in any case, she would have no defence when the video evidence was produced by the prosecution.

2. The video recording which was the only evidence against her did not support her convictions. In this regard, she refers to various parts of the transcript for the video recording, contending that what admissions she made in the interview did not clearly indicate she had disposed of the bloodstained clothes of a murder suspect and the identity card of the deceased since there was no evidence that Yeung Kin-sun had committed the killing and that the deceased was Wong Kwai-ping or Amy. She says in any case, the summary of facts was not supported by evidence.

8. We have gone through the transcript of the video recording of the interview carefully. We note that at the commencement of the interview, the interviewing officer, after recording orally that the Applicant agreed to be interviewed and describing the set up of the interview room said this:

"Well, WONG Oi-yee, now I have reason/s to believe that you are connected with a 'Murder case'. The case took place between 3 a.m. and 5 a.m. on 17th July, 1997, inside a suite of Flat A1, 8th floor, No. 30 Jordan Road, Yaumati whereat Chinese female Wong Kwai-ping, age 29, was stabbed causing death. We also have reason/s to believe that the deceased lost a portable phone, a Superease card of the Hong Kong Bank, 'an Assetvantage' card of the Hong Kong Bank, 10 cheques of Assetvantage account of the Hong Kong Bank, a telephone note-book, an 'inserting' card of portable phone and the deceased Wong Kwai-ping's identity card. Well, I now remind you, Wong Oi-yee, that you are still caution. ..."

9. It may be seen from this preamble that right from the beginning of the interview, the Applicant was fully aware that the deceased concerned in the case of homicide under investigation by the police was one Wong Oi-ping and this was a murder investigation.

10. At 16B - 18B of the transcript, the Applicant admitted Yeung Kin-sun was her boy friend and on 17th July 1999, when she returned home at 4:00 p.m. she saw him there. He told her that he had killed "Amy", stabbing her several times. Yeung Kin-sun then gave her clothes and an identity card to throw away.

11. At 140B of the transcript, the Applicant said that she knew the clothes belonged to Yeung Kin-sun.

12. At 146B, the Applicant admitted that the clothes were thrown away because they were bloodstained and Yeung Kin-sun gave her the two bank cards of the deceased.

13. At 172B, she admitted she made withdrawals using these cards twice.

14. From 300B onwards, she said she saw Yeung Kin-sun again the next day and on that occasion she together with other persons discussed the murder case of Yeung Kin-sun and they advised him to run away and Yeung Kin-sun chose to go to Macau.

15. At 147B onwards, she was asked if she had ever seen the deceased Wong Kwai-ping, alias Amy. She said "no" but later she said that Yeung Kin-sun told her he met the deceased when gambling in Macau and he killed her for money.

16. It may be seen from these parts of her interview, the Applicant was fully aware that the reference to "the deceased" and to "Amy" during the interview was reference to Wong Kwai-ping, the woman who was killed and Yeung Kin-sun was wanted by the police in connection with her murder and not any other person. She well knew the bloodstained clothes were those of Yeung Kin-sun and the identity card was that of Wong Kwai-ping's and she destroyed both which were evidence in the homicide case. She also counselled and assisted Yeung Kin-sun to escape to Macau and she stole the right of the deceased to the money in the bank by withdrawing from her account using her bankcards. The summary of fact was therefore supported by the admissions made by her in the video interview and there was no evidence that her legal representative had in any way misled her.

17. For all these reasons, the application for leave to appeal out of time has no merit and the application must be dismissed.

18. Before leaving this matter, we note from the transcript of the proceedings on the day of the plea, that it was not recorded that the Applicant herself had indicated to the court that she admitted the facts as stated in the summary of facts. We appreciate that she was then represented by counsel, but it does not appear that counsel had indicated to the court that the Applicant had so-admitted, albeit there were some discussions between the Judge, counsel for the prosecution and counsel for the Applicant as to the adequacy of the summary of facts to found the convictions. While we are satisfied that the Applicant fully understood those facts supporting the charges and had admitted those facts before the Judge entered the convictions against her, we nevertheless think that even if a defendant is legally represented on a plea of guilty, a direct admission from the defendant himself of the facts supporting the charge to which she has pleaded should be recorded. This would then put it beyond doubt that the admitted facts support the plea.