HKSAR v. YUEN WING KONG

CACC 93/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 93 OF 2000

(ON APPEAL FROM HCCC 104 OF 1999)

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. On 29 February 2000, the Applicant, aged 42, was convicted of murder following a trial in the Court of First Instance before Stock J and a jury. The Applicant has sought leave to appeal against conviction on the homemade written ground that the verdict was unfair. He has enlarged upon this in one respect during the course of today's hearing.

2. Mr John McNamara was instructed by the Department of Legal Aid to provide assistance to the court in the possible event that this might be needed.

3. The case presented against the Applicant at trial was largely circumstantial. A child of 5 (the victim) was abducted and murdered on 10 October 1998. The victim had been playing during the afternoon with another child (Chan Fung-yu) of the same age. They had with them a plastic toy sword.

4. The two children were separated because of the approach by a strange man who had offered to give the victim a sword which could speak. After that, no one could find the victim until, many hours later, at about 6.00 p.m., his body was discovered by a cleaner. The body had been placed in a black sack on a staircase landing in a building at 221-223 Castle Peak Road near to the victim's address at 338, Castle Peak Road.

5. The victim was pronounced dead on arrival at hospital. In due course, manual strangulation was established to have been the cause of death.

6. The Applicant lived on the 9th floor of the building in which the victim's body had been found. In the course of the investigation which followed, two days after the killing, the boy's clothing was found outside the Applicant's room. Amongst the items which were later taken from his room, which had to be entered by breaking the padlock on the outside of the door, scientific examination revealed traces of the victim's DNA on a pillow.

7. The Applicant was shortly afterwards traced to a clinic which he was attending. Allegedly, the Applicant immediately confessed his guilt to police. He did so not only by word of mouth but later on, when interviewed on video, he gave graphic details of how he had strangled the child to stop him crying or shouting. He spoke of strangling the child by "squeezing and squeezing and squeezing his Adam's apple" for several minutes. He then described how he had sat on top of the pillow on top of the child. When asked if the child had screamed, he replied "He couldn't make a sound even though he screamed."

8. In a later interview, the Applicant retracted the confession to killing the child. Likewise, in his defence at trial, he made out that he had encountered a man who he called "the four-eyed boy" who had asked him to dispose of the victim's body in return for a large sum of money. The Applicant gave evidence that the victim was already dead when he first touched his body. He said that the detailed story he had given to the police in his first interview was untrue and that he had been coached by the four-eyed boy as to what he should say. This man was the real killer who, according to the Applicant, he had never previously met.

9. The sole issue for the jury was to determine whether it had been proved that the Applicant was the culprit responsible for murdering the victim.

10. Today in court, the Applicant has once again maintained that he is innocent of this crime and he has described one feature of Chan Fung-yu's evidence as having given rise to an ambiguity. The so-called ambiguity relates to the description given by Chan Fung-yu (5 years old) of the upper garment being worn by the man who took the victim away which he said was red and appeared to have a picture of a bear on both sides of it. The same witness also described this man's trousers as having been blue and his hair as having been short.

11. It is perfectly true that Chan Fung-yu was the only witness to describe a picture of bears on the abductor's shirt. There were, however, two other important witnesses who referred to the clothing being worn on 10 October 1998 by the man they had identified as the Applicant. Firstly, there was Mr Kwong who, as the judge reminded the jury, had seen the Applicant much earlier in the day. He described him as wearing a red T-shirt and blue jeans and having a short haircut. Secondly, there was Madam Lau who had seen the Applicant at about 4.30 p.m. as she came out of her flat on the 4th floor of 221-223 Castle Peak Road. He was seen by her to be pulling a bag out of the lift. She described the Applicant as wearing a red top and beige trousers and she added that he had a short haircut.

12. It is apparent that the trial judge reminded the jury in close detail about what had been said, and in particular that the child witness had described the red T-shirt as seeming to have pictures of bears on it. He went on to say:

"So you may think that there is some similarity between the descriptions, save perhaps for the trousers, of all three of these witnesses, both as to the clothing and as to the hair style."

13. It is perfectly true that the descriptions were not exactly the same, and it was a matter, therefore, for the jury to decide whether there was any significant difference in the descriptions provided by the witnesses.

14. The judge had summed up with clear and balanced directions to the jury on the law and the facts. The evidence against the Applicant, when looked at as a whole, was overwhelming.

15. The application relating to conviction is dismissed.

16. The Applicant has also made an application relating to sentence. He has asked the court to provide him with a fixed date for his release.

17. There is, of course, only one sentence for murder which is life imprisonment, and that sentence is mandatory. However, we should say, in the light of the Applicant's previous offences relating to indecent assaults on children and young people, and the horrific nature of the present case, that we consider the Applicant poses a long-term and extreme danger to the public in general and to children in particular.

18. This application is also dismissed.