HKSAR v. Lai Kwok Hung

CACC 249/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 249 OF 2013

(ON APPEAL FROM HCCC 389 OF 2011)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

Introduction

1.The applicant was tried before Tong J (“the judge”) and a jury on an indictment containing a single count of murder, contrary to common law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212.  On 15 July 2013 he was convicted after trial by the unanimous verdict of the jury and was sentenced to life imprisonment in accordance with law.  He now seeks leave to appeal against his conviction and sentence.  He was represented by Mr Haynes in respect of his application for leave to appeal conviction but represented himself on his application for leave to appeal sentence.

2.At the hearing of his applications we refused them and said we would give our reasons for doing so at a later date.  This we now do.

The trial

3.On 28 November 2010 at around 10:40 am, a naked body of a woman was discovered at the hill slope below picnic spot 15 of the Shing Mun Country Park (“the country park”).  The body of the woman found was that of Madam Ma Lai Fan (“the deceased”). 

4.There was no dispute that the deceased had been murdered.  The only dispute was whether the applicant was her killer.  There was no direct evidence implicating the applicant in her murder and the prosecution case consisted entirely of circumstantial evidence from which the jury were invited to draw the inference that it was the applicant who had inflicted the injuries on the deceased which had caused her death. 

5.The prosecution called 11 witnesses and read into the record the statements of two others.  As much of the prosecution case was not in dispute, there was a lengthy set of admitted facts.  

6.At the end of the prosecution case, counsel for the applicant, Mr R Donald, made a submission of no case to answer.  When this was rejected, the applicant gave evidence but called no other witnesses.

The prosecution case

7.The prosecution case consisted of evidence which:

(i) linked the applicant to the crime scene;

(ii) linked the applicant to the country park; and

(iii) linked the applicant to the deceased.  

8.The following evidence linked the applicant to the crime scene:

(a) a top-up receipt issued by a 7-Eleven store and which related to the applicant’s Octopus card was found near the deceased’s body;

(b) a number of items of the deceased’s property were found in the applicant’s possession at the time of his arrest.  These were a purple stone ring, a jade pendant and the deceased’s Octopus card;

(c) a piece of curtain that came from the deceased’s flat and which had her blood on it was found in the applicant’s possession;

(d) a hammer which was capable of causing the injuries from which the deceased died was found in the applicant’s possession;

(e) the circumstances surrounding the murder which the prosecution claimed suggested the murderer and the deceased were well known to each other. These circumstances are the violence of the attack and the location of most of the blows, namely to the head of the deceased, and the covering of the deceased’s private parts which may have been an attempt, after the offence, to preserve her modesty; and

(f) post-offence conduct, which included a statement the applicant made on 30 November 2010 to a woman to whom he gave violin lessons, which could be taken as an indication he had done something he regretted; and the fact that on or before 3 December 2010 somebody burnt joss sticks at the place the deceased was murdered.

9.The evidence which linked the applicant to the country park was mobile phone cell site data records and admitted facts as to his presence there at certain times.

10.The evidence which linked the applicant to the deceased was that they were in a sexual relationship as evidenced by the applicant’s semen which was found in the body of the deceased.  The phone call records also evidenced that the deceased was seeking contact with the applicant far more than he was seeking contact with her.  

11.This evidence is discussed in greater detail below.

12.The deceased was 54 years of age at the date of her death and had been living in a public housing unit for “singles” at Room 2801, Yiu Yam House, On Yam Estate.  The deceased was the mother of a daughter and two sons.

13.When the deceased was found, her body was totally naked with no clothes and shoes on, but she was wearing the following items of jewellery:

(i) around her neck a silver coloured necklace with a red stone pendant;

(ii) on her left wrist a white bracelet, a colourful metal bracelet and three thin bracelets; and

(iii) on her left ear lobe a silver coloured earring.

Her clothes, shoes and anything she had been carrying were never found.

14.The body was partly covered by some leaves and mud, particularly around the deceased’s private parts.  Dr Dao (PW5) was called as an expert in crime scene investigation and he said that the soil that was used to cover the deceased’s private parts appeared to be different in colour from the soil around the immediate vicinity of the body and may have come from an area further down the slope.  The inference from this evidence was that the murderer may have been seeking to preserve the modesty of the deceased and, if so, it could be inferred as an act which only someone who knew the deceased, and perhaps had feelings for her, would bother to do. 

15.Post-mortem examination revealed that the cause of death was due to head injuries caused by blunt force impact of great force.  There were 7 injuries to the deceased’s head and neck and 2 areas of abrasions to her trunk.  There were 6 injuries to her limbs and numerous fractures of her skull and injuries to her brain.  The overall pattern of injuries was consistent with being caused in an assault.  However, it was not possible for the pathologist to say which was the first or fatal blow or whether all the blows were made at about the same time.  There was no sign of defensive injuries and no sign that the body had been dragged along the ground. 

16.The pathologist estimated that the death could have occurred within one day prior to the examination of the body of the deceased at the crime scene which took place at 15:32 hours on 28 November 2010.  This meant that the deceased would have died sometime on the afternoon of 27 November.  The pathologist said that the time of death could have been earlier but the greater the deviation from this 24 hours’ estimate, the less likely the death would have occurred at that earlier time.  However, it could not be determined whether the deceased died immediately and if she did not, for how long she might have lived after the attack.  He said the dying process could take more than one day but it would not be a long process. 

17.Alcohol was found in the deceased’s blood and urine at a level that could have resulted in the deceased experiencing some loss of concentration and exhibiting some slurring of her speech.

18.Four swabs, including outer anal, inner anal, vulval and vaginal swabs were taken from the deceased by the forensic pathologist. Analysis revealed that semen was found on the external anal, internal anal, vulval and vaginal swabs.  Seminal stains of unknown age containing the applicant’s sperm were found on the external anal swab and vulval swab.  No DNA from any other person was found.

19.Near the deceased’s body the police found a top-up receipt dated 3 November 2010 issued by a 7-Eleven store for an Octopus card numbered 40049687, found in the possession of the applicant. It was an admitted fact that the applicant had added value to this Octopus card on 3 November 2010. 

20.On 3 December 2010, police officers patrolling the scene where the deceased’s body had been found on 28 November, found some burnt incense stick ends stuck into the ground.  It was an admitted fact that on the beam of the pavilion at picnic site number 15 a red transparent bag containing a box of matches, a transparent bag containing two candles and a bundle of joss sticks was found.  The incense stick ends were seized and examined but no trace of DNA was found on the holding part of the incense sticks.  It was an admitted fact that the Shing Mun Country Park staff members and members of the deceased’s family all denied placing the incense sticks, joss sticks and matches at the scene.  It was suggested by the prosecution that only someone known to the deceased would burn joss sticks at the location of her murder and this may well have been done by the applicant as an act of remorse and regret, prompted by a stricken conscience.  

21.The movements of the deceased and the applicant during the relevant period could be tracked by the following different sources of evidence:  

(a) it was an admitted fact that the applicant was in Hong Kong from 26 September 2010 until the date of his arrest;

(b) CCTV recordings of the residence of the deceased at On Yam Estate showed that on 26 November 2010, the applicant and the deceased (both in casual wear suitable for a walk or barbecue) had left the deceased’s building at 08:09 hours and 08:19 hours respectively with the applicant returning to his building at 08:28 hours and leaving again at 08:43 hours;

(c) it was an admitted fact and also proven by the mobile phone call cell site records that the applicant was in the country park between at least 16:44 hours to 18:32 hours on 26 November 2010 and may have been there before and after these times;

(d) telephone records showed a call was made from the deceased’s phone to the applicant’s phone at 15:52 hours on 26 November 2010;

(e) Madam Bonnie Lau (PW9) testified that the applicant had been giving swimming lessons to her son since November 2010.  On the evening of 26 November 2010, the applicant did not appear at 18:30 hours to give a pre-arranged lesson.  She said that the applicant had never missed a swimming lesson before.  She telephoned the applicant at 18:59 hours and the applicant told her that he was not available;

(f) according to the record of the deceased’s mobile phone, the last originating call was made to the applicant’s mobile phone at 19:31 hours on 26 November 2010.  The call lasted for only 6 seconds;

(g) Madam Mak Wai Yee (PW8) was a violin student of the applicant and had been having lessons with him for 9 months.  On 27 November 2010 at noon, she received a phone call from the applicant who asked her to call the Blue Sky Workshop where the lesson was to take place at 14:00 hours that day and to apply for leave for him, explaining that he had to go to the Mainland[1]. Madam Mak said that she noticed the applicant was not speaking in his normal tone but in a lower voice and was faltering which the prosecution relied on as a possible indicator that the applicant was under stress;

(h) it was an admitted fact and also proven by mobile phone call cell site records that the applicant was in the country park between 12:00 hours to 15:00 hours on 27 November 2010 and may have been there before and after these times;

(i) from 13:49 hours on 27 November 2010 onwards, all calls to the deceased’s mobile phone were forwarded to the voice mail box;

(j) at 16:16 hours on 27 November 2010 the applicant used the deceased’s Octopus card on the MTR;

(k) at PW8’s next violin lesson on 30 November 2010, the applicant said words to the effect that “when something wrong was done, there was no way back” which the prosecution relied on as indicating that the applicant may have been involved in something he regretted; and

(l) CCTV recordings of the applicant’s residence building, Yam Yue House, at Shek Yam Estate showed that on 5 December 2010, the applicant returned to his building at 10:09 hours and between that time and 10:16 hours he took the lift of that building.  He had a rucksack on his shoulder and was pulling a brown suitcase with his hand.[2]  Later at 10:35 hours, he left the building carrying with him a rucksack, a bag and a violin case.

22.The applicant was arrested on the evening of 5 December 2010.  When cautioned at the time of his arrest, he said he had no grudge against the deceased, so why would he kill her.  The following items were found in the applicant’s possession:

(a) an Octopus card, number 40049687, to which the 7‑Eleven store receipt dated 3 November 2010, which was found at the crime scene, related;

(b) the deceased’s Octopus card, number 2216049[3], which the applicant had used on the MTR at 16:16 hours on 27 November 2010;

(c) in a bag carried by the applicant at the time of his arrest, a small hammer;

(d) a purple stone ring, which the deceased’s daughter identified as a gift that she had given to the deceased; and

(e) a jade pendant, which the deceased’s son identified as having been worn by the deceased for 20-odd years.

23.In respect of the hammer, the pathologist expressed the opinion that it could have caused the oval-shaped head injuries of the deceased.  The shape of the injuries, he said, reflected that the hitting object was of a round shape, and was consistent with the hitting surface of the hammer.  Under cross-examination he maintained his view that the small head of the hammer could have caused the much larger injuries suffered by the deceased and that the surface of the hammer was within the size range which could have caused those injuries. 

24.Two types of DNA were found on the handle of the hammer.  One type belonged to the applicant and the other type could not be determined although the deceased could be excluded.  The biochemist, Dr Wai (PW6), who tested the hammer for DNA, said under cross-examination that whilst it would be rather easy to wash skin cells off an object, it was not the same for bloodstains.  One could not just wipe all the traces away by, say, a tissue paper.  One may have to use detergent in order to wash off any traces of blood.  However, Dr Wai could not tell if something had been cleaned by detergent.

25.Police also conducted a search at the applicant’s residence and recovered the brown suitcase that the applicant carried on 5 December 2010 as captured on CCTV.  Inside this suitcase they found:

(a) an Oriental Daily newspaper dated 4 December 2010, with a report on an inside page about the discovery of the deceased’s body; and

(b) a piece of curtain material which carried no mud or dirt, but did bear two bloodstains of the deceased.

26.Dr Wai also examined the bloodstains on the curtain.  He testified that he could not tell the age of the two bloodstains but he did say that they did not look very old.

27.According to the deceased’s daughter (PW12) and son (PW7), the deceased was a morning walker and enjoyed singing but did not have many friends.  She suffered from nervous tension and was unemployed and on welfare.  The son also testified that black plastic sheets that covered a window in his mother’s flat had not previously been there.

The submission of no case to answer

28.At the close of the prosecution case Mr Donald made a submission of no case to answer. He took the court through each piece of circumstantial evidence and sought to demonstrate how there could be a perfectly innocent explanation in respect of them.

29.In relation to the applicant’s Octopus card top-up receipt that was found near the body of the deceased, he submitted that the deceased and the applicant were close friends and had been lovers and it was not disputed that they had gone to the country park together on 26 November.  The receipt may have been in the possession of the deceased simply as a consequence of their close friendship.  Or, if they were together in the country park, it could have simply fallen out of the applicant’s pocket.  Likewise his possession of the deceased’s Octopus card may simply have been due to their friendship as it is not unnatural for one friend to lend or give to another friend her Octopus card.

30.In respect of the telephone cell site records Mr Donald argued that those records only proved that both the deceased and the applicant were in the country park but not that they were there together.

31.As to the ring and the jade pendant which belonged to the deceased, Mr Donald submitted that given the friendship that existed between the applicant and the deceased, these items could easily have come into his possession innocently, and given his nature as a hoarder he then kept them.

32.The comment to the violin student, PW8, Madam Mak, he dismissed as an ex tempore comment of no probative value.

33.The presence of the applicant’s semen in and on the body of the deceased was neither here nor there as they were lovers.

34.The applicant’s hammer could not be linked to the crime and the presence of some other person’s DNA on it showed that it had not been cleaned.

35.The curtain that had the deceased’s blood on it could not be linked to the crime scene and the age of the blood and how it got onto the curtain was unknown.

36.He also relied on the facts that someone, presumably the deceased, used her phone to call the applicant at 7:30 p.m. on the night of 26 November.  When this is taken in conjunction with the fact that her body was found in a popular walking area and she could have been killed within a two day period, then anyone could have killed her.

37.At the end of Mr Donald’s submission the judge ruled as follows:

“Well, for this application I won’t call upon the prosecution to reply. I do so not because I think the defence submission is devoid of merit. I think Mr Donald has made some strong points about the individual pieces of evidence of the prosecution case. But looking at the prosecution case in totality, I believe it is ultimately a case for the jury to decide what inference can be drawn in the circumstances. So I’m afraid I have to refuse the application.”

The defence case

38.Upon the judge rejecting the applicant’s counsel’s submission of no case to answer, the applicant elected to testify.  In brief, the defence case was simply that the applicant had not killed the deceased.

39.The applicant testified that he was 62 years of age and he had been on welfare since 1995.  He supplemented his income by giving music and swimming lessons and working at a construction site at night. He had been suffering from high blood pressure and diabetes.  He was divorced twice and his then current wife spent most of her time in the Mainland.

40.He said he became acquainted with the deceased in around August 2010.  They lived in the same area and they shared a passion for music and he would play the violin as an accompaniment to her singing.  He often went to the deceased’s home to give her guitar and violin lessons and he stayed overnight occasionally.  He was a hoarder and had 9 to 10 bags of hoarded items stored at the deceased’s home to which he had the keys.

41.On 25 November 2010, the deceased invited the applicant to spend a night at her home.  They tried to have sex but the applicant could not achieve an erection and he only ejaculated outside the deceased’s private parts.  The applicant denied having had an affair with another woman, a Madam Tin, as suggested by the prosecution, which also alleged that they had had numerous telephone contacts and that the deceased was jealous of his affairs with other ladies.  He also denied the suggestion that he was fed up by the frequent calls of the deceased.

42.The applicant testified that on the morning of 26 November 2010, he first went home to collect his harmonica and he then met up with the deceased to purchase some food for a barbecue at the country park. The applicant said they arrived at the country park at around 9 to 10 am.  They enjoyed food and music at the country park until around 19:00 hours, and then he parted company with the deceased somewhere outside the wet market.  The applicant did not know why there was a call made from the deceased’s mobile to his mobile at 15:52 hours whilst they were still in the country park.  He said they had never separated from each other, nor argued with each other, on that day.

43.The applicant said that on their way out of the country park that day, the deceased told him that she would wait for him in the country park the next morning, that is, 27 November.  He claimed that he had forgotten about the swimming lesson with PW9’s son until he received a call from PW9 at around 19:00 hours.  Later on he received a call from the deceased at 19:31 hours to say that she was almost home, although this call lasted only 6 seconds.  He then went to Jordan and met with Madam Tin and spent the night working at a construction site before going home the next morning.  

44.At about 09:00 hours on 27 November 2010, the applicant went to the country park to meet the deceased but she did not show up.  He tried to call her but there was no answer.  However, he had waited for only two rings of the phone before hanging up because he said the deceased usually answered her phone quickly.  He said he waited in the country park until 16:00 hours that day. 

45.The applicant said he called PW8 to cancel her violin lesson because he wanted to wait for the deceased.  He claimed that he did not tell PW8 that he had to go to the Mainland and only said he was very tired that day and wanted to take a rest.  After leaving the country park the applicant went to give a violin lesson and he spent that night, 27 November, and the next night, 28 November, at the deceased’s home.

46.The applicant said he was surprised that the deceased did not contact him but then he remembered the deceased having mentioned about going to stay with her friends in Tuen Mun.  The next morning, 28 November, after he left the deceased’s home, he tried again to call the deceased but there was still no response.  Although he had tried in vain to contact the deceased, the applicant said he did not make any inquiries about her from her friends as he was busy and it did not occur to him to make a report to the police.  He stopped calling the deceased on 28 November as he said he had lost his phone book and the contact details in his mobile phone had somehow been erased.

47.When the circumstantial evidence against him was being put to him during trial, the applicant explained that:

(a) The top-up receipt issued by 7-Eleven that was found at the scene was given by the applicant to the deceased at the country park as a reminder that he had previously borrowed the top-up money from her.  He remembered that the deceased had put the receipt inside her red jacket and the deceased must have somehow accidentally left the receipt at the scene.  The applicant denied it was he who left the receipt beside the deceased’s body.

(b) The hammer found in his possession was purchased by him two or three days before the arrest for the purpose of fixing violins.  The applicant denied the suggestion that he had brought the hammer to the country park.  He also suggested that the head of the hammer was smaller in size than the oval‑shape head injuries suffered by the deceased.

(c) The ring and the jade pendant found in his possession were given to him by the deceased who told him that he could sell them when he needed the money.  This had happened around the end of October and early November but the applicant said that these items were found to be not valuable.  The applicant denied the suggestion that the deceased would not have given him the ring and the pendant because they had sentimental value to her and denied that he had taken them away from the deceased when she was dying or dead.

(d) In respect of the deceased’s Octopus card that had been found in his possession the applicant at first claimed that it was borrowed from the deceased in order to pay for the food for the barbecue at the country park.  However, in cross‑examination when it was put to the applicant that there was no record to show that the Octopus card had been used for that purpose, the applicant explained that he borrowed the card from the deceased at a later time and paid for the barbecue food with his own money.  He denied having taken the card away from the deceased but had admittedly used all the money left on the card.

(e) As to the piece of blood stained curtain material that had been found in the applicant’s brown suitcase, he said it was picked up by the deceased from the garbage but she subsequently did not want to keep it as it was dirty.  The applicant said he saw it on the floor of the deceased’s unit and they had taken it along in a bag with a trolley to the country park on 26 November.  However, he did not take it out for any use at the country park and then he brought it back home and later placed it inside the brown suitcase.  He had not been told by the deceased that there was blood on the curtain and he had never opened it up.  The piece of curtain was found to have no trace of any mud or debris and the applicant denied having used the curtain to cover the body of the deceased.  In respect of the plastic sheet on the window of the deceased’s unit, the applicant said that he had never seen this when he was at the unit up to the time of 28 November and did not know how it came to be placed there.  

(f) As for the Oriental Daily newspaper that was found in the applicant’s brown suitcase, he said he retrieved it from a rubbish bin on the morning of 4 December 2010.  He claimed he had not read it and he did not know about the death of the deceased.

(g) In respect of the joss sticks found at the scene, the applicant denied having anything to do with them.

(h) As to the evidence of PW8, the applicant denied having said to her during her violin lesson on 30 November 2010 that something had gone wrong and claimed that there was nothing troubling him at the time.

48.The applicant denied the prosecution case as put to him in cross-examination.  This was that he had killed the deceased with the hammer on 26 November because of some disagreement between them, and that he had used the curtain in the country park at some stage to cover the deceased’s body.

The grounds of appeal

49.Mr John Haynes, counsel for the applicant, advanced three grounds of appeal in his Perfected Grounds of Appeal.  They are:

(a) the judge wrongly failed to accede to the detailed defence submissions of no case to answer since the case against the applicant was “wholly circumstantial” and none of the “circumstances” demonstrated that the applicant was guilty as charged;

(b) the judge had failed to give due consideration to the detailed defence submission of no case to answer which was deserving of a reasoned ruling;

(c) the judge failed to give a full lies direction.

50.However, at the hearing of the application Mr Haynes applied for, and was granted, leave to amend his Perfected Grounds of Appeal by adding a fourth ground of appeal.  This ground of appeal complains of a failure by the prosecution to disclose to the defence before trial that the police had located and communicated with a potential “partial abili” witness, known to the defence by the name of Wong Tak Fai.    

51.In his written submission, Mr Haynes argued in respect of the first ground of appeal that each of the pieces of circumstantial evidence relied upon by the prosecution were all equivocal and none of them demonstrated any direct connection between the applicant and the killing.  His comment in respect of each piece of evidence was:

(a) the applicant’s possession of the receipt, the octopus card, the ring and the pendant was compatible with his close and intimate relationship with the deceased;

(b) the two small bloodstains on the curtain were incompatible with contact between this article and the deceased at the time of the killing and there was no debris linking the curtain with the soils and surfaces at the country park;

(c) there was no evidence connecting the small hammer to the killing.  The dimension of the hammer head did not “fit” the lethal wound.  The DNA found on the hammer did not come from the deceased and there was no sign of post-crime cleaning;

(d) the newspaper must have been in the hands of thousands of innocent readers and proves absolutely nothing;

(e) the joss sticks could have been placed there by anyone and no connection with the applicant was proved;

(f) the conversations relating to swimming lessons and violin lessons could not connect the applicant with the killing; and

(g) the time frame for death was so wide (24 hours on either side of 15:35 on 27 November 2010) that it remained possible that the deceased was attacked during a visit to the country park when the applicant was not there.

52.Mr Haynes relied on comments by Devlin J in R v Attar (The Times, 22 March 1956), which was a murder trial involving circumstantial evidence.  In that case, Devlin J took the initiative to invite prosecuting counsel to indicate to him what was relied on to prove that the accused was guilty, and ultimately ruled that the accumulation of small items of evidence was insufficient to prove guilt.  Mr Haynes argued that the present case was even weaker than the facts of Attar.

53.Further and alternatively, Mr Haynes submitted that since the prosecution relied on the applicant having lied about his reasons and explanations in relation to the circumstances put to him, a full lies direction was appropriate and necessary.

Discussion

54.As the respondent points out in its written submission, the correct approach to determining whether there is a case to answer where the prosecution case depends upon an inference being drawn from primary facts was set out by this court in Attorney General v Li Fook Shiu Ronald [1990] 1 HKC 1.  There the Court of Appeal said the following questions should be asked:

(a) is there some evidence that the crime has been committed; if there is,

(b) is the evidence of primary facts of a quality permitting a jury to accept it; if such evidence is of appropriate quality,

(c) could, may, or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn; if a jury could, may, or might so be satisfied, the trial judge would rule against the submission or application.

55.In answering this question it is well to bear in mind the comments of Chief Baron Pollock in The Queen v Exall (1866) 4 F&F, 922, at 929:

“     It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.

Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion, but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.”

More recently, Bokhary PJ made the same point in Kissel v HKSAR (2010) 13 HKCFAR 27 when he said at 108A, “the strength of a circumstantial case comes from all of its components taken together.” 

56.It is, therefore, no answer to a circumstantial evidence case to argue that when examined separately, each piece of evidence is insufficient on its own to sustain a conviction.  Nor is it an answer to say that the pieces of circumstantial evidence are capable of bearing an exculpatory explanation.  It will be for the jury to decide what weight, if any, should be given to each piece of evidence and whether on the totality of the evidence an inference of guilt should be drawn.

57.In the present case, there is no doubt that the first two questions as set out in paragraph 54 above can be answered affirmatively.  The only issue is whether the third question can also be answered affirmatively. 

58.At the close of the prosecution case, there were a number of pieces of circumstantial evidence on which the jury could, may or might be satisfied beyond reasonable doubt of the inference that the applicant was the one who had killed the deceased.  They were:

(a) the deceased’s dead body was found in the country park whilst the applicant had been to the country park at least twice during which time period the deceased was killed;

(b) the top-up receipt of the applicant’s Octopus card was found near the deceased’s body that put the deceased right at the scene of the murder;

(c) the applicant was in possession of a hammer which according to the prosecution expert, could have been used to cause the fatal injuries to the deceased;

(d) the applicant was in possession of the piece of curtain which had the deceased’s blood stains on it;

(e) the applicant was in possession of the deceased’s ring and pendant and, given their great sentimental value to the deceased and little commercial value, it could be inferred the deceased was unlikely to have given them to the applicant;

(f) the applicant was in possession of the deceased’s Octopus card which, given its usefulness and that it would have been much easier for the deceased to give cash, it could be inferred the deceased was unlikely to have given it to the applicant if she was minded to offer him financial assistance;

(g) it was unlikely that the deceased was killed in a robbery or by a stranger because firstly, her body was disrobed and secondly, her private parts were covered partially by mud and a robber was unlikely to have done either of these things;

(h) the extensive head injuries indicated an intensity to the attack upon the deceased by the attacker which suggested that the killing was done by someone with an emotional link to the deceased rather than by a stranger;

(i) seminal stains containing the applicant’s DNA were found suggesting that the applicant had been with the deceased prior to her death;

(j) the applicant, who was apparently tight in his finances, had suddenly failed to turn up for the swimming and violin lessons for no apparent reasons;

(k) the finding of the news report of the deceased’s death showed his knowledge of and interest in the murder and yet he never made a report to the police; and

(l) the words which the applicant had said to PW8 during violin class could be interpreted as an expression of guilt.

59.In brief, the circumstantial evidence had put the applicant at the crime scene in the relevant time period, connected him to the killing and properties belonging to the deceased were later found in his possession.  Although each piece of the circumstantial evidence may, on its own, be insufficient to support an inference of guilt, the pieces taken together allow of an inference of guilt.  We are satisfied that, on the whole of the evidence at the close of the prosecution case, and taking that evidence at its highest, the jury could, may or might be satisfied of the necessary inference.  The judge was, therefore, right to rule a case to answer and to leave to the jury the question of whether the inference that could be drawn, should be drawn.  There is no merit in this ground of appeal. 

60.The second ground of appeal is that the judge failed to give adequate reasons for rejecting the applicant’s submission and finding a case to answer.  His reasons we have already set out above.  In those reasons he recognises that Mr Donald had made some strong points on the inadequacy of some of the items to, on their own, prove the guilt of the applicant. But, as the judge correctly directed himself, the proper approach is not to look at the pieces of circumstantial evidence separately and in isolation but to stand back and assess the totality of the evidence.  Doing this, the judge determined there was a case to answer.

61.The adequacy of a set of reasons in a criminal trial was discussed by Stock VP in HKSAR v Okafor [2012] 1 HKLRD 1041.  The principle to be distilled from his discussion of the authorities is set out in the first paragraph of the headnote as follows:

“The reasons must be sufficient for the particular purpose in all the circumstances and provide the basis for a meaningful appellate review of the correctness of the trial judge’s decision.”

62.Whether reasons will be sufficient will depend upon whether they inform the party against whom the decision is made why a decision adverse to him is being made.  At page 1054, paragraph 29 Stock VP said:

“Whatever the merit, the reason for the rejection of the argument or the refusal to exercise discretion in favour of the defendant should not be a secret. The reason should be clear either from what has transpired in the court of trial during the canvassing of the issues, from the nature of the issues themselves, from the evidence or a combination of these; or, indeed, from a reasoned ruling.”

63.Here, the judge indicated both in his ruling, and in the interchanges that took place between him and Mr Donald in the course of the submission, that he had taken the correct approach by looking at the evidence in its totality.  He recognized that the probative value of certain pieces of evidence was suspect.  But, as we have said, he concluded, correctly, that a jury would be entitled to infer from this evidence, when viewed in its totality, that the applicant was the person who murdered the deceased.  His view that what weight should be given to each piece of circumstantial evidence and what inferences should be drawn was pre‑eminently a matter for the jury, was correct.  When the transcript of the no case submission is read in conjunction with the judge’s ruling, the reasons for his ruling are quite apparent.  He made his reasons clear to the parties and they were adequate for the purpose they had to serve and for allowing meaningful appellate review of the correctness of his decision.  We find no merit in this ground of appeal.

64.With regard to the third ground of appeal, it is important to note how this was addressed by counsel in discussions with the judge before they made their closing addresses to the jury.  After some toing and froing by both counsel, Mr Donald said he was of the view that the prudent course was to wait and see how the prosecutor put the issue of lies in his closing address.  It is clear from what was said that as long as the prosecutor did not rely on lies as evidence of guilt then no lies direction was necessary.  Clearly Mr Donald did not think that the prosecutor had said anything to necessitate a lies direction as he did not take the matter further after he heard the judge’s summing up.

65.In his closing address the prosecutor only contended that the applicant was telling lies in his evidence and therefore his evidence should not be believed by the jury.  There was no suggestion or invitation to the jury that they could use any of the applicant’s lies as a separate item of evidence against the applicant to strengthen the prosecution case or to use any of such lies as probative of his guilt.  The case concerned only the credibility of the applicant and nothing was said to encourage the jury to engage in a line of reasoning in its use of lies, to the prejudice of the applicant.  In these circumstances, no lies direction was necessary.

66.In fact, counsel and the judge had agreed before the summing-up that a lies direction was not necessary and no issue was raised at the end of the summing-up about the absence of a lies direction.  

67.In respect of the last ground of appeal, the answer is a simple one.  There was in fact no failure to disclose relevant unused material by the prosecution of this witness statement.  The statement was disclosed in unused material but under the name of another person.  If that statement had been read by the applicant or those representing him, they would have realised that it related to the applicant’s night-time job.  In any event its evidential value was marginal at best.  It did no more than potentially provide some support for the applicant’s claim as to his whereabouts at a time that was largely irrelevant to proving his complicity in this murder.

68.There is nothing in this ground of appeal.

69.In respect of the application for leave to appeal against sentence, the sentence for murder is prescribed by law.  There is, therefore, no merit in the applicant’s application for leave to appeal against sentence.

Conclusion

70.For these reasons we refused both the application for leave to appeal against conviction and the application for leave to appeal against sentence.  

Mr William Tam SC, DDPP and Mr Raymond Cheng, SPP of the Department of Justice, for the respondent

Mr John Haynes, instructed by WH Chik & Co, assigned by DLA, for the applicant (for conviction)

The applicant appeared in person (for sentence)

[1] It was an admitted fact that the applicant never went to the Mainland.

[2] This suitcase was later found by the police during a search of the applicant’s flat.

[3] That the Octopus card belonged to the deceased was an admitted fact.