HKSAR v. Li Suet Ping

CACC000542/2002

CACC 542/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 542 OF 2002

(ON APPEAL FROM HCCC NO. 160 OF 2001)

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Coram: Hon Stock JA, Gall J and Beeson J in Court

Date of Hearing: 24 October 2003 and 28 May 2004

Date of Judgment: 21 June 2004

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J U D G M E N T

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

Background

1.This is an application for leave to appeal against conviction.

2.On 17 October 2002 the applicant was convicted after trial by Mr Justice Lugar-Mawson and a jury of the offence of murder. The indictment alleged that on 5 January 2001 she had murdered her husband Siu On. It was common ground that she had killed him, but the circumstances of that killing were in dispute. The prosecution case was that it was a planned killing, but the defence was that she had been provoked so that the proper verdict should have been one of manslaughter.

3.The applicant and the deceased had married in 1980, but the husband left the matrimonial home in about 1997. There were two children of the family, a boy aged 14 years and a girl aged 16 years at the time with which we are concerned. The husband returned home from time to time. When he slept there, he slept on the settee.

The prosecution evidence

4.On the morning of 8 January 2001 the applicant telephoned the hotline of the Social Welfare Department and spoke to a Ms Kwok asking her whether, after death, people could stay together; and she said that she wanted also to ask the Department to take care of her two children for she did not want them to return home to see the situation there. Ms Kwok, feeling that the matter required further and urgent attention, transferred the call to a Ms Chong of Tseung Kwan O Family Services Unit. The applicant told Ms Chong that she intended to die and that she wanted the Department to take care of her children; that she and her husband had not been on good terms, and that he was already gone, and that she had hurt him and caused him to disappear and had hidden him, although she would not say where. It was meaningless for her to live on. She had done something wrong to her husband, she said. She would tell the police the next day where he was. She was waiting for the next day because she wanted to do a last thing for her daughter, namely, to replace a piece of her clothing that was ill fitting. She asked Ms Chong to collect her children the following morning. Ms Chong's evidence was that the applicant sounded distressed and suicidal.

5.Ms Chong caused the police to be alerted. They went to the applicant's premises in the Tsui Lam Estate and the applicant arrived. She was told by the police that they had already found bloodstains there, and she said "Ah Sir I suffer for quite a long period of time. I killed my husband ... I boiled a pot of hot oil and poured it onto my husband. At the time he was very painful and asked me to help him. Then I took a knife to stab him. I saw him, he was still in pain. I helped him by injecting insulin." She was asked why she had insulin and she replied "I bought it for committing suicide. I hid my husband under the bed." In her distress she kept repeating that "I didn't want to. I didn't want to."

6.The husband's body was found under a wooden bed board in the main bedroom of the apartment and the applicant insisted on seeing the body. She wailed and said "Wah On I have done you wrong. You wait for me. I'm sorry ... I'm sorry ...."

7.She was then arrested and to the arresting officer she said: "I killed him because of a problem of affection or love". She was taken to hospital for treatment because there were burns to her fingertips, her arms, legs and ankles.

8.There were found in the premises two syringes as well as a number of suicide notes written by the applicant addressed to her mother-in-law, her brother and sister, and to her children; and there were seized from the flat two bloodstained knives.

9.A neighbour, Mr Wong, had known the couple for years and said that their relationship suffered when the husband had stopped returning home and started sleeping on the sofa on the occasions he did return, and that often when he came home it was late at night and he was sometimes the worse for drink.

10.Another friend of the family and work colleague of the deceased, Mr Chow, was concerned that the deceased had not turned up for work and when he visited the flat on 7 January in the late afternoon, the applicant told him that her husband had not been seen since 5 January. The husband had premises he used in Yuen Long and Mr Chow failed to find him there and he suggested to the applicant that she should call the police but when he spoke to her on the morning of 8 January she said that before she did, she wanted to visit the place where her husband had been living in Yuen Long to see with whom he had been living.

11.The forensic evidence established that oil had been poured over the head of the deceased and that his head had been covered with layers of plastic film and then a shopping bag. The head was oily and the hair burnt, and there were two holes in the back of the deceased's pullover, one in the middle and one near the neck. The body was burnt extensively and the distribution of the burns suggested that the deceased was either sitting or reclining when the oil was poured over him.

12.He had also suffered the infliction of sixteen stab wounds and two cut wounds. There were a number of wounds to the neck, one of which was about seven centimetres deep. There were two stab wounds to the back, both of which entered the chest cavity. The cause of death was burns and multiple stab wounds. The expert's opinion was that the fact that there were stab wounds to the right temple, the back of the chest and to the front of the neck suggested changes in the relative position of attacker and deceased during the attack. Most of the wounds were concentrated on the back of the neck suggesting that the attacker may have stabbed the deceased from behind whilst he occupied a lower position. The examination of the deceased showed few defensive injuries, which suggested to the pathologist that he could only have put up a defence once he was stabbed.

The insurance policies

13.Of importance to this appeal is the evidence about insurance policies. There was evidence about three life policies and amendments made to them not long before the killing. That evidence was in the form of admitted facts but also through the oral testimony of an insurance company employee, Mr Suez. There were three such policies, each owned by the applicant. The admitted facts presented to the jury about these policies were to this effect:

(1) A policy issued in February 1999 on the deceased's life; at that stage the beneficiaries were her children and her sister. According to the admitted facts, the policy was amended in August 1999 so as to make her brother, Mr Li, the sole beneficiary.

(2) A policy issued in June 1999. The applicant herself was the insured and the sole beneficiary was originally her brother.

(3) A policy issued in January 2000. Again the insured was the applicant and the beneficiaries were originally the brother and the two children, but on 15 October 2000 a change was effected making the brother the sole beneficiary. Liability to pay under this policy was not affected by the death of the husband or its circumstances.

14.It was said, when the matter first came before us for argument, that there were material omissions or errors in the admitted facts which were to the detriment of the applicant. The differences and their relevance were not made clear, so we adjourned in order to enable counsel to tabulate the differences and present reasoned argument based upon them. It transpires that the testimony of Mr Suez showed that the picture painted by the admitted facts contained omissions and some inaccuracies in that:

(1) in relation to the first policy, there was in fact more than one amendment in August 1999, the ultimate effect of which was, at that time, to render the applicant, her children, and her brother as beneficiaries. There was a further amendment on 15 October 2000 by which the sole beneficiary became the brother alone.

(2) in relation to the second policy the documentation showed clearly that there was an amendment to this policy on 15 October 2000 by virtue of which the beneficiaries became not only the brother of the applicant, but also the children; and

(3) the testimony of Mr Suez did not change the essence of the admitted facts in relation to the third policy.

It is evident from the documents that on 15 October 2000 amendments were made to each of the three policies the effect of which was, in two cases, to make Li, the brother, the sole beneficiary and in the case of the second policy to make the children beneficiaries in addition to Li. It will be seen that the applicant did not stand to gain from any of these policies, although her brother and children did.

15.There was testimony also from the children that spoke of arguments between the parents; that the father had moved out about two years prior to his death; that there were frequent rows about money; that they pushed each other; and that the father sometimes hit the mother.

The defence evidence

16.The applicant also gave evidence. She had met the deceased in 1980 and from 1982, by which time they were cohabiting, he took to alcohol and started to use her with violence, she said, and they frequently argued about money. He moved out in 1997 and she attempted suicide and eventually an arrangement was reached by which he would occasionally return to the apartment on his days off and sleep there on the sofa. He came to the flat to stay on the night of the 4 and 5 January at her request because it was the daughter's birthday. There was an argument about money and he struck her face. In the early morning of 5 January, she ironed her daughter's clothes and went back to bed and set her alarm for 8 or 9 a.m. When she awoke, she went to the kitchen and boiled a pot of oil in order to deep-fry a pigeon. She woke her husband and went to leave the flat for work but when she reached the door he took her by the hair, she said, and demanded $6,000 which she had refused him the previous evening. He hit her and abused her with foul language and mocked her looks, and said that there was a young girl waiting for him who loved him, and he then made as if to light her hair with a cigarette lighter. He said that even if she were a prostitute, no one would want her and that he had never loved her. She said that she then lost her temper and rushed into the kitchen and took the pot of hot oil and splashed it on him. He went into the kitchen and knelt on the floor, perhaps because he had slipped and as he was thus kneeling she stabbed him with two knives. In the refrigerator there was some insulin which she had purchased to help her sleep; but she had also purchased it in order to commit suicide. The deceased was lying there on the floor and she kissed him, but he did not move any more and she could not recall whether she had used the insulin upon him. She wanted to preserve him well, so she wrapped cling film around him but after she had wrapped his head there was not enough for the rest of the body, so she took a quilt with which to wrap the body and soak up the blood and oil, and dragged her husband's body to a compartment under the bed. She intended to tell the Social Welfare Department about the matter, and then to kill herself by jumping out of the building and to this end had written the three suicide notes. There was no dispute about what she had said to the police.

17.As for the insurance policies these had been her husband's idea, and his idea too to change the identity of the beneficiaries. She did not know why he had done that. She denied the suggestion that her plan had been to kill her husband and then commit suicide, and so arranged the insurance policies that there would be money for the care of the children.

The issue

18.The issue in the case was not who had killed the deceased. The issue was whether the provocation asserted by the applicant was disproved.

The probative value of the insurance evidence

19.The first two grounds of appeal relate to the same subject matter which is that of the insurance policies:

"(1) Irrelevant insurance policy evidence was put before the jury. Viewed objectively this evidence had no probative value but its prejudicial potential was incalculable. Notwithstanding the absence of objection by the defence the admission of this evidence was a material irregularity." Mr Haynes, for the applicant, says that this evidence was inadmissible and counsel at trial should have objected to it. If relevant and admissible, it should not have been admitted.

"(2) Having admitted the insurance policy evidence the trial judge failed to give the jury careful and precise directions as to the particulars of the policies so as to remove the risk that the jury would draw prejudicial and logically unwarranted conclusions against the applicant from the general and agreed fact that three policies existed."

20.As for the first ground, it is without merit. The prosecutor put his case on the basis that this was not a sudden explosion of violence on the part of the wife, but was planned. In support of that proposition he relied, as we see from his closing speech, on a series of contentions and facts. These included:

(1) The suggestion that she could not come to terms with the fact that he had left the matrimonial home, and that he had, or so she thought, formed a relationship with another woman. Evidence that she so thought was supported by the testimony of Mr Chow as to what the applicant was concerned to do even after she had killed the deceased, namely, to see with whom he had been in living in Yuen Long.

(2) No injuries were seen on her body consistent with the attack by her husband which she had described.

(3) The evidence suggested that her husband was killed or at least badly burned whilst he was in a reclining or sitting position.

(4) There were the suicide notes, and her conversations with the Social Welfare officers were suggestive of her contemplating suicide, and she had attempted suicide previously.

(5) The evidence from the daughter that the applicant had said to her that if something happened to the applicant she, the daughter, should look to her uncle for help.

(6) The fact that the policies which she herself owned had been changed only three months before these events in favour of her children or the very uncle to whom she referred when she spoke to the daughter.

(7) The fact that after the killing the applicant had not behaved as one might expect of a person who had succumbed to a sudden rage as a result of provocation; in particular the fact that she had calmly attended a party that night in the company of others; and

(8) The fact that in the comments she did make to the police about what had happened, brief though they were, there was no suggestion that she had been attacked by the deceased.

21.Counsel for the prosecution commented too that had the husband, the deceased, taken the decisions in relation to the insurance policies, it was unlikely that he would have wanted the brother-in-law to be a beneficiary. Indeed, counsel might have added that one of the suicide notes drawn by the applicant specifically asked the brother to care for the children. In cross-examination of the applicant, counsel stressed the fact that the policies were taken out well after the husband had left home, so that it was unlikely that the husband would have insisted on these policies or on changes to them.

22.The argument that in the circumstances the policies had no or little probative value is not an argument that finds favour with us. The applicant was represented at trial by experienced counsel who not only took no objection to the admissibility of this evidence, but signed a statement of admitted facts dated 10 October 2002 by which details of the policies were presented to the jury. We accept that in a murder case especially, all proper effort must be made to ensure that nothing of any possible significance has gone wrong in the trial below. That said, this particular complaint flows entirely against the stand taken by the applicant's counsel in the court below who took no objection to the admission of the evidence, and instead pointed to the long lapse between the issue of the policies, on the one hand, and the date of the killing, as gainsaying the prosecution case. He no doubt saw, as second nature should dictate, that this evidence was relevant to an issue at trial and therefore admissible and that its probative value was not exceeded by its prejudicial effect. He was quite right to take that view.

23.It was said by Mr Haynes at the first hearing of this application that there was no evidence that the applicant had herself effected the changes to the policies and that the evidence of Mr Suez was unclear as to the effect of the policies in the event of the applicant's suicide. That is not so. The applicant herself said that she had effected the changes, but had done so at her husband's insistence. The applicant herself did not suggest that she had delegated that power to her husband; merely that he had suggested the changes.

24.It is suggested that the issue was left as one of pure speculation. The judge specifically warned the jury about the dangers of speculation in the context of the fact that the prosecution case relied on circumstantial evidence. He said:

"On this matter, I cannot stress enough, ladies and gentlemen, that you should be very careful to distinguish between arriving at conclusions based on reliable circumstantial evidence and mere speculation. Speculating in a case amounts to doing no more than guessing or making up theories without good evidence to support them and neither the prosecution, the defence, nor you the jury should do that."

25.Then it is argued that the state of the evidence about the insurance policies was necessarily confusing because of the differences between the admitted facts and the testimony of Mr Suez, and that in the result the conviction is unsafe and unsatisfactory, not least because the judge told the jury to treat the admitted facts as correct. It is indeed lamentable that counsel managed to agree a set of facts that was incomplete and, to a degree, inaccurate. But we do not adjudge that the result is unjust or results in a conviction that is unsafe. There can be little doubt that counsel and the jury treated the evidence of Suez - evidence which the judge rehearsed in some detail - as supplementing the admitted facts. If it be said that the jury might have concentrated on the admitted facts, then that enured to the benefit of the applicant because the admitted facts did not reveal, in the case of the first and second policies, the changes made as recently as October 2000.

The jury questions

26.The point in this appeal which was developed extensively during the recent oral submissions and which somewhat exercised our minds was that which asserted that prosecuting counsel put a series of questions in cross-examination of the applicant, and in his closing submissions made assertions, which, in their effect, directly contradicted an agreement between counsel and the court, and contradicted as well a direction given by the judge.

27.On 10 October 2002, in the course of the trial, the jury submitted in writing a question as follows:

"We do not understand why Siu On would accept LI Kwok Tim to be the sole beneficiary of his policy (brother of his wife instead of his wife and kids?) (i.e. the first policy). What's the possible reason behind? Besides, the signature of Siu On signed on 15 Oct. 2000 (Request for services [for Amendment]), [21 Dec 1998] (Declaration of Insurability) and 4 Feb. 1999 (Amendment/Supplement to Application) are ALL rather DIFFERENT. His signature on 4 Feb. 99 and 28 Jan 99 (Debit-Authorization Agreement) are the same though.

Can we have witness to clarify this point/issue?"

28.There followed a discussion between counsel and the judge about the appropriate response to these questions. For present purposes it suffices to concentrate upon the question about the signatures, for that is the issue which it is now said was dealt with by counsel for the prosecution inappropriately without any correction by the judge either at the time or in his summing-up.

29.The trial court and counsel were at one stage minded to the view that the appropriate direction in answer to the question was that the jury should proceed on the basis that the signatures on the first insurance policy, and in particular those on the proposed amendment to that policy dated 15 October 2000, were indeed those of the deceased. It was in the applicant's favour that that should be said since, if the signatures were indeed those of the deceased, the contention made by the prosecution, that the deceased was unlikely to have known about the amendment made whereby the applicant's brother was the sole beneficiary, would be undermined.

30.However, counsel for the applicant at trial himself pointed out, quite correctly, that there had been no expert evidence about these signatures and that the documents before the court were only photocopies. It was therefore agreed that all that had to be said on this issue was that the jury should not speculate about it.

31.What the judge said to the jury was this:

"The first question on that note was, 'We do not understand why Siu On would accept Lee Kwok-tim to be the sole beneficiary of his policy, the brother of his wife, instead of his wife and kids, i.e. the first policy. What's the possible reason behind?'

I have discussed this with counsel. This is just not an issue in this trial. It is not a matter that needs concern you. Bear in mind the evidence was that Siu On was only the life insured under that policy. He is not the person who had taken it out. He was not the owner of the policy. But as I said, it is not in issue in this trial. It is not a matter that needs concern you and you must not speculate about this matter.

You then asked a series of questions about signatures on various documents attached to that policy, signatures of Siu On. Again, this is not an issue in this trial. Please don't speculate about it. It's not an issue. There must be no speculation. Please do not engage in freelance detective work. These matters need not concern you. The real issues will become very evident when both counsel and I address you at the end of the case." (Appeal bundle pp 167N-168B).

The effect of those directions was that in the absence of expert evidence, there was to be no "detective work", by which was clearly meant no comparison of signatures.

32.Mr Haynes, for the applicant, contends that this sensible direction was flouted or undermined by counsel for the prosecution. We see (p. 99 of appeal bundle) the following questions asked and answered in cross-examination of the applicant:

"Q. Did your husband even know about this insurance policy?

A. He bought it, of course he knew.

Q. Could it be the case that you bought the insurance policy and he didn't even know about it?

A. No."

33.In his closing speech to the jury, counsel for the prosecution said as follows:

"... as the owner, she could determine exactly who the beneficiaries were or weren't. She could make anyone, anybody, a beneficiary. She could have made herself a beneficiary, her children a beneficiary in relation to her own will. She could have made her husband a beneficiary. Interestingly enough, she makes her elder brother the beneficiary of all these three insurance policies.

You may think, why would the deceased have an insurance policy on him of - convert it to - converting it to HK dollars - over a million dollars? Why would he make the beneficiary or agree to the beneficiary being the defendant's elder brother? You would think that if he had any say in the matter, he would make the beneficiary either his children or he would make the defendant herself the beneficiary so that the children could benefit.

But, according to the defendant, he didn't do that. He wanted the beneficiary to be his brother-in-law, the defendant's elder brother. Now, whether you accept what the defendant says about that or not, it's a matter for you, but I would suggest that it may be that the deceased didn't even know what was going on, that he didn't know that there was an insurance policy which was owned by the defendant, that the beneficiaries had been changed to the elder brother, that his wife was insured and that his children or members of his family were not going to get any benefit from it at all." (Appeal bundle pp. 141N-142D).

34.The contention advanced by Mr Haynes is that counsel was here suggesting precisely that which the judge had precluded the jury from speculating about, namely that the deceased did not know about the first insurance policy or the amendments made to it and, it is said, counsel was inferentially asking the jury to say that the signatures on the insurance policies were not the deceased's.

35.We note that no objection was taken by counsel for the applicant in the course of prosecuting counsel's cross-examination, or in the course of or at the end of prosecuting counsel's speech, to the passages which are now said to have undermined, improperly, the applicant's defence.

36.We have since argument carefully analysed the matter and we can now readily see why no objection was taken. We are satisfied that in putting the questions which were put and in addressing the jury as he did, prosecuting counsel did not fall foul of the directions which the judge had given to the jury not to speculate.

37.One needs to identify clearly to what end that injunction against speculation was directed. That can only be determined by looking back to the question which the jury asked. It is clear from the jury's question that the jury was minded to conclude that because the signatures appeared different, the deceased could not have known about the amendment to the first policy dated 15 October 2000, and that therefore the applicant's story that the amendment had been made at the deceased's behest was untrue. The line of reasoning which was precluded by the judge in his directions was a line that depended upon a comparison of signatures, and went no further than that. This clearly was not intended, nor could it reasonably have been intended, to preclude prosecuting counsel from pointing to other indicia which suggested that the deceased was unlikely to have known about the amendment. We note that neither in cross-examination of the applicant nor in his closing submissions did counsel for the prosecution mention the signatures; nor did he hint that the jury should conclude from the differences in signatures that the applicant's account had been untrue. Instead, what he did was to promote an altogether different line of reasoning, which was that they should conclude that the deceased did not know of the first policy and amendments to it because, and only because, it was most unlikely that he would have agreed to a scheme whereby (ultimately) the sole beneficiary under the policy was a comparative outsider, namely, the applicant's brother. This was a permitted line of reasoning. It was a point which was put to the applicant in cross-examination. It was a 'jury point' which prosecuting counsel was entitled to make. If from that line of reasoning the jury were to conclude that the signature dated on the document dated 15 October 2000 was not that of the deceased, then so be it. That is a matter entirely different from concluding that the signature was not his as a result of an examination and comparison of various signatures which purported to be his on that and any other document.

38.In the event, therefore, we are satisfied that the point is not meritorious.

Other points

39.It was contended that counsel for the prosecution put unfair and inappropriate questions to the applicant in cross-examination as well as inaccurate facts, and that the judge's summing-up failed to deal with them.

40.This ground arises from that part of cross-examination which put to the applicant that she had told the court a story different from the one she had told to the police. Mr Halley, counsel for the applicant at trial, objected saying that she had not told a different story to the police because she had admitted to them killing her husband.

41.The essence of the cross-examination was that she had never told the police that her husband had attacked her, that she had said instead that she had killed him because she was suffering for a long time and had said nothing about losing self-control. Her answer was that she did not wish at that stage to blame him.

42.It is said that this was unfair and prejudiced the defence of provocation. Of course it prejudiced the defence. It was intended to. The question is whether this line of attack was permissible. We see nothing wrong with it. It is noticeable that the applicant gave a reason for the killing. It was out of love, she said. That was hardly consistent with her testimony, and counsel was entitled to draw that out. In any event the judge warned the jury that counsel's questions did not constitute evidence.

43.It is also said that when summing-up, the judge gave undue emphasis to the prosecution arguments and too little to the defence case. What the judge was doing at the stage of the summing-up to which this criticism was directed was to rehearse the arguments of counsel in their closing speeches. The fact of the matter is that counsel for the prosecution had more discrete points to make than that did counsel for the defence. The one was more specific than the other. That is not to say that one was more meritorious than the other. But a rehearsal is not unbalanced as a matter of the number of references. Fairness is a matter of context and issue and balance, and this summing-up when read in the context of the case and the issues raised, and as a whole, was, in our judgment, fair.

44.Finally there is a ground which asserts that the evidence of premeditation was unsafe when viewed against other facts proved in the case. We do not agree. We have rehearsed the points to which counsel referred as making the circumstantial case against the applicant of premeditation, and we think they have sufficient force to allow one to rely on the verdict which the jury returned as safe.

45.There are other matters of detail raised but we are satisfied that none, either individually or in combination, renders the conviction unsafe.

Conclusion

46.Accordingly, the application for leave to appeal against conviction in this case is dismissed.

47.The applicant, albeit in person, has lodged an application for leave to appeal against sentence, despite the fact that the life imprisonment is in this case a mandatory term. Unless the applicant intimates otherwise within fourteen days of the handing down of this judgment, that application will be heard on a date to be fixed.

Addendum

48.We wish to add a comment about an aspect of prosecuting counsel's address to the jury, albeit not the subject of a complaint in the grounds of appeal.

49.In the course of that address and after rehearsing the applicant's account about how her husband chased her into the kitchen after he had been burnt with oil and a discussion they were meant to have had, according to the applicant, of meeting in the after-life, counsel (who does not appear before us on this appeal) then said this:

"To me, members of the jury, and I'm sure it is to you, it's just total nonsense."

50.That was an improper remark. Counsel should never express a personal opinion of this kind. That is not his or her job. Counsel's job is that of an advocate for a case, and not as a proponent of his or her own views; most particularly not before a jury. Nor should a judge permit such advocacy to pass without correction.

Representation:

Mr John Haynes assigned by the Legal Aid Department for the Applicant (re: Conviction)

Applicant in person (re: Sentence)

Mr D G Saw, SC, DDPP leading Ms Peggy Lo, GC of the Department of Justice for the Respondent