HKSAR v. Yung Ka Lun Jerry

CACC 202/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.202 OF 2003

(ON APPEAL FROM HCCC 403 of 2002)

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BETWEEN

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Before: Hon Stuart-Moore VP, Lugar-Mawson and Lunn JJ

Date of Hearing: 21 October 2004

Date of Judgment: 21 October 2004

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.On 7 May 2003, the applicantwas convicted of the murder (on 8 July 2002) of a young woman (the deceased) following a trial before Jackson J and a jury.  He now seeks leave to appeal against conviction.

2.The deceased was killed in her own flat in Hunghom.  The applicant, then aged 26, and his wife were the neighbours of the deceased.  The main issue at trial was whether, in killing the deceased, the applicant had the necessary intent required to establish murder.  To a large extent, this turned on the applicant’s credibility in relation to his statements under caution and his testimony in court.

3.The murder came to light when sometime after 5 pm on 9 July 2002, the day after the killing, smoke was seen coming from the deceased’s room.  The door was locked but neighbours broke in and found the deceased lying on the floor.  Her body was partially burnt and there were wide-spread bloodstains over the floor and elsewhere.

4.In the initial police enquiries, the applicant was interviewed as a near-neighbour.  Two witness statements were taken from him on 10 July 2002.  In short, the applicant gave an exculpatory version of events.  He said that he had heard sounds coming from the deceased’s room during the evening of 8 July 2002, including the sound of a woman crying out.  He impliedly suggested that the deceased had been injured by someone at about 11 pm that night and that the culprit had departed shortly afterwards.

5.He explained an injury which he had sustained to his knee.  He said that he had quarrelled with his wife earlier that same night, at about 8 to 9 pm.  As a result of the quarrel, he was so upset that he took a fruit knife from his kitchen and cut himself around his right knee causing it to bleed.  He said that at about 10 pm when he heard a sound coming from the deceased’s room, he was watching television with his wife.  It was only at around 11 pm that night that he began to feel pain from his wound.  He then went with his wife to see a doctor.  He said that he came to know of the fire in the deceased’s room only after his medical treatment.

6.On 11 July 2002, the police conducted a search of the applicant’s room in his and his wife’s presence.  Police obtained samples from them for forensic examination and also arranged an examination of the applicant by a forensic pathologist.  An appointment was made to see the applicant on 12 July 2002 but he did not keep it.  He was eventually arrested on 17 July 2002.

7.Under caution for the offence of murder, the applicant said that he knew he had done wrong, adding that he had not killed the deceased deliberately.  He stated that his wife had had nothing to do with the killing.

8.Two video-recorded interviews and one video reconstruction then took place.  The admissibility of these interviews was not challenged.  The applicant, however, gave a wholly different version of events to that which he had provided in his witness statements.

9.In the first interview, the applicant admitted that he had injured the deceased with a knife, but said that he had not intended to kill her.  He said that he entered the deceased’s room with intent to steal only.

10.He said that he had seen that the door leading to the deceased’s room was not firmly closed and he assumed that she had gone out to discard rubbish.  However, when he went into her room, intending to steal, he found her there.  He was frightened and was afraid that she would scream or draw attention to his entry so he, “by mistake”, stabbed her once or twice with the knife.  He was also injured on the knee.  He said that he managed to clean the blood off himself in the toilet.  He then stole some money from the deceased, as well as her mobile telephone and identity card, before returning to his flat.

11.Later the same day, he went to hospital for treatment to his knee injury.  He was accompanied by his wife and was discharged from hospital at about 2 pm on the following day, 9 July 2002.  After that, he bought two litres of petrol and some cotton waste for use in setting fire to the deceased’s body.  He returned to her room, covered the body with a quilt, and poured some petrol on it.  He proceeded to set fire to the quilt using the cotton waste and a lighter.  He then returned to his flat.

12.After this, he left the scene and went to the Social Welfare Department for an appointment with his wife.  Later, he played games in an amusement games centre.  At about 5 pm, the applicant and his wife returned to their home.  In the lift lobby of their floor, they met a neighbour who told them that there was heavy smoke coming from the flat.  The applicant returned home and opened the door of the flat to take a look.  He then went downstairs to inform the watchman about the fire.

13.In his second interview, the applicant said that when he confronted the deceased, she told him that she would give him money.  When he was asked why it was that he had still attacked her, he replied that it was because she only pretended to get some money.  She then put up resistance and tried to push him away in order to run.  He then took a knife to scare her but she snatched it.  They struggled with each other.  He said he did not know how the deceased was stabbed during the confusion which followed.

14.In explaining why he grabbed hold of her and did not let her leave the room, the applicant admitted that it was because he was afraid that someone would “know it”.  He admitted stabbing the deceased twice, describing the situation as “confused”.  When asked about the deceased’s response after the first stab, he said that she lay down, without crying for help.  When asked, if that was the case, why he stabbed her again, he changed his version by saying that she had continued to struggle and was still standing after the first stab.  He said that his knee was injured when they were snatching for the knife in the confusion.

15.On the applicant’s direction, the knife he used to stab the deceased was subsequently recovered by police from a drainage ditch near his home.  The blade of the knife was about 20.5 centimetres in length.

16.The forensic pathologist’s evidence showed that the deceased had in fact sustained a total of eleven recent injuries, including four stab wounds.  They were caused by a total of about seven to eight attacks.  Out of the four stab wounds, two were fatal and deep.  In particular, a stab wound to the deceased’s abdomen was 12 centimetres in length.  This caused extensive bleeding around the right kidney and into the pelvic region as far as the bladder.  The second deep stab wound was at the front of the deceased’s right shoulder near the armpit measuring about 25 centimetres.  This had penetrated the right lung.

17.From the wide distribution of the four stab wounds, it was the pathologist’s opinion that these were unlikely to have been inflicted by accident.  Taking into account the amount of force used to cause the two fatal stab wounds, they were consistent with a deliberate stabbing.  The bulk of the remaining wounds were defensive wounds.

18.When the applicant testified, he adhered to the version he had given in the video interviews.  It was put to him in cross-examination that he had killed the deceased to ensure her silence because he was known to her by sight.  The applicant denied this.

19.Mr John Haynes is instructed in these proceedings by the Director of Legal Aid to represent the applicant.  However, perfectly properly, he has indicated to us that he has been unable to find any grounds on which to seek leave to appeal.

20.In a recent letter from the applicant himself, he raised concerns about the fairness of his trial.  However, these were matters which advanced his case no further.  The summing up dealt with all aspects of the law and the facts in a manner which gives rise to no cause for complaint.

Conclusion

21.The application is dismissed.

Mr Gavin Shiu, SADPP and Ms Ada Chan, of the Department of Justice, for the Respondent.

Mr John Haynes, instructed by Director of Legal Aid, for the Applicant.