HKSAR v. Li Lai Yee

CACC 554/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.554 OF 2003

(ON APPEAL FROM HCCC 87 of 2003)

____________________

BETWEEN

____________________

Before:   Hon Stuart-MooreAg CJHC, Lugar-Mawson and McMahon JJ

Date of Hearing: 1 December 2004

Date of Judgment: 1 December 2004

______________________

J U D G M E N T

______________________

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

1.On 3 December 2003, after a trial before Beeson J and a jury, the applicant was convicted of murdering her husband, Ng Kim-wah (“the deceased”), and sentenced to life imprisonment.  The applicant now seeks leave to appeal against conviction and sentence.

2.Mr Donald, who has been assigned by the Director of Legal Aid to represent the applicant, has been unable to find any arguable grounds of appeal.  However, in her ‘homemade’ grounds of appeal against conviction, the applicant contends that she did not commit the murder, that the trial was unfair and that the judge misled the jury in the summing up.  The applicant has expanded on these matters at the hearing today.

3.Mr Reading, SC, appearing on the respondent’s behalf, has informed the court that he together with Mr Liu, his learned junior who prosecuted at the trial in the court below, have carefully perused the documents in the appeal bundle which include, of course, the transcript of the summing up.  They, like Mr Donald, have been unable to find any basis for overturning the conviction.  It was submitted therefore that the conviction was neither unsafe nor unsatisfactory.

4.The background of the case taken from the evidence called at trial was very straightforward.  The applicant and the deceased were married in Hong Kong on 5 May 1990.  The applicant gave birth to a son in Canada in 1996, and she and the deceased returned to Hong Kong in 1997.  They resided together at a flat in Quarry Bay and, in 1998, the deceased commenced working as a computer technician.

5.The applicant worked as a training manager for an insurance company.  In 2000 she was stationed in Guangzhou, where she worked for a Mr Ho until, in September, she was badly injured.  She then returned to live with the deceased in Quarry Bay.  In November 2000, the applicant went to Canada to recuperate from her injuries.

6.It appears that in April 2000 the deceased met Madam Tsang Sau-mei and, at the end of that year, they commenced a relationship.

7.In May 2001, the applicant again returned to the matrimonial home in Quarry Bay.

8.On 30 November 2001, a female telephoned the flat in Quarry Bay and the call was answered by the maid, Madam Yip.  The caller was trying to contact the deceased.  Madam Yip later told the applicant about the call and this led to a confrontation between the applicant and the deceased.

9.On 7 December 2001, the deceased had a conversation with the applicant, during which he suggested to her that they should divorce.

10.Sometime between 12 and 14 December 2001, the applicant, accompanied by Madam Yip, purchased a metal bucket and some charcoal.

11.On 13 December 2001, the applicant obtained some sleeping pills from a Dr Ko, and on the same day obtained another quantity of sleeping pills from a Dr Kan.  On 19 December 2001, the applicant obtained further quantities of sleeping pills from each of these doctors.

12.During the afternoon, on 22 December 2001, Madam Yip set the dining table in the flat and prepared rice and some soup.  The jug in which the soup would be served at the table, was on the table.  When the applicant came home, Madam Yip told her what she had done in respect of the preparation of the evening meal.  Although it was not Madam Yip’s scheduled night off, the applicant told her that she could leave.  The deceased had not yet arrived home.  He arrived at about 5:40 p.m.

13.At 9:13 p.m. the police received a ‘999’ call, reporting a fire at the applicant’s flat.  When firemen broke their way in, they were confronted by thick smoke.  The applicant was in the living room, shouting for help.  The firemen discovered the deceased lying on a bed in his bedroom.  The applicant and the deceased were taken to hospital.  The deceased was certified dead on arrival and the applicant was placed in intensive care.

14.It was discovered that the fire had commenced in the deceased’s bedroom, and a metal bucket containing burning charcoal was found near the door of the premises.  It was later determined that the source of the fire in the premises was the burning charcoal in the bucket.

15.A subsequent post-mortem examination on the body of the deceased established that the cause of death was smoke inhalation and burns.  Blood and other samples from the deceased were sent for analysis.  Traces of a sleeping pill known as Lormetazepam were found in the blood sample, whilst traces of the same drug, as well as Nitrazepam, another type of sleeping pill, were found in the stomach contents.  These drugs were of the same type as those which Dr Ko and Dr Kan had prescribed on 13 and 19 December 2001.  The soup jug, which was seized from the flat as an exhibit, was also found to contain traces of both drugs.

16.According to the forensic pathologist, the deceased would have been alive but unconscious during the course of the fire because of the large quantity of drugs in his system.

17.Madam Yip testified that on one occasion she had been with the applicant when she had seen the applicant purchase some syringes.  Later, she observed the applicant injecting something into a pack of vitasoy which she thought might have been weight-control pills.

18.The applicant was spoken to by a police officer at the hospital.  She said that during the evening, she and her husband had spoken about extramarital affairs and she had found out that he had a girlfriend.  They chatted until about 8 p.m. and then went to bed separately.  Later, she smelt some smoke and saw that it was coming from her husband’s bedroom.  She got some water to put out the fire but was unsuccessful.

19.The applicant was arrested on 28 December 2001.  She declined to answer questions about the incident.  She was further interviewed on 29 December 2001 and again on 29 October 2002.  She made no admissions in those interviews although she provided a certain amount of relevant background information, much of which was incorporated in the agreed facts.

20.Between 28 December 2001 and her appearance in the Magistrates’ Court on 15 November 2002, the applicant, on several occasions, made inquiries at the insurance companies which had insured the deceased’s life.  She informed one of the people with whom she spoke that the deceased had committed suicide.  However, evidence was led at the trial to negate the possibility that the deceased had taken his own life.

21.The applicant, aged 37, who had received a university education, did not give evidence at her trial.  The evidence against her was entirely circumstantial.  It was also very substantial.  In the oral submissions placed before us today by the applicant, she has asserted nothing which could affect the integrity of the summing up or the verdict.

22.The judge’s summing up was not only comprehensive but also fair and balanced both as to the law and the facts.  We are satisfied that there are no grounds for interfering with the conviction.  Accordingly, the application in relation to conviction is dismissed.

23.All we need to say, finally, is that a life sentence is mandatory for the crime of murder for all who are aged 18 or over at the time of the offence.  The application for leave to appeal against sentence is dismissed.

Mr John Reading, SC and Mr Liu Yuen-ming, SGC of the Department of Justice, for the Respondent.

Mr Richard Donald, instructed by Messrs Solomon C. Chong & Co., assigned by the Director of Legal Aid, for the Applicant.