HKSAR v. Cheung Siu Yui

CACC 527/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 527 OF 2001

(ON APPEAL FROM HCCC 51 OF 2001)

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BETWEEN

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Before : Hon Stock JA, Gall J and Lugar-Mawson J in Court

Date of Hearing : 24 February 2005

Date of Judgment : 24 February 2005

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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):

1.The applicant was arraigned upon an indictment containing one count alleging that on 3 February 1995 at an apartment in Yuen Long he murdered a young lady named Lee Yuk Fun.  He was tried before Jackson J and a jury and having pleaded not guilty he was convicted on 2 November 2001.  This is his application for leave to appeal against conviction.

2.Mr Haynes has been instructed by the Director of Legal Aid on the applicant’s behalf.  He is however not in a position to advance any grounds of appeal, but is present to render such assistance as the court may require and has indeed rendered assistance in answer to our questions, and for that we are most grateful.

3.The facts fall within a relatively short compass.  On the morning of 3 February 1995 Mr Tai, the boyfriend of the deceased, visited Ms Lee’s premises and found the doors open and the place in disarray.  The diseased was lying on her bed naked save for a T-shirt, and she had died.  The police were called.  The testimony of a neighbour was that at about 2 a.m. he had heard the sound of breakage coming from her flat and shouts of a female, which shouts were gradually dying down to a muffled sound.  One of the items found at the premises was an invoice from a company that supplied gas, and the police went to the premises of that company on 8 February and ascertained that it was the applicant who had delivered gas to the deceased’s premises.  The police asked the applicant some questions and after they left – a few hours later – the applicant told the proprietor or manager of the business that his elder sister had given birth and that he wanted half a day’s leave and he also asked for a loan.  Leave was given and the loan was made.  That was the last the proprietor saw of the applicant.  When the proprietor could not trace the applicant, he so informed the police who then engaged in forensic work on items found at the applicant’s premises.  The applicant had abandoned those premises with his family and fled to the Mainland.  He was returned to Hong Kong in October 1998 and arrested.

4.After his arrest the applicant was interviewed.  He denied having ever had contact with the deceased, save for the fact that he had delivered gas to her premises on one or two occasions, but he said that he had never entered the premises.  The problem with this denial was that there were two items of forensic evidence which suggested otherwise.  The first was evidence showing that the T-shirt worn by the deceased on the night of her killing carried fibres from trousers belonging to the applicant, and the second was DNA evidence showing DNA from the applicant on the fingernails of the deceased.

5.The pathologist said that there had been a struggle at the premises.  The deceased had died as a result of pressure to her neck some time between 9 p.m. on 2 February and 5 a.m. on 3 February.  There were injuries to the deceased’s hands which were consistent with her trying to loosen her attacker’s grip.

6.The applicant’s defence was that of alibi.  He had been in all night at his own home, he said.  He had fled Hong Kong because he was under threat from loan sharks.  His explanation for the forensic evidence was that on the afternoon on 2 February he had been to a betting shop in Yuen Long where he had assisted the applicant, whom he happened by chance to see there, to fill in a betting slip and she then intervened in an altercation he was having with some other visitor to the shop.  It is noteworthy that this was never mentioned to the police, and that he had to them insisted that he had never seen her other than at her apartment.

7.In his self-drawn grounds of appeal, the applicant says that the summing-up was unfair, and that the judge was prejudiced against him; that the judge asked questions when he ought not to have done so; and the applicant repeats the account of meeting the deceased in the betting shop, saying that since this was a possible source of contact with her, so he should have been acquitted.  He complains that he was not present during the search of his premises when the police collected evidence, and he makes other allegations in respect of the search.  He has also made an application for a CCTV record of the betting shop in order, so he hopes, to support his story.

8.We have studied the summing-up and it was a model of its kind, clear and accurate and well balanced.  There can be no valid complaint about it.  There is no basis upon which we should now order the production of a CCTV record: that is a piece of evidence that, if ever available or useful, was available at the time of trial, had it been thought worthwhile to pursue.

9.There has also been a suggestion by the applicant that the judge revealed information to the jury that disclosed the fact that the applicant had a criminal record.  There is no evidence that this occurred save after the applicant was convicted when his previous conviction for a gambling offence was mentioned.  Mr Haynes, whose conscientiousness in these matters is well known, has made inquiries of trial counsel and looked at the transcript in this regard to no avail as far as this applicant is concerned; and Mr Reading confirms that the revelation of the record came only after the verdict. 

10.The evidence against the applicant was strong even though circumstantial.  He had clearly been to the deceased’s premises, had contact with her consistent with her struggling with him, and had fled the territory the very day that the police visited his work place.  His story about the betting shop was clearly a lie that supported the case of the prosecution.

11.We see nothing in this case to cause us any unease.  We see no irregularity and accordingly, the application for leave to appeal against conviction is dismissed.

Mr John Reading SC, DDPP and Miss Vinci Lam, GC, of the Department of Justice for the Respondent

Mr John Haynes instructed by Messrs S.Y. Fung, Solicitors (assigned by DLA) for the Applicant