HKSAR v. Lee Kwok Oi

CACC 515/2003 &
CACC 50/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NOS. 515 & 50 OF 2003

(ON APPEAL FROM HCCC 63 of 2003 & HCCC 62 OF 2002)

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BETWEEN

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Before: Hon Ma CJHC, Stuart-Moore VP and Stock JA

Date of Hearing: 5 May 2005

Date of Judgment: 5 May 2005

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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 13 December 2002, the applicant pleaded guilty before V Bokhary J to a single count alleging that he had detained, by force or by fraud, Tse Oi-lam (the victim) against her will on or about 21 September 2001 with intent to procure a ransom for her liberation, contrary to section 42 of the Offences Against the Person Ordinance, Cap. 212.  The applicant was sentenced on 17 January 2003 to 16 years’ imprisonment against which he now (in CACC 50/2003) seeks leave to appeal.

2.The victim in CACC 50/2003 was a ten-year-old girl whose body was found on 22 September 2001 floating at the waters edge near Aberdeen.  She had been strangled.  Soon after the applicant had been sentenced for forcible detention, he was further charged with murder (in CACC 515/2003).  On 18 November 2003, he was convicted after a trial before Jackson J and a jury and now seeks leave to appeal against his conviction.

3.In these consolidated applications, Mr Raffell represents the applicant in CACC 515/2003.  He has, however, indicated perfectly properly that he has been unable to find any arguable ground to put before the court.  The applicant is not represented in his other application and, with regard to both applications, he had supplied no written grounds of appeal in advance of this hearing.  The applicant did, however, apply for an adjournment on the ground that he required further transcripts but, having heard the applicant at length, it was apparent that there was no basis on which an adjournment could properly be granted, particularly bearing in mind that the applicant has at all times been legally represented.

CACC 515/2003

4.In CACC 515/2003, the case for the prosecution consisted of various strands of evidence which combined to make a compelling case of murder against the applicant.  In brief, the post-mortem on 22 September 2001 revealed that a piece of electric flex had been fastened round the victim’s neck with a complex non-slipping knot which formed a tight double ligature. 

5.In due course, the pathologist was able to estimate that the victim had died about 1 to 1½ days prior to his preliminary examination.  In its practical effect on the facts of this case, this would have related to a period between about 10 a.m. and 10 p.m. on 21 September 2001.  On that day, the victim had been telling her friends that her “uncle” was going to take her to Ocean Park. The applicant was known to the victim’s mother and grandmother and the victim herself called him “uncle”. 

6.CCTV film in a convenience store close to the victim’s home recorded her in the company of the applicant at 2:30 p.m.  After 9:00 p.m., on 21 September 2001, the victim’s father began to receive telephone calls while he was on the Mainland, demanding $500,000 for the victim’s release.  These calls continued into the following day.  He made a record of one of the telephone numbers from which they were coming.

7.At 7:00 p.m., on 22 September 2001, the police raided the applicant’s address and found a telephone and two SIM cards, one of which matched the number recorded by the victim’s father.  The applicant’s response was that he had not been involved in the kidnapping beyond doing what a person he called “Tai Tau B” had told him to do.

8.Subsequently, the applicant made admissions to the police relating to the kidnap of the victim and the ransom calls to her father but at no stage did he make any admissions which implicated him in the murder.  However, in the applicant’s possession at the time of his arrest was an Octopus card which revealed that it had been used between Aberdeen and Wanchai at 8:22 p.m. on 21 September 2001, and telephone records confirmed that calls had been made from the numbers found in the applicant’s possession to the victim’s father.  Perhaps the most significant discovery was that the applicant had access to a boat at Aberdeen on which his palm print was found.  Expert evidence demonstrated that flex used to tie the ligature around the victim’s neck had been cut from a roll of electric flex found on board the boat.

9.The sole real issue in the case was whether it was the applicant who had murdered the victim.  The applicant did not give evidence, but his case was presented on the basis that the evidence did not conclusively establish his guilt.

10.The judge summed up the law and the evidence with complete accuracy and fairness. 

11.The applicant presented a number of submissions to us, having had his application for an adjournment rejected.  Amongst other things, these related to a request that we should stay the murder proceedings which he alleged ought to have been stayed by the judge in the court below.  There was also a suggestion that defence counsel had not properly conducted the defence that some of the prosecution’s evidence was served so late that it caused prejudice to the presentation of the defence case.  None of these or other grounds put forward by the applicant were of any substance. 

12.The evidence against the applicant was overwhelming.  There was no merit whatsoever in his application. 

CACC 50/2003

13.The indictment for forcible detention, which is now the subject of CACC 50/2003, ceases in the light of the murder conviction to have any real significance.  

14.The mitigation, following the applicant’s plea of guilty, purported to represent the applicant’s remorse.  However, it is apparent from the facts which emerged in the murder trial that the applicant was merely seeking to cover his guilt as a murderer when he pretended that a so-called “Tai Tau B” was the main culprit in the forcible detention of the deceased.  It is now abundantly plain that the applicant was acting alone when carrying out this premeditated plan to kidnap and kill the victim.

15.This application is without substance.

Conclusion

16.Both of these applications are dismissed.

Mr D G Saw, SC and Mr Vincent Wong, SGC, of the Department of Justice, for the Respondent.

Mr Andrew Raffell, instructed by Messrs W K To & Co., assigned by Director of Legal Aid, for the Applicant. (re: CACC 515/2003)

The Applicant, in person. (re: CACC 50/2003)