HKSAR v. Leung Wing Sing

CACC 94/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 94 OF 2006

(ON APPEAL FROM HCCC NO. 373 of 2004)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Yuen JA and Burrell J

Date of Hearing: 1 December 2006

Date of Judgment: 1 December 2006

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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 27 February 2006, the applicant was convicted of the murder of his wife, Lau Siu-han (the deceased), following a trial before Beeson J and a jury.  He now seeks leave to appeal against conviction.

2.The applicant and the deceased were married in 1985.  They had a daughter and a son aged 17 and 14, respectively, at the time the deceased was killed inside her flat in Kennedy Town on 30 September 2003.  The applicant worked as an ambulanceman for the Fire Services Department.

Prosecution’s case

3.The offence came to light when a 999 call was received by police at 9.39 am on 30 September 2003 from the applicant which police officers and an ambulanceman promptly went to deal with.  The applicant duly led them to a bedroom where the deceased was lying on the bed dressed in a T-shirt and shorts.  She had a towel over her neck and showed no sign of life.  Resuscitation was attempted but failed.  Death was formally certified by Dr Lu at Queen Mary Hospital at 10.08 am when the “core temperature” of the deceased’s body gave a reading of 35°C.

4.It was established in due course that the deceased had been strangled.  The prosecution’s case against the applicant was based on circumstantial evidence.  In brief form, to adopt the essence of Mr Saw SC’s synopsis on the respondent’s behalf, their case was that the applicant had been involved in a relationship with another woman and stood to gain financially from an insurance policy which he had taken out on the deceased’s life.  Importantly, also, the deceased’s blood and urine was found to contain a high level of the drug known as ‘Zopiclone’ which acts as a strong sedative.  The applicant had been overheard by his children, on the night before the deceased’s death, telling the deceased to take four tablets he had for her.

5.When questioned about the death of the deceased, the applicant told the police that he had spoken to the deceased for several minutes at around 7.15 to 7.30 on the morning of her death before he left the flat at about 8 am.  He returned at about 9.30 am to find that she was dead and that parts of the flat had been ransacked by an intruder who had stolen a number of items.  However, his story about speaking to his wife before he left the flat that morning was in direct conflict with the evidence of the pathologist who conducted a post-mortem at 2.45 pm on the day of the deceased’s death.  The pathologist found that rigor mortis was by then complete and hypostasis well advanced which eventually led him to put the time of death at between 1 am and 4 am.  If so, this meant that the applicant’s account of his conversation with the deceased at about 7.15 or 7.30 am was untrue.

6.The prosecution also relied on evidence that on the day before, and again on the morning of the death, the applicant had contacted an insurance agent in relation to an insurance policy on the life of the deceased.  In a further telephone conversation, he had spoken to his son who was waiting to be interviewed at the police station and instructed him not to tell the police that he (the applicant) had given sleeping tablets to the deceased.

7.The main issues at trial were concerned with the accuracy of the children’s evidence in regard to the sleeping pills; the telephone conversation the applicant allegedly had with his son; and the time of the deceased’s death, given the expert evidence that it could not have been at the time alleged by the applicant.  We will deal with the last of these points first.

8.At 2.45 pm on 30 September 2003, Dr Tso Chi-bun performed a post-mortem examination on the deceased.  The body was that of a medium-built Chinese adult female, rigor mortis was complete, well-developed hypostasis was present at the back of the body and the measured rectal temperature was between 30.5°C to 31°C.

9.There were ligature marks on the neck and signs of asphyxia found on the body of the deceased indicated that she had died of ligature strangulation.  There were abrasions and small bruises on the right front and side of the neck which could have been fingernail marks, either inflicted by the assailant attempting manual strangulation prior to ligature strangulation or by the deceased in a feeble struggle to release the ligature.

10.Initially Dr Tso concluded that the time of death, based on the rectal temperature at the time of the post-mortem, together with the extent of rigor mortis and hypostasis, was between 1 am to 2 am.  However, he was at that time unaware of the fact that the deceased’s rectal temperature had been taken by Dr Lu at around 10.08 am when it was 35°C.  With this additional information, he revised his estimate of the time of death to be between 1 am and 4 am.  He was adamant that it could not have been between 8 am and 9.30 am, the time during which, on the applicant’s account, the applicant was away from the flat.

11.Toxicological analysis of the post-mortem samples showed a Zopiclone level of 0.39 ug/ml in the blood.  No other drugs, including analgesics, were found.  Zopiclone is a hypnotic agent (sleeping pill) with a therapeutic level of about 0.04-0.07 ug/ml which is the blood level at which the drug is expected to have its desired hypnotic effect.  The level of 0.39 ug/ml is much higher than the usual therapeutic range.

12.A number of drugs were seized from the applicant’s flat and sent for analysis, none of which was Zopiclone.

13.Professor Ricky Man Ying-yeung concluded that a time of death about 1 to 2 hours after ingestion of the Zopiclone was consistent with the post-mortem finding of such a high concentration in the blood.  It was inconsistent with the suggestion that the deceased had taken the tablets the night before, and was still alive at about 8 am because, if that had been the case, the expected concentration would by then have been much lower.

14.At 7.30 pm on 30 September 2003, the applicant was arrested.  He was interviewed on five occasions.  Throughout, he maintained his innocence.

15.In the 1^st interview, the applicant described a recent trip to Chaoshan in the mainland where he said that he had suffered injuries in a traffic accident.  He said he was alone on this trip.

16.The applicant went on to describe how he had spoken to the deceased for a while at around 7.30 am before leaving the flat at 8 am to go to the park to do his morning exercises.  Before he left, he told the deceased that he would telephone her and buy her breakfast.  He called the deceased at about 8.32 am but she did not answer.  When he returned home, he saw a towel between the gate and the wooden door which was apparently unusual as this was normally kept in the kitchen.  He looked into the bedroom where he saw the deceased lying in a “prone” position.  He called to her but she did not answer.  He also noticed that her clothing was in a state of disarray.  He described how he noticed that the deceased had white fluid coming out of her mouth.  He touched her hand and found no pulse and so he called 999 (recorded at 9.39 am) and told them “my wife is dead.  She had no breath or pulse.”  He then noticed that the three drawers in the living room wall unit were open and a drawer in the children’s room had been ransacked where he found that HK$6,000 was missing.  He then tidied the drawer because “that was his habit” and likewise he tidied the drawers in the living room.  These had been ransacked and he discovered that a gold necklace and a gold ring were missing.

17.In this context, it is pertinent to add that evidence was called to establish that there was no sign of any break-in at the applicant’s flat.

18.The applicant went on to speak about his background as an ambulanceman and that, notwithstanding this, he had not attempted to resuscitate the deceased as he had found her to be “cold”.  Later in the same interview, he added that the body was not “very stiff”.  He also gave specific details of the conversation he had allegedly engaged in with the deceased on the morning of her death.

19.At no stage in this interview did the applicant mention the fact that his wife had taken sleeping pills.

20.The 2^nd interview was conducted on 1 October 2003.  He described how he had from time to time visited the mainland with his male friends and in tour groups.  He was asked whether he had any particular mainland “friend” and said he had not.

21.Towards the end of the interview, and unprompted, he volunteered to tell the police about the normal routine for the disposal of rubbish by his family.  This was that whoever left the flat first in the morning would dispose of the bag of rubbish.  However, on 30 September 2003, as he was in a hurry to do his exercises, he had not disposed of the rubbish.  When he returned to the flat, he saw a bag of rubbish at the rear staircase which led him to suspect that his wife had been followed into the flat by her killer after she had taken out the rubbish.

22.By the time of the 3^rd interview on 2 October 2003, the applicant’s children had returned to the police station of their own volition and recounted a description to the police of the applicant providing tablets to the deceased the night before she died which, in turn, had made her dizzy.  In their interview with the applicant, the police probed this fresh information.  The applicant said that his wife had suffered pain in her arm for about two weeks and had attended Queen Mary Hospital a week before where she was given a painkiller and a drug for a “gastric problem”.  He said that he had not looked at the medicines but usually they would be kept in the cabinet in the kitchen.

23.Then, in the course of being asked about these drugs, the applicant suddenly volunteered (appeal bundle page 1051) that his wife had been in a “bad mood” recently and was unable to sleep, and so had started to take sleeping pills.  She had, he said, taken some on the evening of 29 September 2003.  He went on to say that at around 10.00 pm on 29 September 2003, while they were both in the kitchen, the deceased told him that she was going to take “as many as four pills”.  He did not actually see the medicine nor did he know where it was kept or enquire where she had obtained it.

24.The applicant went on to describe how, when waiting outside the Accident & Emergency ward, after he had been informed of the death of his wife, he called Leung Mei-lan, the insurance agent.  He said he had met her before and had her number in his telephone.

25.He admitted also calling a female friend, “Ke Xiying”, who was in the mainland to inform her of the death of his wife as he had been due to meet her that day.  Later, he said it was Ke Xiying who called him.  When asked, he admitted that they were not just “ordinary friends” and that they had had an intimate relationship for some time.  In this interview, the applicant admitted that he went with Ke Xiying on the trip to Chaoshan.

26.Finally, the applicant denied giving any tablets to his wife on the night of 29 September 2003 and concluded by saying that the deceased had a reaction to the pills shortly after taking them.

27.The 4^th and 5^th interviews are, for present purposes, not important.

28.Turning next to the evidence given by the applicant’s children, his daughter said that there had been nothing untoward which had taken place on the evening of 29 September 2003 but, at about 10 pm, when she was doing her homework in the living room she overheard a conversation between her parents who were in the kitchen which she described as follows:

“I heard my mummy say, ‘I have the pain in my hand forearm’ and then she was about to collect her own medicine to take it.  And then father said to her, ‘Your medicine is no use, take mine.’” (Appeal bundle p. 1296)

29.A little later, she heard her mother say: “why do I have to take four, so many” to which her father replied: “Yes, you’ve got to take four to be effective.”  Later, she heard her father say: “Did you take the four tablets?” and her mother replied: “Yes, I have.”

30.The applicant’s daughter went on to say (in a passage taken from the transcript of examination-in-chief at page 1297):

“A.    Yes, mum was sitting in the sofa watching TV, about half an hour later I heard mum say, ‘Wow, the medicine is strong, having taken them I now feel dizzy.’

Q.      Did your mother make any further comment after that?

A.      After 15 minutes more she said, ‘I really feel very dizzy, I really can’t take it any more, I’ve got to go to bed.’

Q.      Did she then go to bed?

A.      Yes.

Q.      By that you mean she went into her room.

A.      Yes.

Q.      And after a while did your father go into the room as well?

A.      Yes.” (Appeal bundle p. 1297)

31.The applicant’s daughter had not mentioned the tablets to the police when she had made a statement on 30 September 2003.  Asked why she had returned to the police station with her brother on 2 October 2003 to recount these matters, she said that, after discussing it with her brother, they had decided to tell the police what they had overheard.  In cross-examination, she rejected suggestions that she had misheard the conversation and was adamant about the accuracy of her recollection.

32.The evidence given by the applicant’s son was to similar effect.  In addition, he said that on the morning of 30 September 2003, he got up at about 6.30, pushed open the bedroom door and saw the deceased, apparently sleeping, with her face to the wall.  She had a blanket over her pulled up to the waist.  He, like his sister, rejected suggestions in cross-examination that he had misheard the conversation between his parents about the medicine his mother should take.  He also said that on the evening of 30 September 2003, when he was at the police station waiting to give a statement, the applicant telephoned a relative who had accompanied both children to the police station.  The applicant wanted to speak to his son who gave the following account of what the applicant had to say when the telephone was passed to him:

“‘Simply say that you don’t know if there is something that you don’t know.’  And he also told me not to disclose the fact that he had given four tablets for mummy to take to the police officer and that would harm to death literally, harm him to death, or put him in big troubles.” (Appeal bundle p. 1309)

33.The evidence concerning insurance was given by Leung Mei-lan (“Madam Leung”) who worked for a well-known insurance company.  In 1996, the deceased bought a policy, the beneficiary of which was the applicant.  Likewise, an insurance policy was bought by the applicant and the beneficiary was the deceased.  She was not contacted again by the applicant until 29 September 2003, the day before the murder, when he called her to make enquiries of some insurance matter.  As she was on maternity leave, she told him that she would contact him later.

34.At around 10 am, on 30 September 2003, the applicant called Madam Leung again and told her that the deceased had died.

35.Further evidence that the applicant was having an affair with a woman from the mainland was discovered when, on 7 October 2003, the deceased’s sister, Lau Shiu-ling, went to the deceased’s office to collect her belongings.  Later that evening, she discovered amongst the things she had collected a copy letter written by a person named “Ah Shing” to a person called “Sai Ying” (real name Ke Xiying).  She recognized the hand-writing as that of the applicant.  She passed the letter to her brother Lau Shiu-keung who passed it to the police.  The contents of the letter indicated that there had been an affair between the applicant and “Sai Ying” and the fact that it was in the possession of the deceased was an indication that she was aware of this relationship.  On 17 April 2004, Lau Shiu-ling and Mak Sau-kuen, the deceased’s adopted sister, came across the applicant, then on bail, who was with a female in Causeway Bay.  Police were informed and, as a result, they observed the applicant and a female returning to the applicant’s flat.  When police officers spoke to the applicant at the door of his flat, and asked if Ke Xiying was there, he answered that she was.

Grounds of appeal

36.In fourteen homemade grounds of appeal, the applicant raised a number of matters by way of complaint about the manner in which his trial was conducted.  He has to some extent supplemented his written grounds by oral submissions in court today.  Mr Haynes has responsibly indicated that he has not been able to advance any ground of appeal.

37.The 1^st of the homemade grounds suggested that the judge had wrongly permitted hearsay evidence to be adduced which was then reinforced in the summing up with the following words:

“Madam Mak Sau-kuen, who was the adopted elder sister of the deceased, gave evidence about the Times Square incident and also the fact that the deceased had confided in her that she was troubled about her husband in some respects.” (Appeal bundle p. 10)

38.This was a reference to the cross-examination of the deceased’s adopted sister by the applicant’s counsel and was in response to the question (appeal bundle page 1281):

“Did she [the deceased] say she suspected her husband of having an affair at any time?”

There was no dispute at trial that the applicant was having an affair or that the deceased was aware of it.  The relevance of the evidence went merely to the deceased’s state of mind, not towards establishing that the applicant was in fact involved with another woman.

39.In this regard, also, the applicant suggested that this evidence may have led the jury to think that, because of problems between himself and his wife, he had a motive to kill his wife.  As to motive, however, the judge was careful to direct the jury in the following terms:

“As you have been told, there is no need to prove motive in this case.  The question of the girlfriend and the insurance are, to a certain extent, irrelevant in that regard although the prosecution has put them before you.  You do not have to be satisfied about the motive.  You do have to be satisfied about who did the killing.” (Appeal bundle p. 5)

40.The 2^nd ground amounted to a criticism of the quality of the evidence given by the applicant’s children.  The judge, however, was mindful of the challenges made about their reliability and she reminded the jury about this important aspect of the case in the following terms:

“… The direct challenge by the defence in this case has come to the son’s and daughter’s evidence, in particular, as to what they overheard on the night in question.  Pay attention to inconsistencies or contradictions.  There might have been contradictions between the evidence a witness gave in-chief and what the witness said in cross-examination or re-examination.  If you find that there are inconsistencies or inaccuracies in a witness’s evidence, try and see what might explain them.  Is the witness forgetful, perhaps, because of lapse of time?  Is the witness genuinely mistaken?  Is the witness lying?  Or is it because of the difficult circumstances under which the witness saw events?” (Appeal bundle p. 15)

Then, before turning to the children’s evidence in detail, the judge said:

“I will deal with the evidence of the children because that is the most important evidence you have to consider.  It is particularly relevant to the time and the manner of death.” (Appeal bundle p. 18)

41.The judge dealt with the matters which had been raised in cross-examination, with particular reference to whether the children may have misheard what their parents had said, and the jury were reminded about the evidence concerning the volume of the television which was on in the living room where the children were doing their homework.  Nothing of any materiality was omitted and this topic was covered with the utmost fairness.

42.In the context of this ground, the applicant seems to have implied that there was some form of collusion between his children.  However, there was no suggestion of either of them bearing any grudge towards the applicant at trial.  Indeed, they were cross-examined on the basis that they were mistaken as to what they had heard.

43.The 3^rd ground amounted to an attack on the credibility of the applicant’s son in relation to the telephone conversation in which he was allegedly told not to mention to the police that the applicant had given the deceased some medicine.  This was, however, a matter which was fully ventilated in court including the matters raised by the applicant today concerned with his son failing to inform his aunt, who was with him at the time, about the call he had just received.

44.The 4^th ground of appeal related to the evidence given by the ambulanceman who attended the flat and made an attempt at resuscitation.

45.The applicant’s point was that, based upon the ambulanceman’s evidence, there were grounds for concluding that the deceased may not have been dead for as long as the prosecution had alleged.  Leaving aside the applicant’s own explanation to the police as to his reasons for making no attempt to resuscitate the deceased, the evidence given by the pathologist about the time of death, including the fact that rigor mortis takes about twelve hours to complete and the corroborative evidence given by the toxicologist, excluded any possibility that the deceased was killed while the applicant was absent from his flat between 8.00 and 9.30 am.  Indeed, at trial the ambulanceman was rightly never called upon to make any comment about the time of death.

46.A similar point was made by the applicant in his 5^th ground of appeal in which he argued that the doctor at the hospital who examined the deceased did not “notice” stiffness in the body.

47.This was a matter which the judge dealt with during the summing up when she reminded the jury about Dr Lu’s evidence, saying:

“… I would just like to remind you that in his evidence in court, he said that he had not noted any rigor mortis at the time.  He had said in his statement that no limb stiffness was ‘noticed’.  He corrected that and said that it should be ‘noted’.  So it is not clear as to whether or not there was any limb stiffness at the time or not, in his evidence.” (Appeal bundle p. 30)

48.The judge continued by reminding the jury of the pathologist’s evidence in these terms:

“I would also point out that Dr Tso told us that rigor can be broken by movement of the body and by the time the body got to Dr Yu, it had been moved several times, both by the defendant, according to his evidence, who had turned the body over on instructions from the fire officer, then it was taken out and put in the ambulance, and then it was taken out and taken into the hospital.  So the body had been moved several times by the time Dr Lu actually certified death.  So any comments that he has about rigor mortis are possibly not very reliable in that regard and, as Dr Tso pointed out, Dr Lu is not an expert with great experience of rigor mortis.” (Appeal bundle p. 30)

49.Grounds 6 and 7 were criticisms of the pathologist’s inability to formulate a time of death with any accuracy and contained the added suggestion that his evidence was inconsistent with evidence given by the toxicologist.

50.We have already dealt with the reason why the pathologist amended his estimated time of death.  There was nothing in the toxicologist’s evidence which was at odds with the pathologist’s opinion and his evidence was summarized in the following way:

“He confirmed that no alcohol or other drugs or poisons were detected in the blood or urine, according to the report and so that it was possible to conclude that the deceased was not under the influence of any other drug other than Zopiclone.  He said that two tablets would be the maximum dosage so he considered that four would be a rather high amount.  Later, when I asked him a question about that, he said it was not enough in itself to kill somebody, but it was definitely an excessive dose in terms of the therapeutic use of Zopiclone.

He confirmed also that this was not a drug that would normally be used as a painkiller, so it would not be used in the ordinary course of events for dealing with the effects of tennis elbow.  He also confirmed that if someone took the drug and absorbed it and then died soon afterwards, they would have a very high concentration and he considered that that was consistent with the blood levels being detected in the autopsy in this particular case.” (Appeal bundle pp. 27-28)

51.The 8^th ground was a criticism of the prosecution for not having submitted a DNA report to enable the jury “to get a clear picture of the facts”.  It goes almost without saying that if the report had contained anything of relevance to the defence case, the applicant’s legal representatives were at liberty to have used it.  Apparently they chose not to do so.

52.The 9^th ground contained a number of complaints about the accuracy of the judge’s summing up of the facts.  One of these was a suggestion that the judge had said with reference to the applicant’s evidence: “We had financial difficulties.”  However, at the outset of her summing up, in a most helpful and accurate synopsis of the case as a whole, the judge said, amongst other things:

“Over the last few weeks, you have been listening to the story of a marriage – a marriage that lasted for some 20 years – and ended on 30 September with the death of Madam Lau.  During that marriage two children were born.  The husband originally worked as a soldier; he worked as a security guard; and, since 1988, worked as an ambulanceman.

The family was a functioning family.  There was no major problems that they suffered; no financial problems.  They were home-owners; the children were healthy; there were no problems with in-laws – good relationships.

Sometime in 2002, the defendant met a girl in a massage parlour in China.  He continued to meet that girl for massage initially and then for sexual purposes.  He then fell in love with her and marriage was discussed, but he was upset by the fact that she enjoyed money so much, or wanted money so much and he attempted to break up with her in November 2002.

The relationship continued; family life continued.  The wife was pursuing the study of Buddhism around this period.  She learned of the affair but said nothing about it, although she had made hints to her adopted sister about a possible problem with her husband.

At some point, the defendant increased the insurance and added his wife to a policy.  The sums that were secured in this manner were US$90,000 and HK$500,000.  Not huge sums, but substantial sums.” (Appeal bundle p. 1)

There was no suggestion in the background which the judge had set out, up to this point or after it, that there were any financial problems.  This ground appears to be based upon what is quite obviously a typographical error at page 46 of the transcript where the judge was summarizing the applicant’s evidence.  This reads: “They have got financial problems.”  The audio recording of the summing up indicates that in fact the judge said: “They have got no financial problems.”  The applicant accepted in the course of these proceedings that this was in fact so.

53.The 10^th ground made reference to a passage in the summing up where the judge was dealing with the applicant’s evidence about how an insurance policy on his wife’s life had come about.  The judge said:

“… He talked about the insurance policy and the fact that the Hang Seng policy had been effectively forced on him by the staff, both at the tele-sales level and also when he went to make the change, by Miss Lau Ming-ming who suggested that he took out a policy for his wife as well.  He said that ‘she repeatedly persuaded me’.  He appears to be rather surprised that the insurance salesmen were pushing him for a sale, but that is what insurance salesmen do.  So that is not a matter where he is going to be overpowered by their rhetoric or their persuasion.  But he says he eventually agreed to put his wife on the policy as well.” (Appeal bundle p. 47)

The applicant’s complaint was that nowhere in this passage did the judge refer to the applicant’s evidence that he had telephoned his wife to ask her for consent to do this.  Whilst this is perfectly true, the essence of what it was the jury were being reminded about was that it was not the applicant’s idea to take out a policy on his wife’s life.  This came from the salesman on behalf of the insurance company.

54.The 11^th ground related to a letter dated 28 September 2003 which the deceased wrote to her ‘spiritual master’ in which she set out her troubles.  The applicant submitted that its terms were “adequate proof” that the deceased would have “had to take sleeping pills because of the insomnia so caused” and the jury should have been directed accordingly.  However, the translation of the letter with which we have been supplied makes no suggestion that the deceased suffered from insomnia.

55.In ground 12, the applicant commented that as the judge told the jury that the prosecution were under no duty to prove a motive, there was no reason for her to have mentioned the issues of “woman and insurance” at all as these directions were “perilous” to him.  The prosecution were, of course, fully entitled to prove a motive for the killing if they were in a position to do so and no unfairness was caused by the introduction of this evidence.

56.The 13^th ground amounted to a complaint that the prosecution had failed to disclose all the material in its possession in relation to the forensic evidence.  We are assured by Mr Saw in his written submissions that all relevant unused material was disclosed to the applicant’s representatives before the commencement of the trial and we accept that assurance.

57.The last ground of appeal related to a witness who provided evidence at trial of little relevance and, seemingly, he also failed to come up to proof.  Unsurprisingly, the judge made no reference to his evidence.  The applicant now asserts that the police may in some way, in regard to this witness, have been involved in perverting the course of justice.  No such suggestion has been made before and there is absolutely no basis for it to have been made at this stage.

Conclusion

58.The application is without merit and is dismissed.

Mr D G Saw, SC, DDPP, and Ms Mickey Fung, GC, of the Department of Justice, for the Respondent.

Mr John Haynes, instructed by Messrs Yip, Tse and Tang, assigned by Director of Legal Aid, for the Applicant.