Yuen Miu Fun v. HKSAR

FAMC No. 65 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 65 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 279 OF 2010)

_____________________

Between:

_____________________

_________________________

DETERMINATION

_________________________

Mr Justice Ribeiro PJ:

1.We dismissed this application for leave to appeal with reasons to be provided later.  These are our reasons.

2.The applicant was convicted[1] of the murder of Ms Angie Ip Sau-fun and her appeal against conviction was dismissed by the Court of Appeal.[2] Leave to appeal was also refused.[3]  Leave to appeal was sought from the Appeal Committee on the basis that the following question of law of great and general importance arises:

“Where a defendant is charged with murder on the basis of being a non-principal in a joint enterprise, and is tried alone, is the trial judge required to leave as a distinct issue for the jury (when the issue is not formally admitted) whether as a matter of fact and law that one of the other parties named in the particulars had committed the murder as a principal?”

3.The prosecution’s case was that the deceased had had a dispute with a man named Pao who lived on the mainland, and that Pao sent two men, Huang and Yue, to Hong Kong to kill the deceased.  The primary case against the applicant was that she had, pursuant to a prior agreement, actively helped them to carry out that criminal enterprise.  The charge, as particularised was that she “together with Huang and Yue, murdered the deceased on 19 June 2007”.

4.The applicant did not give evidence but had made several video-recorded statements to the police.  At trial, those statements, which contained incriminatory admissions, were placed before the jury who were properly directed in relation to the applicant’s claim that they were involuntary and inadmissible.  Most of the prosecution’s evidence as to her actual involvement in the killing of the deceased was in fact undisputed.

5.Huang and Yue arrived in Hong Kong carrying a large suitcase and the applicant arranged accommodation for them, checking them in at a guest house.  She made an appointment to meet the deceased at the beauty salon owned by the latter; then on Huang’s instructions, she got the deceased to imbibe a drink laced with a sedative while Huang and Yue waited nearby with the suitcase; she informed them when the deceased had lost consciousness; and was present when they came into the beauty salon wearing gloves and placed a bag over the deceased’s head and strangled her with a length of electrical cord wound around her throat.  Huang and Yue then placed the deceased’s body in the suitcase and got the applicant to go downstairs to hail a taxi into whose boot the suitcase was placed.  She told the taxi driver to take them to Stanley, where they alighted and where, in a secluded spot, she watched the men throw the suitcase into a water culvert. She then discarded a telephone SIM card that she had bought and used in communications with the men; she showed the men to a public toilet where they changed their clothes; she then disposed of the clothes they had been wearing; and she discarded her own clothes and shoes, buying replacements with money taken from the deceased’s handbag.

6.The defence, as put in cross-examination and as suggested in her police statements was that:

“...she did not intend or expect that the deceased would be killed or seriously injured and that her role was to administer on the deceased a laced drink which contained a ‘truth drug’ so that she would tell the truth as to the whereabouts of the money/property owed to Pao.”[4]

7.An aspect of that defence was that:

“...when the deceased body was bundled into the large suitcase, the applicant believed that she was still alive and that she would be taken away to a location where she would be interrogated under the influence of the drug.”[5]

8.The trial Judge directed the jury fully and fairly as to her defence.  As noted above, the primary prosecution case was that the applicant was from the outset an active player in a joint enterprise to murder the deceased.  The Judge also directed the jury that it would in law also constitute murder if they found it proved that while she had not been party to a prior agreement to murder the deceased, in the course of carrying out the joint enterprise with Huang and Yue, she had realized that there was a real risk that they might use force against the deceased with intent to kill her or to cause her grievous bodily harm and yet continued to render them assistance.

9.It is in this context that Mr McCoy SC submitted that a question of the necessary importance arises as to whether there was a fatal misdirection in that the Judge did not “leave as a distinct issue for the jury ... whether as a matter of fact and law ... one of the other parties named in the particulars (that is, Huang and Yue) had committed the murder as a principal”.  He cited in support R v A [2011] QB 841 where the English Court of Appeal points out that since guilt based on joint enterprise is a form of secondary liability, it is necessary to prove that somebody, whether identified or not, had committed murder as principal.

10.That is undoubtedly a sound principle of law. However, in R v A, there was a fatal attack by three men upon the deceased without any lethal weapons being used where “it was not possible to identify individual acts of violence or to say who had done precisely what”.[6]  As Hughes LJ pointed out:

“In many instances of common enterprise murder there will be no doubt about there having been murder by someone. As we have said, many of the reported cases concern the use by D1 (whether identified or not) of a knife to stab or a gun to shoot. In such cases there is little doubt that D1 committed murder in stabbing or shooting, for such acts carry by themselves the almost inevitable intention to kill or to cause grievous bodily harm. But it is not quite so clear where there is no lethal weapon and the common purpose is to administer a beating. If death ensues, that may well justify the conclusion that someone at least acted with the necessary murderous intent, viz to kill or to do grievous bodily harm, but it does not necessarily do so. The issue may in some cases be a live one. ...”[7]

11.His Lordship went on to say that in the case at hand:

“We accept that the issue was a live one in the present case. It was not common ground that murder had been committed by anyone.”[8]

12.In our view, the Court of Appeal was fully justified in concluding that the issue was not a live one in the present case.  As Yeung VP noted (giving the judgment of the Court):

“The applicant did not dispute and in fact accepted that the deceased had been murdered, but claimed not to be a party to the murder. It was suggested that the action of Huang and Yue was outside what they had agreed with the applicant.”[9]

13.Mr McCoy’s point might have force in a different case where, for instance, a fatal injury is inflicted in a gang fight but it is unclear who did the act or with what mental state.  In the present case, as Yeung VP points out:

“When someone puts a bag around victim’s head and strangles her neck with a wire before putting the body into a suitcase, it is simply not open to any suggestion that there is no intent to kill or to cause serious bodily harm to the victim.”[10]

14.The whole point of the applicant’s defence was that she had been surprised and shocked by the murderous conduct of Huang and Yue.  Her case was not that no murder had been proved, but that the two men had committed murder and thereby exceeded their joint enterprise, which was merely to administer a “truth drug” to the deceased to make her reveal the whereabouts of the money that Pao wished to recover.  As Yeung VP stated:

“There could be no dispute that Huang and Yue had murdered the deceased. The applicant never disputed that, but only claimed not to be a party to the murder. In his address to the jury, Mr Donald[11] kept reminding the jury of the important issue, namely: ‘Did the defendant know that the deceased was going to be killed?’, ‘Can you be sure the defendant knew that the two men from the Mainland were going to kill (the deceased)?’ The judge’s approach was clearly consistent with the defence case.”[12]

15.His Lordship went on to say[13] that it would have been better if the Judge had told the jury in terms that they had first to be sure that Huang and Yue were themselves guilty of murder but rightly concluded that there was no misdirection “as it was not a matter in issue and it was clearly implicit in the Judge’s overall directions”.

16.The Judge fairly put the defence case to the jury.  They rejected it and found the prosecution case proved beyond reasonable doubt, as they were fully entitled to do.  The applicant had told the police that “she had asked Huang and Yue what would happen if the deceased refused to confess, the reply was that they would ‘do her in’, and ‘beat her to death’.”[14] Knowing this from the start, her participation in the joint enterprise with Huang and Yue described above amply justifies the Court of Appeal’s view that “the evidence supporting the prosecution case that the applicant was a party to the joint enterprise to murder the deceased was overwhelming.”[15]

17.We accordingly did not consider the case reasonably arguable and refused leave to appeal.

Mr Gerard McCoy SC, instructed by W.K. To & Co. and assigned by the Legal Aid Department, for the Applicant

Mr David Leung, DDPP (Ag) of the Department of Justice, for the Respondent