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Hksar v Wan Kim Chung

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date15 May 2013
Year2013
Judgement NumberCACC185/2012
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC185/2012 HKSAR v. WAN KIM CHUNG CACC185/2012 HKSAR v. WAN KIM CHUNG CACC185/2012 HKSAR v. WAN KIM CHUNG

CAC C 185/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 185 OF 2012

(ON APPEAL FROM HCCC NO. 351 OF 2011)

_______________________

BETWEEN

HKSAR Respondent
AND
WAN KIM CHUNG (温劍聰) Applicant

_______________________

Before: Hon Yeung VP, Barnes and McWalters JJ in Court
Dates of Hearing: 25 April 2013
Date of Judgment: 25 April 2013
Date of Handing Down Reasons for Judgment: 15 May 2013

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Yeung VP and McWalters J (giving the Reasons for Judgment of the Court):

Introduction

1. The applicant (Wan Kim-chung) was convicted after trial before Macrae J sitting with a jury of murdering Yu Wai-yuk (the deceased) on 27 October 2010. Represented by Mr Gerard McCoy SC, the applicant sought leave to appeal against conviction. At the end of the hearing on 25 April 2013, we dismissed the application and indicated that we would hand down our reasons in due course. These are the reasons.

The Facts

2. The body of the 25 years’ old deceased, partially clothed in a bra and a grey T-shirt with the lower part of her body naked, was recovered from the sea off Hong Kong Island shortly before 8.30 a.m. on 27 October 2010. The cause of death was drowning although there were clear signs that she had been strangled before she was drowned.

3. The applicant, a taxi-driver, was arrested on 1 November 2010 for murdering the deceased. In subsequent video-recorded interviews, the applicant detailed his relationship with the deceased and the circumstances leading to her death.

4. The applicant said that having known the deceased, he had contact with her by telephone calls and text messages. He said he lent the deceased $10,000 and they started to have sex, once a week on average.

5. The applicant said that after collecting the deceased in his taxi from her place of work in the evening of 26 October 2010, he drove her to a secluded spot near Tai Hang Hau Village in the New Territories with a view to having sex. They did not do so as a private car appeared nearby.

6. They chatted and the applicant said the deceased demanded money from him and at the same time wanted to cease their relationship. They had an argument and the applicant thought that the deceased was taking advantage of him financially. In the course of the argument, they used their hands to hit each other and the deceased used her elbow to hit the applicant’s private parts.

7. The applicant said he felt painful and used his hands to strangle the deceased until she became unconscious. The applicant placed the body of the deceased in the boot of his taxi and threw her jeans, underpants and shoes into the surrounding undergrowth. The applicant then drove his taxi, with the deceased in the boot, to Lee Nam Road in Ap Lei Chau where he took the deceased from the boot to the edge of the pier and threw her body into the sea.

8. The applicant appeared to have suggested that when he threw the deceased into the sea, he thought that the deceased had just fainted or was unconscious.

9. The applicant, in a subsequent reconstruction exercise, led the police to recover items of the deceased’s clothing. He suggested in the course of the reconstruction exercise that when he dumped the deceased body into the sea, he thought that she was already dead.

10. The pathologist put the time of the deceased’s death at between four to five hours before midday on 27 October 2010.

The Prosecution Case

11. It was the prosecution’s primary position that the applicant strangled the deceased, with the intention of killing her, to the point of unconsciousness and then threw her into the sea, knowing that she was still alive in order to conceal what he had earlier done to her.

12. The prosecution’s secondary position was that the applicant had unlawfully strangled the deceased with the intention to kill her or to cause her serious bodily harm. However the strangling did not kill the deceased although the applicant had mistakenly thought that she had been killed. He then decided to dispose of the body of the deceased by throwing it into the sea, which was what in fact killed her.

13. Under its secondary position, the prosecution contended that the actions of the applicant i.e. the strangling of the deceased and the throwing of her body into the sea were parts of the same transaction or sequence of events which culminated in her death and consequently the applicant was still guilty of murder.

The Defence Case

14. The applicant did not deny killing the deceased. He said he killed her under provocation and should therefore be guilty only of manslaughter.

15. It was also suggested that when he strangled the deceased with the intention to kill her or cause her grievous bodily harm, he did not in fact kill her and when he threw her into the sea he had no intention to kill or cause her grievous bodily harm as he thought she was already dead. In the circumstances, the applicant was not guilty of murder but should only be guilty of attempted murder for strangling her or of manslaughter for throwing her into the sea which killed her.

16. The applicant gave evidence and described how he ended up throwing the deceased’s body into the sea. The applicant’s case was that he had had a relationship with the deceased, but she did not love him and was only taking advantage of him for financial gain.

17. According to the applicant, he first met the deceased in November 2009 when she boarded his taxi and sat in the front passenger seat and they exchanged telephone numbers.

18. Thereafter, the deceased telephoned him so that he could pick her up to and from work and they started to communicate with each other regularly. In February 2010, they met for dinner when the applicant conveyed to her that he had feelings for her. The applicant would daily give the deceased a lift to and from work and they became boyfriend and girlfriend. They would have meals or tea, go shopping or go to the cinema together and would sometimes hold hands.

19. The applicant subsequently learned that the deceased had a German boyfriend and when he confronted her, she told him that her boyfriend would be going to Beijing for business. The applicant continued with his relationship with the deceased although the deceased tried to avoid giving others the impression that she was his girlfriend. Her excuse was that she did not want others to know that she was carrying on relationships with two boyfriends at the same time.

20. The applicant said that he had given the deceased money and had incurred expenses for her, and in July 2010, the deceased asked him for $10,000 to buy some electrical appliances. The applicant said he had to borrow money to meet the deceased’s demand, but nothing was mentioned about the repayment. The applicant said it was on the day when he agreed to give her the money that they first had sex and on the day when he deposited money into her bank account, they had sex again. Since then, they had sex regularly.

21. However the applicant was unable to contact the deceased subsequently and he later learned from her friend (Ah Chu) that the deceased had gone to Beijing. The applicant believed that the deceased must have used the money obtained from him to travel to Beijing.

22. On a day in October 2010, the deceased again asked the applicant for $8,000, but he only deposited $300 into her account. According to the applicant, he learned on 23 October 2010 from Ah Chu that the deceased had been living with her German boyfriend and he was very angry.

23. The applicant then described the events on 26 October 2010. He said they went to the usual spot in Sai Kung where they would have sex. When they were in the acts of intimacy, there were lights from another vehicle and they stopped. They then talked about the problems in their relationship. The deceased told the applicant that her boyfriend would be returning from Beijing in a few days’ time and she wanted to stop their relationship.

24. She then asked him for money and the applicant refused and there was bodily contact when she elbowed him in the groin and it was painful. The applicant said he was angry and unhappy that she should want to terminate the relationship. He felt that the deceased did not really love him, but was only taking advantage of him financially. He said he had tried to put a stop to the relationship in the past but she would call him back after a period of time. The applicant also said that the deceased teased him, saying that he was not as good as other people and not as good as her boyfriend as he did not have a good income and was only able to give her a few hundred dollars.

25. The applicant said he “burst out” and became very angry. He grabbed her neck with both hands as he had lost control. According to the applicant, the deceased initially fought back, hitting him on the chest with her hands, but after a short period, she did not move. The applicant released his hands and she was unconscious, leaning against the window with no response. The applicant said he was unsure if she was still breathing and he found both her mouth and face swollen and her face bruised and black. The applicant said he thought the deceased was already dead when he kept calling her name but there was no response.

26. After a time, the applicant put the deceased into the boot of his taxi before dumping her trousers and underpants as well as her shoes in the bushes. He then drove his taxi, pondering how her body should be disposed of. He thought of dumping the dead body into the sea so that it would not be easily discovered. He then drove to Ap Lei...

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