WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.— (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PATRICK WAI LEUNG LEE

Before: Justice F. Crewe

Heard on: April 27, 28, 29, 30, May 14, 2015

Reasons released: June 25, 2015

Counsel:

• D. Kellway & K. Crosbie for the Crown
• D. Brodsky for the accused Patrick Wai Leung Lee

CREWE J.:

A. OVERVIEW

[1] Mr. Lee is charged with first degree murder. At the outset of his preliminary inquiry, counsel conceded committal to trial on second degree murder, the only issue being the sufficiency of evidence to commit on first degree.

[2] Mr. Lee provided two separate inculpatory statements to the police, the first of which was audio-recorded while the accused was in hospital, the second video-recorded at the police division the following day. A voir dire was commenced into the voluntariness of both statements, however defence counsel ultimately elected not to oppose their admission.

[3] The Crown posits two separate paths to committal on first degree murder: (i) planning and deliberation; and (ii) constructive (first degree) murder committed during forcible confinement pursuant to section 231(5)(e) of the Criminal Code. Those are the issues addressed in these reasons.

B. EVIDENCE

Postmortem Examination

[4] The victim, To-Nu (Sandy) HUA, 64 years of age, was killed in her home on the 17th floor at 80 Alton Towers Circle in the City of Toronto on Boxing Day, December 26, 2013. Late that evening, the victim's son became concerned when he could not reach his mother by telephone. He and his wife attended at her apartment at approximately 11:30 PM, and were greeted by a horrific scene. His mother's lifeless body lay on the living room floor in a pool of blood. She was partially clad, her face and head bloodied by repeated blows from a meat cleaver, her right leg amputated at the knee. Abandoned efforts had also been made to sever her right arm at the armpit. The severed portion of her right leg and foot were in a white plastic bag beside her body.

[5] The attending pathologist, Dr. M. Pickup, noted approximately 17 chop wounds to the scalp and face of the deceased. These wounds ranged in size from a 1 cm laceration to the nasal bridge to an 11 cm chop wound to the left frontal scalp. In Dr. Pickup's view, the type of implement which could have caused these injuries would have a sharp edge and some weight, such as a heavy knife, a cleaver, or an axe. A hammer would not have caused the injuries. A metal handled meat cleaver was found at the scene.

[6] In addition to the chop wounds to the head and face, Dr. Pickup also noted numerous defensive type injuries to both hands of the deceased.

[7] He also noted signs of chest compression, notably extensive bilateral conjunctival petechial hemorrhage (hemorrhaging of both eyes), as well as anterior and lateral rib fractures. Dr. Pickup's opinion is that these symptoms are evidence of a broad compressive force, such as sitting or kneeling, having been applied to the chest or back of the deceased. (It is upon this evidence which the Crown relies for committal pursuant to section 231(5)(e) of the Code.)

[8] Dr. Pickup noted evidence of dismemberment. In addition to the removal of the right leg at the knee, he noted a 21.5 cm chop wound to the right armpit of the deceased, which in his view appeared to be an aborted attempt at removal of the right arm. Both the severing of the leg and the attempt to remove the right arm were performed post mortem, in his view.

[9] The cause of death opined by Dr. Pickup was multiple injuries, including the multiple chop wounds and associated blunt injuries to the head, in addition to the possible contribution of the chest compression which could have led to terminal asphyxia. Blood loss alone may have led to death, or asphyxia alone, or a combination of both. Dr. Pickup was unable to say whether one or the other was more likely to have itself caused death.

Other Evidence

[10] The evidentiary trail led the police to suspect Mr. Lee within days, and he was arrested and charged with second degree murder (later with first degree) by Detective Karen Chapman on December 29, 2013 at the Scarborough General Hospital, where he had been hospitalized after an apparent suicide attempt.

[11] Considerable other evidence was led over the course of the preliminary inquiry, however, since committal is conceded, I propose to summarize here only that evidence offered in support of committal on first degree murder.

(i) Evidence of Alleged Concealment of Identity

[12] Numerous security cameras are found in the lobby, elevators and hallways of the apartment Complex at 80 Alton Towers Circle, as well as outside in the parking areas and in the tenant underground parking garage.

[13] Video evidence shows Ms. Hua (Sandy) walking to her car in the underground on December 26 at 10:56 a.m., and returning at 3:53 p.m. When she exits her car, she is carrying what appears to be a cake. She is seen to enter the elevator and exit at the 17th floor, where her apartment is located, just before 4 p.m.

[14] Mr. Lee is seen in the visitor parking area at 4:54 p.m. He is wearing a black bomber jacket with the hood up. His hands are in his coat pockets. He is wearing blue jeans and black sneakers.

[15] As he nears the front lobby, the door is held open for him by someone who had just entered. Inside the lobby, his hand can be seen adjusting his hood, pulling it forward. He reaches again for the hood as he approaches the elevator. He appears to be looking somewhat downward, with the result his face is not visible to the camera.

[16] Once in the elevator, Mr. Lee pushes the button for the 6th floor. He then moves into the corner where the camera is located, and is mostly out of view beneath it. He exits the elevator on the 6th floor, the hood of his jacket still up.

[17] Around 10:30 p.m., Mr. Lee re-enters the elevator at the 6th floor with the hood of his jacket still up, his face not visible to the camera. Aside from the black bomber jacket, his clothes are different from those he wore upon arrival. He is wearing grey track pants and open toed slippers, clothing which belonged to the deceased. (He disposed of his own clothes, which were soaked in blood.) Mr. Lee is seen to be carrying a number of white plastic bags which appear to be full. As he exits the elevator and then the lobby, his hood remains up and his face shielded from view.

(ii) Evidence of Motive

[18] Mr. Lee, in his statement(s) to the police, indicated that he was indebted to Ms. Hua for a substantial sum of money. She had provided him with $27,000.00 approximately three months earlier to invest in stocks for her. He had promised her a quick and substantial return. She asked him over on Boxing Day to inform her on the status of her investment. When he advised her, at her apartment, that the money had been lost, she threatened to sue him unless he gave her back the money. He asked her not to do that. She also threatened to tell his wife about the debt and ask her for the money. He was afraid that if his wife found out he had lost the money she would kick him out. He had lost the money gambling at Casino Rama.

[19] He told police that when he tried to leave the apartment, Ms. Hua grabbed him and wouldn't let him go. He panicked and hit her (many times) with a hammer that was within reach.

[20] When the police searched Mr. Lee's residence, they found, inter alia, a discarded, torn up personal cheque, signed by Mr. Lee in favour of Ms. Hua, post-dated for January 1, 2014, in the amount of $50,000.00.

(iii) Post-Offence Conduct

[21] In addition to the attempts at dismemberment of the deceased, the Crown led evidence of other post-offence conduct by the accused.

[22] The Crown alleges that Mr. Lee searched the apartment of the deceased and removed personal papers that he could find evidencing his indebtedness to Ms. Hua, including the above-noted cheque for $50,000.00.

[23] As noted above, Mr. Lee was arrested while recovering at hospital from what the Crown alleges was a suicide attempt. He had rented a motel room and set light to a charcoal barbeque inside the room, with the door and windows closed, after writing what appeared to be a suicide note.

[24] Mr. Lee gave two statements to the police, one while still in hospital upon his arrest, the second the next day at the police station. Both statements contain lies, says the Crown, including, inter alia, the manner of the assault (he told police it was with a hammer); the means of disposal of his bloodied clothing; his method of entry into the apartment building; (he told police he rang her apartment from the lobby and she buzzed him in); and his characterization of what happened in the motel room as an accident, rather than an attempted suicide.

C. POSITIONS OF THE PARTIES

(a) The Position of the Crown

(i) Planning and Deliberation

Motive

[25] The Crown alleges strong evidence of motive. Mr. Lee acknowledges having received at least $27,000 from the deceased, and in his statement, concedes having misappropriated those funds from their intended purpose, which was to invest them at a high rate of return for the deceased. Mr. Lee gambled the money away.

[26] Mr. Lee's actions placed him in great jeopardy. In pure financial terms, the Crown submits, Mr. Lee was in no position to repay the money. He was not working, and had no access to funds. There was therefore intense financial pressure.

[27] Ms. Hua had threatened to sue him civilly, according to his statement, and this caused him great concern.

[28] Furthermore, on the strength of Mr. Lee's statement, he had misappropriated a large amount of money, and was therefore liable for potential criminal consequences.

[29] Finally, Ms. Hua had threatened to approach Mr. Lee's wife, tell her what had happened, and seek payment of the funds from her. Mr. Lee feared that if that were to happen, his wife would kick him out and he would suffer great embarrassment within the community.

Concealment of Identity

[30] The Crown submits that the video evidence detailed above cumulatively affords a strong inference that Mr. Lee knew where the security cameras were located and clearly did not want to have his face captured by them. There is a marked effort, from the time of his arrival to the time of his departure several hours later, to shield his face from the view of the camera(s).

[31] Of great significance, submits the Crown, is the fact Mr. Lee exited the elevator and re-entered it from the 6th floor, 11 floors below that of Ms. Hua's apartment. Together with his efforts to keep his face hidden from view, he attempted to distance himself from the vicinity of Ms. Hua's apartment.

[32] Crown Counsel submits further that these actions make no sense in the context of Mr. Lee's stated reason for attending at Ms. Hua's apartment, namely, to discuss a payment plan for repayment of his debt. In other words, on any plan which involved leaving Ms. Hua alive, the elaborate efforts to conceal his identity would accomplish little, since she would be able to place him in her home if the need arose.

Post-Offence Conduct

[33] The Crown submits that notwithstanding the authorities which caution courts against reliance upon post-offence conduct to support guilt in situations where there is already a concession of wrongful conduct, albeit at a lesser level than that alleged, such evidence can nevertheless be used to analyze earlier conduct. For example, the attempts at dismemberment, when examined through the lens of the earlier attempts at concealment of identity, provide positive evidence of a plan to murder the deceased.

[34] Similarly, the Crown submits, the statement(s) of Mr. Lee contain lies that would assist the jury in putting into context his earlier actions in killing Ms. Hua, for instance, his lies as to the manner of gaining entry into the building, and his characterization of the events at his motel room as an accident instead of an attempted suicide.

(ii) Constructive First Degree Murder

[35] The Crown submits that Dr. Pickup's evidence of injuries consistent with (Mr. Lee) having sat or knelt upon the body of Ms. Hua while still alive is evidence that could support a finding of forcible confinement, separate and apart from the acts which caused her death, in the event the jury were to find that her death was caused exclusively by the chopping-type blows described by Dr. Pickup. In turn, forcible confinement supports committal to trial for first degree murder in accordance with section 231(5)(e) of the Criminal Code.

(b) Position of the Defence

(i) Planning and Deliberation

[36] Mr. Brodsky submits that there is no evidence upon which a jury would be entitled to infer that the act of killing Ms. Hua was other than impulsive, as reported in his statements to the police, and that there is no evidence of deliberation.

[37] Further, Counsel submits, there is no evidence upon which a jury could properly conclude the murder was planned.

[38] Mr. Brodsky submits that the video evidence of concealment of Mr. Lee's identity does not rise above the level of speculation. His entry into an apartment building, on a cold winter's day with his hood up, affords no evidence of an attempt at concealment. In his submission, no inference could be drawn from that evidence that at the time Mr. Lee entered the building, he had planned to kill Ms. Hua.

[39] Further, Counsel submits that the post-offense conduct is of no assistance in elevating this homicide from the level of 2nd degree to 1st degree murder. To that end, Mr. Brodsky takes the position that Mr. Lee's re-entry onto the elevator at 10:30 p.m., his face shielded from view by his hood, occurred after his having killed Ms. Hua. Therefore, the jury is not entitled to draw any connection between his manner of dress and the floor at which he entered the elevator with similar evidence upon his entry to the building prior to the killing.

(ii) Constructive 1st Degree Murder

[40] It is the position of the defence that the prosecution has offered no evidence upon which an inference could reasonably be drawn that Mr. Lee intentionally caused the death of Ms. Hua while committing or taking steps to commit the offence of forcible confinement. In other words, no properly instructed jury could find that but for the underlying offense of forcible confinement, the murder of Ms. Hua would not have happened. Accordingly, it is the position of Mr. Lee that, at its highest, the evidence presented at the preliminary inquiry establishes no more than a murder which occurred during the commission of an aggravated assault. Anything else, he submits, would be speculation and conjecture.

[41] Mr. Brodsky further submits that it would be capricious for the jury to in effect reject the evidence of Dr. Pickup, (who opines that the death could have been caused by either the multiple chop wounds, the chest compression, or a combination of both), and make their own finding attributing death solely to the chop wounds. Any such finding by the jury, Mr. Brodsky submits, would be unreliable and unsupported by the expert evidence.

D. PRINCIPLES RELATING TO THE PRELIMINARY INQUIRY

[42] The issue to be decided at the preliminary inquiry is whether there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.

[43] As noted by Justice Hill in R. v. Pinnock, [2007] O.J. No. 1599, as a general rule it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence. Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered.

[44] The prohibition against weighing evidence in assessing the committal question is narrowly modified where the prosecution produces circumstantial evidence of guilt. In those circumstances, the preliminary inquiry judge is permitted to engage in a "limited weighing" of such evidence in determining whether that evidence supports a reasonable inference, as there exists "an inferential gap beyond the question of whether the evidence should be believed." (see R. v. Arcuri, 2001 SCC 54, 157 C.C.C. (3d) 21; R. v. Woodcock, [2008] O.J. No. 5899).

[45] A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw, nor indeed the most obvious or compelling inference. If there are competing inferences, these are for the trier of fact to resolve. A preliminary inquiry judge commits jurisdictional error where he weighs competing inferences or chooses among them. If the trier of fact could reasonably draw an inference based on the evidence, then the matter should be left for their determination. Thus, if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it. (R. v. Munoz, 86 O.R. (3d) 134).

E. THE ANALYTICAL FRAMEWORK

(i) Planning and Deliberation

[46] It is the murder itself which must be planned and deliberate, not some incidental or inconsequential conduct, and the planning and deliberation must precede the unlawful act that causes death. (R. v. Penney, [2004] O.J. No. 5914).

[47] Planning and deliberation may be proven by: direct evidence; circumstantial evidence; or direct and circumstantial evidence in combination. (R. v. Penney, supra).

[48] Post-offence conduct may or may not be relevant to the ultimate issue of guilt, depending upon the circumstances of a particular case. Historically, Canadian courts referred to post-offence conduct as evidence of "consciousness of guilt". Generally, where an accused person acknowledges culpability in respect of one offence, courts have been loath to attach any probative value to consciousness of guilt evidence in order to prove a higher level of offence. (R. v. Arcangioli, 87 C.C.C. (3d) 289). Therefore, applying that standard to the case at bar, the defence submits that since Mr. Lee has acknowledged responsibility for second-degree murder, the post-offence conduct complained of here can be of no assistance to the Crown in proving first-degree murder.

[49] In R. v. Teske, [2005] O.J. No. 3759, Justice Doherty, writing for a unanimous court, states, at para 85: "More recent case law has, however, recognized that after-the-fact conduct evidence is simply a species of circumstantial evidence. The evidentiary value of this evidence depends on the reasonable inferences that a trier of fact can draw from it when considered in the context of the entirety of the evidence and the issues raised at trial: R. v. Peavoy, 117 C.C.C. (3d) 226…. Some after-the-fact conduct will, as a matter of common sense and human experience, when viewed in the context of the entirety of the evidence, be reasonably capable of supporting an inference as to an accused's state of mind at the time of the homicide in issue: R. v. MacKinnon, 132 C.C.C. (3d) 545; R. v. Poitras, 57 O.R. (3d) 538"

[50] In Poitras, supra, the Court of Appeal held that evidence of dismemberment of the body and hiding of parts of the body in various locations could support an inference that the appellant did not want the body discovered and wanted to people think that the deceased had left for two months, thus allowing the appellant and the deceased's wife to assume cohabitation without attracting suspicion.

Analysis

[51] As noted above, the Crown rests its submission for committal to trial based on planning and deliberation on three planks: (i) motive; (ii) concealment of identity, and (iii) post-offence conduct.

[52] Mr. Lee, in his statement(s), details evidence of financial motive, desire to avoid civil litigation, potential for criminal charges, as well as protection of his reputation in the community and in his home. Such evidence may assist a jury to infer motive.

[53] This evidence, standing alone, would not in my view suffice for a committal on first-degree murder.

[54] There is evidence in this case which supports an inference, arguably a strong one, that Mr. Lee wished to conceal his identity from the various security cameras in the apartment building of the deceased. Mr. Brodsky submits that there is nothing unusual about a person wearing a hood on a cold day in December, even after entering a building. This is certainly an inference which can be urged upon a jury, however the jury is also entitled to infer that this is evidence of concealment of his identity, especially in conjunction with the further evidence that Mr. Lee deliberately exited the elevator on the sixth floor, and ultimately attended at the apartment of Ms. Hua on the 17th floor.

[55] With respect to the evidence that Mr. Lee left in the same fashion, i.e., by entering the elevator on the sixth floor, again with his hood up and his face concealed from view, Mr. Brodsky argues that this is post-offence conduct and irrelevant to the issue of whether he should be committed to trial on first or second degree murder.

[56] I disagree. As a matter of common sense and human experience, it seems to me that when viewed in the context of the remaining evidence of concealment, a jury is entitled to consider this evidence as capable of supporting an inference of Mr. Lee's state of mind prior to the time of the murder. (Teske, supra at para 85). The jury would be entitled to infer, based upon all of the above evidence, that Mr. Lee had deliberately concealed his identity upon entering and leaving the building, and both planned and attempted to distance himself from Ms. Hua's apartment by exiting and entering the elevator from a floor other than hers.

[57] It is my view that when considered together, the evidence of motive, combined with the evidence of concealment of identity, are capable of supporting a reasonable inference that Mr. Lee attended at the apartment of Ms. Hua having planned to kill her and deliberated upon the consequences of his intended actions.

[58] As pointed out by the Crown, the evidence of concealment makes no sense on any theory other than planned and deliberate murder. If Mr. Lee had planned to leave Ms. Hua alive, then his elaborate attempts to conceal his identity would have been a complete waste of time, as she would be able to readily identify him as having attended at her apartment at the date and time in question.

[59] Therefore, it is my view that Mr. Lee must be committed to trial on a charge of first degree murder.

[60] I would not, however, rely on the post-offence conduct to support the committal beyond that noted above in paragraphs 55 to 56. The evidence of dismemberment, for example, if indeed it were part of a plan hatched in advance, it was a plan very poorly thought out and even more poorly carried out. In my view the jury would not be entitled to rely upon this evidence as capable of supporting an inference that Mr. Lee planned and deliberated to kill Ms. Hua. If the jury were, however, to conclude that Mr. Lee had indeed searched the apartment and found and destroyed the post-dated $50,000.00 cheque, it may be that that finding could support an inference of planning and deliberation.

(ii) Constructive First Degree Murder

[61] Section 231(5) of the Criminal Code provides: Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections: …(e) section 279 (kidnapping and forcible confinement).

[62] In R. v. Pritchard, 2008 SCC 59, [2008] 3 SCR 195, the Supreme Court of Canada noted, at paragraph 19: Section 231(5) reflects Parliament's sentencing policy to treat murders committed in connection with crimes of domination as particularly blameworthy and deserving of more severe punishment. The phrase "while committing or attempting to commit" requires the killing to be closely connected, temporally and causally, with an enumerated offence.

[63] At paragraph 24, the court holds: "The authorities establish that if for any significant period of time Mrs. Scolos was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within section 279(2)", and further, at paragraph 27: "…even a confinement which satisfies s. 279(2) will not trigger s. 231(5)(e) if it is consumed in the very act of killing. In order to trigger s. 231(5)(e), the confinement and the murder must constitute distinct criminal acts: R. v. Kimberley, 157 C.C.C. (3d) 129. Thus, the issue under s. 231(5)(e) is… Whether there was unlawful confinement distinct and independent from the act of killing.

[64] In R. v. Kimberley, supra, at paragraph 108, Justice Doherty notes: I do accept that a confinement which is inherent in the very act of killing could not be relied on to impose liability under s. 231(5)(e). This is not because there is no confinement, but because s. 231(5)(e) requires two discrete criminal acts, a killing that amounts to murder and a confinement that is unlawful.

Analysis

[65] The evidence upon which the Crown relies in support of committal to trial on constructive first degree murder is the evidence of the pathologist of injuries consistent with someone having sat or knelt upon the chest of the deceased, together with his opinion that death was caused either by asphyxia due to this activity, blood loss from the chop wounds, or both in combination.

[66] The Crown submits that if the jury were to conclude that the deceased died solely as a result of the chop wounds, then by virtue of having sat or knelt upon her chest, the accused had forcibly confined the deceased while committing murder, therefore elevating the offence to one of murder in the first degree.

[67] In my view, there is no reasoned basis, on the evidence adduced at this preliminary inquiry, upon which a jury would be entitled to conclude that the death was caused by the chop wounds alone. It was the considered opinion of the pathologist that he could go no further than opine that death was caused by one, the other, or a combination of both. He could not say one was the more likely cause of death than the other. For the jury to conclude otherwise, in my view, in the absence of further evidence, would be nothing more than speculation.

[68] In these circumstances, in my view, the Crown has failed to adduce evidence capable of establishing that the confinement set out above was not "… inherent in the very act of killing…" in the sense contemplated by Doherty, J.A. in Kimberley, supra.

[69] I therefore conclude that no reasonable jury, properly instructed, could convict Mr. Lee of first degree murder on this basis.

Released: June 25, 2015

Signed: "Justice F. Crewe"