Yoga ball murders retrial

Hong Kong's top court has given former Chinese University associate professor Khaw Kim Sun a chance to clear his name after all five judges quashed his murder conviction over the deaths of his wife and daughter and ordered a retrial of the sensational yoga ball murder case.

Khaw, 58, also a senior medical officer at the Prince of Wales Hospital, was convicted on two counts of murder in 2018 after a trial before High Court judge Judianna Barnes Wai-ling and a jury for allegedly placing an unplugged yoga ball filled with carbon monoxide in the trunk of his wife's car.

Khaw's wife, Wong Siew-fing, 47, and daughter Lily Khaw Li-ling, 16, were found dead on May 22, 2015, in a yellow Mini Cooper.

During his appeal Khaw's lawyers said police only started to probe into the missing plug of the yoga ball - which caused the carbon monoxide leak that killed the two women in the car - six months after the incident.

A plug was found a year later in the drawer of anesthesiologist Khaw's study at home.

The Court of Final Appeal judges - Chief Justice Andrew Cheung Kui-nung, permanent judges Roberto Ribeiro, Joseph Fok and Johnson Lam Man-hon plus nonpermanent judge Beverley McLachlin - agreed the lower court judge might have seriously misdirected the jury by disregarding the possibility the missing plug was displaced and the one found in Khaw's drawer belonged to another yoga ball.

Khaw will remain in jail custody awaiting the retrial.

The justices said in their written judgment that Barnes eliminated the possibility daughter Lily might have used the gas in the yoga ball to kill insects.

Although Barnes gave a very thorough summing up in every other aspect of the case, they said, "we have come to the conclusion her directions regarding the stopper could have steered the jury toward an impermissible line of reasoning in rejecting the possibility of Lily using the carbon monoxide to kill insects."

They added that Barnes allowed the jury to "ignore the possibility" the plug was displaced or mistakenly taken away before the search of the car on November 25, 2015. "Given the time lapse between the deaths and the search and the handling of the car and the contents of its boot [the] possibility cannot be discounted," they said.

"It should at least have been a matter for the jury to deliberate upon, and the judge's directions did not draw the jury's attention to the need to conduct such deliberation."

The judges also said the plug found in Khaw's drawer in May 2016 might not necessarily be the stopper of the yoga ball in the car.

"As there were other yoga balls in the house a spare stopper found in the drawer could not by itself be a matter of significance," they said.

"It did not have strong probative value in terms of proving the appellant was the person who put the ball in the Mini Cooper on May 22, 2015.

"In the absence of any evidence linking the stopper found in the drawer with the yoga ball in the car the closing remarks of prosecuting counsel in that regard were highly prejudicial. In such circumstances the judge should at least have drawn the attention of the jury to the fact there was nothing to connect the stopper in the drawer with the yoga ball in the car."

The judges said Barnes' directions were "erroneous" and might have misled the jury, denying a fair trial for Khaw, and the case should be assessed in a retrial.

"The consequence of the judge's summing up in the present case is that the appellant has cause to complain that, by reason of the misdirections complained of, he was deprived of a fair trial," they said.

"His defense, that it was not proved beyond reasonable doubt it was the appellant who put the yoga ball in the car and removed its stopper, was not fairly put because the possibility it was Lily who did so was not properly left to the jury by the judge in the summing up.

"Instead, because of the misdirections the jury were invited to eliminate Lily as a possible candidate on the basis of an impermissible line of reasoning."

wallis.wang@singtaonewscorp.com

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