HKSAR v. CHOW CHING YIN

CACC 351/2019

[2021] HKCA 157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 351 OF 2019

(ON APPEAL FROM HCCC NO 149 OF 2018)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the judgment of the court):

A. Introduction

1.  On 29 May 2017, at 8:20 am, a 20-year-old man (known as “Bosco”) was found dead on a slope at Black Hill, Tseung Kwan O.  His head was covered by a gunny sack and it appeared that he had been left to die after injuries were inflicted on him.  Ultimately, three persons, namely Yim Yu Hang (D1, known as “Martin”), the applicant (D2, known as “Benard”) and Wong Long Ki (known as “Mao Chai”), were charged with the murder of Bosco, contrary to common law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212.  Martin and a fourth person Wong Wai Ho (known as “Jack”) were also accused of removing and deleting the data stored in the mobile telephone belonging to Bosco, and in respect of these acts they were jointly charged with doing an act tending and intended to pervert the course of public justice, contrary to common law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221. 

2.  Originally, all four accused appeared before Madam Justice Barnes (“the judge”) in the High Court but the judge subsequently ordered that the trial be severed into two with Martin, the applicant and Jack being tried together, whilst Mao Chai would be separately tried on his own.  However, the judge subsequently further ordered that the trial of Jack be severed from the trial of Martin and the applicant.

3.  This left Martin and the applicant to stand trial on an indictment containing a joint count of murder (Count 1) and a second count against Martin alone of doing an act tending and intended to pervert the course of public justice (Count 2). 

4.  In respect of the count of murder, both Martin and the applicant offered to plead guilty to manslaughter but these offers were rejected by the prosecution.  At the end of the prosecution case, the judge ruled that there was no case for Martin to answer in respect of Count 2.

5.  At the conclusion of the trial, Martin was acquitted of murder but convicted of manslaughter by gross negligence whilst the applicant was convicted of murder.

6.  By his Notice of Application for Leave to Appeal (Form XI), the applicant sought leave to appeal against his conviction.

7.  At the conclusion of the hearing of the application, we refused it and dismissed the appeal.  These are our reasons for doing so.

B.      The prosecution case

8.  Bosco was a war-game enthusiast who from time to time traded in military equipment with other war-game enthusiasts including Martin and the applicant. However, Bosco was believed by Martin and the applicant to have been dishonest in some of his transactions with them and they were not happy with him.  There had been arguments in the past with him over his dishonest behaviour with one such argument taking place in Mongkok in March 2017 when the applicant ran into Bosco in the street and chided him for cheating people.

9.  In a WhatsApp chat group (known as the “Midnight Outing Group”) consisting of 13 members that included Martin and the applicant, but excluded Bosco, a plan was hatched to invite Bosco to join a night hike at Black Hill.  The night hike was initially scheduled for 13 May 2017 but was subsequently deferred to 27 May 2017 because of bad weather.  The key issue at trial was the purpose of this night hike.  The prosecution case was that the purpose was to lure Bosco to the night hike, isolate him on the hill and kill him.  The WhatsApp messages were relied upon by the prosecution to prove that this was a joint enterprise crime with a common intent to kill Bosco.  Some of the WhatsApp messages were as follows:

Date	Sent from	Content of the message
11 May 2017	Martin	“I will probably finish him at the second highest point of Black Hill”
26 May 2017	Martin	“Guys plz prepare for tmr”
26 May 2017	Martin	“I take him down when I isolate him with 06 (sic)”
26 May 2017	The applicant	“I will come over after banquet or drink tomorrow night”
27 May 2017	Martin	“I take him down with Benard” “And Benard carry the rest to extraction”
27 May 2017	Martin	“Maybe only 4-5 mins to take him down, pack his things, and hide his body”

10.  The prosecution also relied on the following evidence: 

(i)     that earlier, a member of the WhatsApp group named Asher (PW5), had been asked to purchase sleeping pills or something similar to make Bosco feel tired.  However, this proposal was not carried out and, in any event, it transpired that Asher was ill on 27 May and so did not join the night hike;

(ii)     that another member of the WhatsApp group named Chester (PW6), claimed that he had heard Martin speaking of the idea to invite Bosco to go on a night hike so that they could give Bosco a beating. 

11.  On the night in question, 27 May 2017, Martin, the applicant, and Mao Chai met up in Yau Tong and then proceeded to Black Hill.  There, the applicant continued walking up the hill alone, whilst Martin and Mao Chai waited for Bosco and his friend “05” to arrive.  When they did so,[1] Martin and Bosco then went up the hill to a location where, unbeknown to Bosco, the applicant was waiting in hiding for them.  05 and Mao Chai were left behind which meant that Bosco was isolated from his friend and left on his own with Martin who took him to the location where the applicant was lying in ambush.  

12.  Martin subsequently returned and told 05 that Bosco had left urgently.  The respective Octopus card records of Martin and the applicant revealed that, on 28 May 2017, at 4:50 am, they boarded the same bus together which travelled from Tseung Kwan O to MongKok.

13.  On the morning of 29 May 2017, Bosco was discovered lying on the ground of a terraced field on a slope which was some 10 metres away from a pavilion at Black Hill.  His head was covered by a white gunny sack and his mouth was tied with a brown hemp rope bearing a slipknot fixed around his neck. His clothing was stained with blood.  He had been dead for one to two days and the causes of his death were identified by the pathologist as, firstly, multiple stab wounds to his neck caused by repeated stabbing with a single-edged, flat blade stabbing instrument, like a knife; and, secondly, head injuries.

C.     The defence case

14.  The only defence witness who testified at trial was the applicant himself.  He said that he had been in an ongoing dispute with Bosco over his trading in military equipment, including the sale of two military radios half a year previously, as a result of which he wanted to resolve his dispute with Bosco and make him admit that he had cheated people.  The applicant’s defence was that the reason to get Bosco to go night hiking was not to harm or kill him but to play a trick on him in order to resolve their dispute.  The applicant said there were originally three ways to execute the trick but ultimately none could be carried out because Bosco lost his temper as soon as Martin alluded to his dishonesty.

15.  The applicant explained what happened on the night in question.  He said that whilst hiding in the bushes he heard Martin talking to Bosco about the sale of the two military radios.  What happened thereafter, was summarised by the judge in her summing-up as follows:

“…Bosco did not want to discuss. He had a big reaction, you can hear the description, but then Bosco said that he had not sold any fake items to Benard, did not want to talk about it, denied that he had sold any fake items to Benard.

Then Benard could hear that Martin was still trying to talk to Bosco about this matter and then Bosco lost his temper and started to speak louder and louder. Benard was worried that Bosco might attack Martin so he came out of the bushes and made himself known. He saw at that time Bosco grabbed the collar of Martin’s top and acted as if he was about to punch Martin. So Benard shouted to Bosco to stop and Bosco released the grip on Martin, did not hit Martin, and turned round. Then he then saw Benard and at that time they were about 5 metres away.

Upon seeing Benard, Bosco dashed towards Benard and threw himself on Benard as if Bosco was trying to throw Benard on the ground. Benard pushed Bosco away and Bosco still tried to knock Benard onto the ground a few more times. In the meantime, Martin then tried to pull Bosco back so that Bosco cannot attack Benard but it was without success. Martin told Bosco, ‘Stop, stop’, but Bosco ignored Martin and said to Benard, ‘What do you want?’ and he continued to hit Benard. Then Benard had a fight with Bosco.

Benard told you that Bosco was bigger and stronger than he and of course you learned from the autopsy report about the height and the weight. The weight is 90 kilogrammes. So he said Bosco was bigger and stronger, so during the fight Martin and Benard tried to push Bosco on the ground but they were not able to do that and during this fight Bosco used a lot of objects to attack Martin and Benard and Benard remembered Bosco taking some hard object from his person to attack Martin and Benard. Bosco had also used an airgun to shoot at Martin and Benard with plastic bullets and he had also fetched a broomstick and a metal pipe from the nearby canopy to attack Martin and Benard.

Now, while Bosco was attacking them, Martin and Benard made attempts to snatch these items from Bosco’s hand, thinking of throwing them away, and Benard said that they were successful in doing so. Benard told you that he thought the hard object that Bosco had taken from his body was perhaps a magazine for holding bullets. He also told you that when he was attacked by Bosco he defended himself by fighting back with the broomstick and the metal pipe. He told you he hit Bosco all over the body with these two items, first with the broomstick then the metal pipe.

He also recalled having hit Bosco’s head with the metal pipe and after being hit on the head Bosco stopped for a while. Now, you might think that on that evidence it was done by the blow on the head because you have all the weight of the metal pipe in question. Martin then stood between Benard and Bosco and pushed Benard away. Martin told Benard to stop, told Benard not to hit Bosco anymore, so Benard then threw the metal pipe away onto the ground.

Bosco then pushed Martin aside and dashed towards Benard and Bosco pushed Benard onto the ground and straddled across Benard’s body. Bosco hit Benard with an object in his hand and Benard could not see what it was, so Benard then fended himself off and managed to push Bosco away and succeeded in straddling Bosco instead when Bosco was lying on the ground. Then Benard grabbed the thing, whatever was that item, that object that he could not see, from Bosco’s hand and used it to hit Bosco. He told you he could not remember how many times he hit Bosco. He cannot really tell you and he only remembered hitting Bosco and then Bosco said to him, ‘Big brother, I'm sorry, stop hitting’, then he stopped and he threw this object that was in his hand onto the ground.

After he did that he then stood up and looked for Martin to check Martin. He said Martin was lying on the ground and appeared to be disorientated and so Benard helped Martin up and pat his face to wake him. After Martin was woken up, Martin said, ‘How was Bosco?’ Benard then went to check on Bosco and saw that Bosco looked dizzy or disorientated but was still moving and also said something but Benard could not hear what he was saying. So after checking Bosco, Benard then went back to tell Martin. He said, ‘I think he had fainted. You better leave first’, and so Martin left.

After Martin had left, Benard went back to check on Bosco again. Now, on this occasion he found that Bosco had no response, no breathing, so he thought that Bosco was dead and he was in a panic, did not know what to do. He just wanted to leave the scene but he did not want people to find the body of Bosco. He wanted to hide the body, so that is when he dragged the body to the side of the hill and while dragging him there you heard that he tripped so both he and Bosco rolled down the hill. After they came to a stop he left Bosco there and he climbed back up himself.”[2]

16.  The applicant said that it was only afterwards that he saw a folding black knife on the ground, and he threw it down the hill before he left.

17.  The applicant relied on three defences, namely:

(a)     self-defence, that is, he did not instigate the fight and only used reasonable force to defend himself;

(b)     manslaughter by an unlawful and dangerous act, that is, he snatched a hard object held by Bosco and in repeatedly hitting him with it, he did acts which were, admittedly, dangerous in the eyes of all sober and reasonable people; and

(c)     manslaughter by gross negligence, that is, he breached his duty of care towards Bosco by leaving him in a badly injured and helpless state down the slope and this conduct amounted to gross negligence justifying a criminal conviction.     

18.  In respect of the allegation that there was a plan to kill Bosco, the defence submitted that the WhatsApp messages had to be read in the context of the language used by war-gamers; for instance, “take somebody down” might not really mean killing someone.  It would also defy common sense to suggest that a person who genuinely planned to harm or kill someone would publicise the plan in the Midnight Outing Group. 

D.     The applicant’s Perfected Grounds of Appeal

19.  By his Perfected Grounds of Appeal against Conviction, Mr David Boyton, counsel for the applicant, advanced two grounds of appeal against conviction. 

D.1    Ground 1

20.  In his first ground of appeal, the applicant complained that in her summing-up the judge “erred in law and/or on the facts by placing a burden on the Applicant to prove that he did not intend to kill or cause grievous bodily harm; and the said direction was exacerbated by highlighting prejudicial and/or inadmissible evidence relating to uncharged acts, that arose, or may have arisen from the testimony of the Applicant.”  In support of this ground, Mr Boyton referred to a direction of the judge which was given in the context of whether a plan to kill was contained in the WhatsApp messages exchanged by the Midnight Outing Group.  He said:

“Can you be sure, as submitted by Mr Grounds and Mr McNamara, that they do not mean killing someone? They do not mean hurting somebody at all?”[3].

By this direction Mr Boyton submitted that, in effect, the judge was telling the jury that they had to be sure of the doubt raised by the defence.  It was said to be an example of the judge reversing the burden of proof.

21.  The judge suggested to the jury that to assist them in interpreting what was meant by the text messages they could have regard to the evidence of the Applicant that the plan was originally to take Bosco up the hill on 13 May to resolve the matter of the radio but that was cancelled because of bad weather.  Mr Boyton argued that this and other directions of the judge referred to a possible pre-existing and separate conspiracy to kill Bosco.  He further argued that such a conspiratorial agreement was an uncharged act and did not form the basis of the murder count.  Consequently, in the absence of any appropriate directions on the impermissible use of the evidence of an uncharged act, it might be misused by the jury as evidence against the applicant.  He said that the matter was further complicated because the judge had earlier told the jury that:

(a)     “Now, even Asher, he was in fact a party, we can see, because Martin asked the three to be prepared and Asher was one of them and Asher did not go.  So if Asher was originally a plan, he would have been a party to the conspiracy to do it although he did not do it at the end”[4]; and

(b)     “the prosecution say that Benard was a party to this joint plan on the 27^th when Bosco was asked to go to this night hike.”[5]

22.  Mr Boyton also criticised a comment made by the judge, on the credibility of the applicant’s claim that during their fight Bosco straddled him and attacked him with a stabbing instrument yet he, the applicant, did not suffer any wounds.  The judge commented:

“Now, if what he said is true on this part, would you not expect that there would be some stab wounds on Bernard because Bosco was holding this item first and attacked him first?”[6]

23.  Mr Boyton complained that the judge had effectively placed the burden on the applicant to give an innocent explanation as to why, if his defence was credible, no stab wound was found on his body at all.

D.2    Ground 2

24.  By the second ground of appeal, the applicant complained that the judge’s failure to leave the defence of provocation to the jury constituted a grave miscarriage of justice and rendered the conviction unsafe and unsatisfactory.  Mr Boyton argued that notwithstanding that the defence did not run a concurrent partial defence of provocation, the judge, nevertheless, should have, on her own initiative, left the partial defence of provocation to the jury as there was sufficient evidential basis to establish that the applicant was provoked and had lost his self-control at the time of the killing.  

25.  Mr Boyton submitted that the evidence had to be placed in the context of there being a long-standing dispute between the applicant and Bosco and that the concept of cumulative provocation would come into play.  Mr Boyton argued that Bosco’s own words and acts gave rise to the subjective aspect of the provocation defence and that the applicant’s loss of self-control occurred when Bosco attacked the applicant the second time.  The applicant’s loss of control was evidenced by his inability to recall how many times he had used a hard object to hit Bosco, his confusion and inability to think clearly after the incident and the number of stab wounds, 38 in total, which suggested frenzied conduct by the applicant.

D.3    Appellate counsel’s Apelete enquiries of trial counsel   

26.  Because the defence of provocation was not relied on by the applicant at his trial Mr Boyton, made enquiries of defence counsel as to why this was so.  This is an obligation imposed on appellate counsel by the Court of Appeal in its judgments in HKSAR v Apelete (No 1)[7] and HKSAR v Apelete (No 2)[8]when counsel on appeal complain of the way the defence was conducted at trial.  In reply to Mr Boyton’s enquiry, the defence counsel at trial, Mr John McNamara, said that prior to trial he considered all defences to murder.  He continued:

“… On my instructions I did not consider that the defence of provocation was available.

2. It was not a tactical decision not to run the defence.  I simply did not think it was reasonably available.”

Consequently, Mr McNamara said, he did not deem it necessary to raise the matter with the trial judge.

27.  Notwithstanding that he had received this reply from a very experienced criminal practitioner, Mr Boyton persisted with his contention that provocation was established by the evidence and was implicit in the testimony of the applicant.  He submitted that no one at trial had appreciated that if the defence of self-defence failed and if the jury found proven, as the prosecution asserted, that the applicant possessed the mens rea for murder, thereby removing unlawful act manslaughter as a possible verdict, there was nothing that stood between the applicant and a conviction for murder.  In these circumstances, Mr Boyton argued, fairness to the accused required that the defence of provocation be left to the jury.    

E.     The respondent’s submissions

28.  Mr Derek Lai, with Mr Mark Wei, for the respondent, submitted that there was no dispute at trial regarding the existence of a “plan” to go for a night hike and that the judge had pointed out that what really mattered was the reason to get the deceased to go night hiking.  Mr Lai submitted that the reference to a “plan”, “joint plan” or even “conspiracy” in the judge’s summing-up did not cause any prejudice to the applicant.

29.  Regarding the burden of proof, Mr Lai submitted that the judge had at various stages of her summing-up directed the jury that the burden of proving its case was on the prosecution, not the defence.  He submitted that the impugned directions in the first ground of appeal should not be considered in isolation, whilst accepting that there might have been a slip of the tongue on the part of the judge.  Mr Lai said that when the summing-up was read as a whole, there was no real danger of the jury being confused or having a misunderstanding on the burden of proof.

30.  In respect of the second ground of appeal, Mr Lai referred to the evidence of the applicant in relation to what occurred on the hike and submitted that it did not provide support for the claim that he lost his self-control as it showed that he was able to desist from assaulting Bosco whenever there were lulls in the fighting.  There was, accordingly, no evidential basis requiring the judge to give a direction on manslaughter by provocation.

F.     Discussion

F.1     Ground 1

31.  In light of the argument on the first ground of appeal, it is necessary to see how the judge directed the jury in respect of the burden of proof.  At the beginning of her summing-up, the judge told the jury that:

“At the end of the day, you will have to decide whether the prosecution had made you sure that Martin is guilty of murder, that Benard is guilty of the murder of Bosco, of course, the murder of Bosco. Now, if the prosecution have failed to make you sure that Martin or Benard is guilty of the murder of Bosco, you still have to consider whether the prosecution made you sure that they are guilty of manslaughter for the death of Bosco, a lesser offence than murder.”[9]

In a later more detailed direction, the judge said:

“… In the criminal trial it is always the burden on the side of the prosecution to prove that the defendant is guilty. That is very important. You must remember that, all right? It is for the prosecution to make you sure that the defendant is guilty. It is not for the defendant to show you, ‘I am innocent’, so that is the burden and I have already mentioned the prosecution have to make you sure. That is the standard, not, well, maybe he is guilty. Maybe he is not guilty. That is not enough.

…

Sometimes it is referred to beyond a reasonable doubt, so if after considering all the evidence there is a reasonable doubt whether Martin is guilty or whether Benard is guilty, that doubt would mean that the prosecution had failed to make you sure, then you must find the particular defendant not guilty of murder.”[10]

32.  The judge gave a Liberato direction and also reminded the jury that the burden of proving guilt to the criminal standard remained on the prosecution even if they, the jury, rejected the applicant’s evidence.  She said:

“… If you believe Benard what he said is true or may be true, they are not guilty. But if you do not believe, it is not automatic that they are guilty. You still have to consider whether the prosecution discharged the burden of making you sure that each one of them had committed the offence of murder, all right?”[11]

33.  When directing the jury on the elements of murder, she commenced by saying:

“The burden is throughout on the prosecution to prove each ingredient of the offence beyond reasonable doubt.”[12]

34.  She also informed the jury that not every question in their minds might be answered by the evidence and then continued:

“… but the evidence must lead you to the sure conclusion that the charge which the defendant faces is proved against him. I emphasise the words ‘sure conclusion’.”[13]

35.  At the conclusion of her summing-up, the judge again reminded the jury of the burden and standard of proof and the operation of the standard of proof in the drawing of inferences.  She said:

“… I just want to emphasise again you have to remember it is for the prosecution to make you sure that the defendant is guilty of either the murder charge that he faces, this applies to both Martin and Benard, and if not murder, a lesser offence of manslaughter. It is still for the prosecution to make you sure that that is the case. If you are not sure then the defendant is just not guilty, all right?

…

Drawing inferences, remember what I have told you about it had to be the only reasonable inference to be drawn if it is to be against the defendant for you to convict him. And the circumstantial evidence, again, you have to come to the sure conclusion, not just could be this, could be that, no guessing, no speculation, all right?”[14]

36.  It is apparent that the judge repeatedly and emphatically directed the jury on the burden and standard of proof.  Against this backdrop the complaints of the applicant fall to be considered. 

37.  As the ground of appeal attacked a comment made by the judge in respect of the WhatsApp messages it is necessary to place them in context and see what else she had to say about them.

38.  The judge first informed the jury of the interpretation that the prosecution was placing on the messages, saying:

“ Now, the prosecution rely on the truth of the contents of these messages. The prosecution case is that if the contents are true it shows that there was a plan to get Bosco to go night hiking, to isolate Bosco from his friend 05 and with the intention to kill or at least cause him serious bodily harm, taking him down, hiding the body, those references. Then later on, at 2336, that is the message from Martin saying, ‘Hey Benard, if on the hill you see anybody, anyone hiking, jogging and such, you report over here.’”[15]

39.  When discussing the defence interpretation of the messages, the judge distinguished those messages relating to Martin from those relating to the applicant.  After a lengthy discussion of the submissions of Mr Grounds, counsel for Martin, the judge said:

“ So the defence is saying that if you look at all these, it would be more logical to say that these are just chats that people use because they are playing wargames and not seriously something about trying to do Bosco harm, so it is a matter for you.”[16]

40.  The judge went on to discuss the position of the applicant and reminded the jury that the case for the prosecution was that this was a joint enterprise offence and so what Martin said reflected a common intent.  She then turned to what Mr McNamara was urging on behalf of the applicant.  She said:

“ So Mr McNamara basically adopted what Mr Grounds has said, that which I have outlined to you that they were just kind of talks that wargamers use, does not mean to really kill somebody, pretend dead only, and so on and so forth, and also the publicity part, you know, wound and publicising to everybody there is a real intention to do that, and the evidence of Chester being unreliable and so on. So these are really what both defence counsel really rely on rather similar grounds to say that do not just take on face value what was said in these WhatsApps. These WhatsApps, the defence said, do not support the prosecution’s contention that clearly Martin and all those involved in this plan had the intention to harm Bosco, to kill him or at least to cause him really serious bodily harm.”[17]

41.  This was immediately followed by the following directions to the jury and the italicized words are the comments of the judge of which the applicant complained.

“ You will have to consider these WhatsApp messages, bearing in mind what you can do with those underlined and with those not underlined and consider not just the WhatsApp messages but all the other evidence before you as well. Remember the background of these people, like Martin, Benard, Mao Chai, 05, Daniel, Asher, Chester, all being wargamers and can you be sure that when Martin sent out the message like, “taking Bosco down” that was not merely some jargons, some terms used by gamers in their games. Can you be sure, as submitted by Mr Grounds and Mr McNamara, that they do not mean killing someone? They do not mean hurting somebody at all? It is a matter for you, right? That is all I want to say about the WhatsApp.”[18] (Emphasis added.)

42.  When discussing Mr Grounds’ submissions, the judge had told the jury:

“So Mr Grounds really is saying that the Whatsapps, the defence says that does not support the prosecution’s contention that if you look at the Whatsapps it is all there. Their intention is so clear. They are talking about killing Bosco, hiding Bosco’s body. So of course, if you agree with this interpretation of the defence, then there is never any plan, any intention to either kill or cause really serious injury to Bosco. It is a matter for you.”[19]

43.  Placed in the context of the judge’s overall directions on the WhatsApp messages, it is quite apparent that the judge is merely contrasting the different interpretations that the prosecution and the defence are placing on the WhatsApp messages and reminding the jury that they cannot place the prosecution’s interpretation on them unless they are sure that is the interpretation they bear.  We do not read this passage, in the way Mr Boyton urges us to do, as reversing the burden of proof.  Furthermore, given the very clear, and often repeated, directions on the burden and standard of proof, we have no doubt that the jury would not have been confused by this direction and would have understood it in the way we have set out.

44.  Mr Boyton’s complaint about the judge’s references to a conspiracy are all derived from comments made by defence counsel in their closing submissions.  These comments queried why all the members of the WhatsApp chat group were not said to be members of the joint enterprise.  For example, Mr McNamara said:

“… There were 13 members of the midnight outing group. This is why I mentioned it at the start, it’s important. They all couldn’t be part of a conspiracy to murder Bosco. The fact that the prosecution called a number of them to give evidence as prosecution witnesses clearly indicates that they’re not being held in any way responsible for this crime.”[20]

The judge was merely referencing those comments which were favourable to the defendants. 

45.  Nor can it be said that just because the planning for the crime commenced before the dates particularized in the indictment that any offence committed as part of that planning process constitutes an uncharged act.  If bank robbers steal a car two days before a robbery in order to use it as their getaway vehicle that theft does not become an uncharged act.  An uncharged act is a criminal offence that is quite independent of the offence for which the accused is being tried and which could lure the jury into impermissible propensity reasoning.  That is not the position in respect of the events, including the aborted 13 May proposal, which had probative value in proving a joint enterprise crime whose planning preceded its date of execution as particularized in the count.  There is nothing in this point.

46.  Nor is there anything in the complaint concerning the judge’s observation to the jury, and a non-binding personal observation is all it was, that in assessing the credibility of the applicant’s account of how the fight with Bosco transpired they might like to take into account the fact that the applicant emerged from the fight free of any stab wounds.  This was a perfectly legitimate comment for the judge to make based on the evidence.

F.2     Ground 2

47.  The legal principles relevant to when a trial judge should direct a jury on an alternative verdict not relied on by the defence were discussed by the Court of Final Appeal in HKSAR v Chau Yui Ming[21]. The judgment in that case is the final word on this question and the court’s earlier decision in Ho Hoi Shing v HKSAR[22] should no longer be regarded as representing a complete statement of the law of Hong Kong on this question.  Although Chau Yui Ming did not dramatically alter the law as set out in Ho Hoi Shing, the changes it did make were significant and the approach it lay down must now be the approach of trial judges and appellate courts when being called upon to answer the issue we have described at the beginning of this paragraph, and which issue underlies the applicant’s second ground of appeal.

48.  In Chau Yui Ming, Ma CJ, in giving a judgment with which the other members of the court agreed, commenced his analysis of the law by reiterating a number of “important connected features of a criminal trial”.[23] One of these was that “the defence must be free to conduct its defence as it sees fit in the way the evidence is treated and the way the defence is presented to the court, provided this is done reasonably and properly.”[24]

49.  In respect of the particular issue under consideration, namely the obligation of the judge to present to the jury alternative verdicts for their consideration, Ma CJ noted that this issue was concerned with “that aspect of fairness being the public interest in the fair outcome of a trial.”[25]

50.  In the appeal under consideration much reliance was placed on the language employed in Ho Hoi Shing in respect of the low evidential threshold that had to be met in order to give rise to alternative defences.  Ma CJ was critical of attempts after conviction to identify possible factual scenarios that could be derived from the evidence but which were contrary or inconsistent with the defence run at trial, and in respect of which no directions had been given by the trial judge.  He said:

“…Where, for instance, the defence’s evidence and approach to the evidence is contrary to such alternative or possible or secondary factual scenarios, it would be confusing and wrong for a judge to have to direct a jury on those alternative factual scenarios. Were it otherwise, this would invite ingenious attempts to identify alternative scenarios, particularly after trial, in order to impugn a summing-up, these allegations bearing little or no resemblance to what was the reality at trial.”[26] (Emphasis added.)

51.  Noting that in the appeal before them there was no alternative defence run by the appellant at trial, Ma CJ characterized what was being run on appeal not as alternative defences but as only mere speculations.

52.  In answering the question in what circumstances it would be incumbent on a judge to direct a jury on an alternative verdict Ma CJ said the judge should ask the further question of “whether there is an obvious alternative verdict which is supported by the evidence of that alternative.”[27] In answering this question, the trial judge should have regard to the way the defendant has conducted his defence.  Ma CJ said:

“The way that the defence case is run on the facts is obviously relevant in determining whether there is sufficient evidence in support of an obvious alternative verdict. If a factual alternative does not arise in the way the defence has dealt with the facts and presented the case on the evidence (as opposed to the legal approach) this will in most cases be decisive.”[28]

53.  Ma CJ obtained assistance from the decision of the English Court of Appeal in R v Fairbanks where it was said:

“… the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant….”[29]

54.  In the present case the applicant relied on self-defence as a complete defence to murder and unlawful act manslaughter as a lesser alternative on the basis that the jury may be satisfied that the applicant assaulted the deceased, other than in self-defence, but without any intention to kill or cause grievous bodily harm.

55.  The applicant was represented by an experienced criminal practitioner who concluded, on the basis of his instructions, and after considering all possible defences, that these were the only defences available to the applicant.  Implicit in Mr McNamara’s response to Mr Boyton’s enquiry is that he considered, but rejected, provocation as a viable defence.  Nothing has been placed before us that would cause us to conclude that this professional judgment of Mr McNamara was not reasonable or proper.

56.  However, Mr Boyton contended that Mr McNamara, the prosecutor and the judge all missed the point; the point being that once self-defence failed and once the jury found the mens rea for murder proven, the applicant would be left without any defence. But, unfortunate for the applicant as that may be, that is not the point.  The point is that a conscious decision was made not to run provocation at trial and consequently no positive case of the elements of the provocation defence were sought to be elicited from the applicant or the prosecution witnesses in the course of their testimonies.  An evidential foundation had not been laid to run provocation at trial.  That has placed Mr Boyton in the unenviable position of trying to derive evidential benefit from pieces of evidence which came out in the course of the trial and argue that cumulatively they laid the foundation for a provocation based manslaughter verdict.  This is precisely what Ma CJ cautioned against in Chau Yui Ming – namely, the ingenious efforts of appellate counsel “to identify alternative scenarios, particularly after trial, in order to impugn a summing-up, these allegations bearing little or no resemblance to what was the reality at trial.[30]

57.  In respect of the applicant, the defence of provocation was simply not an obvious alternative verdict which was supported by the evidence.  This ground of appeal fails. 

G.     Disposition

58.  For these reasons we refused the application for leave to appeal conviction and dismissed the appeal.

[1] According to the WhatsApp message sent from Martin, Bosco arrived at 23:06 hours.

[2] Appeal Bundle, pages 62B-64H.

[3] Appeal Bundle, page 58A-B.

[4] Appeal Bundle, page 53H-K.

[5] Appeal Bundle, page 56M-N.

[6] Appeal Bundle, page 81B-D.

[7] [2019] 5 HKLRD 574

[8] [2019] 5 HKLRD 602

[9] Appeal Bundle, page 24F-J.

[10] Appeal Bundle, pages 28K-29C.

[11] Appeal Bundle, page 32H-K.

[12] Appeal Bundle, page 34N.

[13] Appeal Bundle, page 37E-F.

[14] Appeal Bundle, page 99A-D, I-L.

[15] Appeal Bundle, pages 50T-51D.

[16] Appeal Bundle, page 53R-U.

[17] Appeal Bundle, page 57I-P.

[18] Appeal Bundle, pages 57Q-58C.

[19] Appeal Bundle, pages 52U-53D.

[20] Appeal Bundle, page 327A-C.

[21] (2019) 22 HKCFAR 368

[22] (2008) 11 HKCFAR 354

[23] (2019) 22 HKCFAR 368, 384, at [27].

[24] Ibid.

[25] Ibid, at [28].

[26] Ibid, 385, at [31].

[27] Ibid, 386, at [32].

[28] Ibid, 387, at [35].

[29] [1986] 1 WLR 1202, 1205G-1206B.

[30] See footnote 26.