HKSAR v. TSANG CHEUNG-YAN

CACC 361/2019

[2021] HKCA 1656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 361 OF 2019

(ON APPEAL FROM HCCC NO. 459 OF 2016)

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R E A S O N S   F O R   J U D G M E N T

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Hon Anthea Pang JA (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant (“D1”), together with Lau Keith (“D2”) and Cheung Sin Hang (“D3”), were jointly charged with murder[1] (Count 1), and preventing the lawful burial of a body[2] (Count 2).  They all pleaded guilty to Count 2 but not guilty to Count 1.  A trial accordingly took place before P Li J (“the judge”) and a jury.  On 13 December 2019, the applicant was unanimously convicted on Count 1; D2 and D3 were acquitted of murder but were unanimously convicted of manslaughter. 

2.  By a Notice of Appeal filed on 20 December 2019, the applicant sought leave to appeal against his conviction. 

3.  At the conclusion of the hearing on 3 November 2021, we dismissed the appeal, saying that we would give our reasons in due course.  This we now do. 

Prosecution case

4.  In the morning of 4 March 2016, Cheung Man Li (“the deceased”)[3] told his cohabited girlfriend (“PW1”) that he was going to Tsuen Wan to meet a friend (“the applicant”)[4] who had promised to give him HK$5 million.  Thereafter, PW1 lost contact with the deceased whose body was, on 29 March 2016, found embedded inside a cement block discovered in Flat 9D, DAN6^[5], Fui Yiu Street, Tsuen Wan (“the flat”)^[6], of which the applicant was the tenant and in which he resided with his friends D2^[7], D3 and Miss Ho (“PW2”)[8].

5.  It was the prosecution case that, in the early hours of 4 March 2016, the applicant, D2 and D3 had a discussion about how to rob the deceased and dispose of his body.  That same morning, they bought ropes, plastic bags and dichloromethane (“DCH”) and kept them in the flat.  They also got a pair of shorts soaked in dichloromethane to test the smell.  Later that same day, they jointly killed the deceased with intent to kill or cause him grievous bodily harm (“GBH”).  At trial, PW2 was called as an immunised witness for the prosecution.

6.  PW2 described herself as a secretary and sworn daughter of the applicant^[9], who provided her with free accommodation in the flat^[10] and paid her $8,000 per month for taking minutes of the meetings or gatherings held in the flat, in which the applicant, D2 and D3 took part^[11].  She said that at some of the meetings, she had heard the applicant, D2 and D3 discuss about criminal activities relating to drug trafficking and forged documents^[12].  She said that the applicant raised the matter of killing the deceased for a reward of US$30 million at some of those meetings as early as in December 2015 but she took it as a joke^[13].  On 4 March 2016, the deceased visited the flat.  She was at the mezzanine floor at the time and did not witness the killing at the lower floor.  It was the applicant who told her that the deceased was dead^[14], saying that he, D2 and D3 had killed the deceased^[15]. 

7.  CCTV recordings of DAN6 captured the applicant, D2 and D3 bringing wooden planks, bags of cement and sand to the building from 4 to 10 March 2016 and trying to push a cement block into the lift on 8 March 2016.  The three of them left Hong Kong for Taiwan on the night of 10 March 2016.  With the assistance of the Taiwan authorities, they were arrested by the police on 12 April 2016 upon their return to Hong Kong.  Under caution, the applicant said “[PW2] did not carry out the act.  (She) had knowledge (of it) at the very most.  I did help, but I was not the mastermind.  The mastermind was [D2].  I just helped to deal with the corpse.”^[16] A total of five video-recorded interviews (“VRIs”) were subsequently taken from the applicant. 

8.  At trial, Dr Poon, a pathologist, estimated that the deceased died a few weeks prior to 29 March 2016 but due to the advanced stage of decomposition, he was not certain about the cause of death, which included the depressant effect of dichloromethane on the central nervous system; suffocation due to the covering of the deceased’s mouth and/or nose and putting a pillow case and plastic bags on the head of the deceased; the cerebral blood clot found at the left cerebral hemisphere of the deceased; and cut wounds at the left lower chest and abdomen which ruptured the heart, the lung, the diaphragm and the liver. 

9.  It was an admitted fact that the applicant, D2 and D3 had no previous convictions^[17]. 

Pre-trial applications

10.  It is relevant to point out that counsel for D2 had made an application for severance and, as his fallback position (in case the application for severance was refused), a second application for redacting the prejudicial contents in the VRIs of his co-accused. After hearing the parties, the judge refused the severance application but granted the second application.  The judge said:^[18]

“After this court ruled that D3’s VRIs are admissible D2 applied for severance relying on the combined prejudicial effect of the following: first, the incriminating content of D3’s VRI is prejudicial to D2; secondly, the content on unrelated past incidents of alleged offences by D2 as mentioned in the VRIs of D1 and D3. The combined effect of the above gives rise to irreversible prejudice against D2 which cannot be cured by any careful direction to the jury. This situation justifies severance of D2 from the present trial.

It is a cardinal rule that the prosecution may use the content of the out-of-court statement of a defendant to incriminate the maker of the statement. It cannot be used against other co-defendants. A careful direction by the trial judge will be sufficient to minimise this risk. See Myers. It is also trite that the trial judge may disallow evidence which is irrelevant to be adduced.

D1 maintains that he does not want to disclose his defence at this stage. D3, after reconsideration, agreed that those allegations of offences be deleted. In my view, those bare allegations of unrelated past incidents of offences are irrelevant having heard submissions by counsel. I order deletion of those parts. Even if there is any other part left unnoticed, a careful direction could cure the prejudicial effect. See Lobban.

In my view, the background of this case justifies a joint trial of all defendants in the public interest and is also advantageous to individual defendants.  In the circumstances, I refuse the application for severance by D2.  I order that the content of the VRIs of both D1 and D3 which are objected to, as set out in annexure A of D2’s skeleton argument, be deleted.  I shall leave D3’s application to delete other parts of D2’s VRI at a later stage when the circumstances require.”

11.  This direction to redact the contents of the applicant’s VRIs now becomes Ground 2 (infra) of the applicant’s grounds of appeal and it is convenient to set out here what the applicant stated in those redacted parts.  In summary, the applicant claimed that it was D2 who stored syringes and drugs in the flat for D2’s own consumption and for use in Lan Kwai Fong so that he could drug his unsuspecting victims in order to steal or rape.  The applicant further said that he had told D2 that if he wanted to use drugs on the deceased, D2 could do it but he himself would not do it.  Further, the applicant stated that on the day of the killing, he was on the mezzanine floor and he pretended to inject alcohol into the deceased by using D2’s syringes. 

Defence case

12.  The applicant elected to testify and so did D2 and D3. 

13.  The applicant said that he came to know the deceased in 2007, describing him as his business partner in various businesses.  On the night of 3 March 2016, he was asked by the deceased to invest in an “Australian project”.  However, he thought that the deceased was going to cheat him and he mentioned this to D2 and D3.  D2 therefore came up with a plan to rob the deceased in Kwun Tong which transpired to be unworkable and was aborted, although some ropes, gloves and dichloromethane were bought at the request of D2 for robbing the deceased on some other occasion.  On 4 March 2016, the deceased came to the flat to discuss the Australian project.  Since the applicant did not want to join the project, he asked D3 to read the business documents and he himself took a rest at the mezzanine floor.  At one stage, he heard bumping and banging sounds and went down to the lower floor. He saw D2 on top of the deceased and cover the deceased’s face with his right hand, while D3 was underneath the deceased.  The applicant denied knowing that D2 had applied dichloromethane to the deceased but admitted that he had (under D2’s coercion) injected alcohol into the deceased’s leg twice^[19] and put a pillowcase on the deceased’s head^[20]. The applicant adduced the expert report of Dr Beh^[21] to show that injections of alcohol could not be the cause of death.  

14.  In his evidence, the applicant also confessed to have cheated others which might put his character in issue. 

15.  For the sake of completeness, the defence cases of D2 and D3 could be briefly stated.  In respect of D2, he said it was D3 who straddled the deceased and applied dichloromethane.  D2 was underneath the deceased (with D3 on top) and could not do anything.  In respect of D3, he said it was D2 who straddled the deceased and applied dichloromethane.  He just pulled the deceased away to stop a fight between D2 and the deceased.  He was underneath the deceased and could not move.  Both D2 and D3 said there was no plan to kill (or rob) the deceased. 

Summing-up

16.  The judge’s summing-up spanned more than 120 pages of transcript and took 3 days to deliver. 

17.  Regarding PW2’s evidence, the judge repeatedly directed the jury that she had an interest to serve and that they should be careful in assessing her credibility^[22].

18.  In order to assist the jury in understanding how the criminal liability of the defendants, jointly or individually, could be established, the judge provided the jury with a written Question Trail^[23], supplemented by his comprehensive directions couched in the following terms:^[24]

“… The first step, on page 1, is the first question you ask yourself, ‘Was there a joint enterprise?’ That is, was there an agreement or a common intention to apply dichloromethane and inject alcohol into Ah J?

Of course, you should consider all evidence before, at the time, and after the death of Ah J before you should come to the conclusion whether there was a joint enterprise, right? This evidence includes the evidence of Siu Cho and the evidence in the morning of 4 March and also the various conduct of the defendants in DAN6 in that morning. Now, if the answer is ‘Yes’, so there is joint enterprise, then you go to step 2. If the answer is, ‘No, there is no joint enterprise,’ you go to part (c). I will go to part (c) later, right?

Now, one point is important. A joint enterprise may involve two or three defendants. In case that joint enterprise involves two defendants, the liability of the remaining defendant should be considered under part (c). You understand? Because the liability of the two who were in the joint enterprise will continue to step 2.

Now, step 2, ‘What was the intention of the defendants in applying dichloromethane and injecting alcohol into Ah J? Was there an intention to kill or an intention to cause grievous bodily harm?’ The relevant question to ask yourself is: did they know the effect of chloroform or dichloromethane? Did they believe chloroform or dichloromethane would knock out a person? Whether applying dichloromethane to Ah J amounted to causing grievous bodily harm. Whether injecting alcohol into Ah J amounted to causing grievous bodily harm. These are relevant questions.

If after considering the evidence your conclusion is, ‘Yes, there is an intention to kill or to cause grievous bodily harm,’ then go to step 3. If you say, ‘There is no intention to kill and to cause grievous bodily harm,’ then go to part (b). I will explain part (b) later. So at this stage, your answer is, ‘There was a joint enterprise. There was intention to kill or to cause grievous bodily harm.’ Step 3, whether these acts caused the death of Ah J. That is the application of dichloromethane and the injection of alcohol, whether these acts caused the death of Ah J. In other words, did Ah J die on the mattress? Right?

Now, one point you need to be clear. Although the injection of alcohol by D1 could not have caused Ah J’s death because this is the evidence of Dr Poon and also the evidence of Dr Beh, but if there is a joint enterprise, D1 would still be liable given that Ah J’s death was caused by the application of dichloromethane. This is the principle of joint enterprise. Right?

So another point to note is each defendant might have played his own role and performed the acts in furtherance of the joint enterprise. It is sufficient that the combination of the acts caused the death. Right? So having considered the evidence, you know what were the roles of D1, D2 and D3. Right? So you consider whether their acts caused the death. If your answer is ‘Yes’, then you go to step 4. If your answer is ‘No’, you go to step 5.

Step 4, if you are sure that Ah J died on the mattress, all defendants would be guilty of murder because there is joint enterprise, there was intention to kill or intention to cause grievous bodily harm and their conduct in the joint enterprise in combination caused the death of Ah J, so they are guilty of murder.

If you are not sure that Ah J died on the mattress, you then consider the following principle. Right? Now, the principle is this. Listen carefully in paragraph (a) there. When a person intends to kill or inflict grievous bodily harm upon another person and in doing so renders the other person unconscious and then, thinking that person dead, disposes of the body in a way which causes the person’s death, the person disposing of the body will be guilty of murder if the act rendering the person unconscious and the act of disposal of the body can properly be viewed as part of one continuous course of conduct or a sufficiently connected series of events.

Now, in simple terms, if you are not sure Ah J had died on the mattress but what they subsequently did in moving Ah J to the toilet at the lower level made him die, right? If the moving of Ah J to the toilet is a continuous course of conduct, that is from the time what happened at the mattress until the time in the toilet, if it is a continuous conduct, then all defendants would still be guilty of murder.

I explain again. If the defendants mistakenly thought Ah J had died on the mattress, so they drag him along, they do blood-letting and all sorts of things, and it was due to all this that Ah J subsequently died in the toilet, right, then if the subsequent conduct and the initial conduct is part and the same course, continuous course of conduct, then all defendants are liable of murder, all right?

Now, paragraph (b), having applied dichloromethane and injection of alcohol on Ah J, the defendants mistook that Ah J was dead. In the course of handling the body of Ah J, they then caused the death of Ah J by different acts, dropping him, blood-letting, the pillowcase covering his head, all defendants might still be liable of murder. If the handling of the body was part of the series of acts starting from the application of dichloromethane and injection of alcohol and if the handling of the corpse was for concealment of their conduct, this would be very strong evidence of a continuous course of conduct or a series of conduct, right? So if you think the acts of disposal of Ah J’s body is part of a continuous course of conduct, each defendant would still be liable of murder.

Now, I go to part (b). Alternative verdict is manslaughter, right? Now, if at the end of the day you think there was a joint enterprise but you do not think there was an intention to kill and there was no intention to cause grievous bodily harm, then you consider manslaughter, right? There was a joint enterprise but there was no intention to kill and no intention to cause grievous bodily harm, right? Then you consider manslaughter.

…

Now, part (c). In case after considering all evidence you find there is no joint enterprise, that is no agreement or common intention, then you decide, you go through the following steps. You first decide the conduct of each defendant according to the evidence individually. Then you decide their individual intention. If there was intent to kill or cause grievous bodily harm and the conduct caused the death of Ah J, then that defendant is guilty of murder. Now, this is particularly applicable to the situation of D2 and D3 because depending whether you find D2 was the person who applied the dichloromethane or it was D3 who applied the dichloromethane.

…

Now I go to the position of D1. If there was no joint enterprise, D1’s conduct was just injecting alcohol into Ah J, right, no joint enterprise, and this conduct did not cause the death of Ah J, so D1 could not be guilty of either murder or manslaughter. But you should still consider whether injecting alcohol into Ah J amounted to causing grievous bodily harm, whether D1 was intentional to inject the alcohol. If the answer to both questions is ‘Yes’, D1 is guilty of causing grievous bodily harm with intent, contrary to section 17 of the Offences Against the Person Ordinance. So he caused grievous bodily harm to Ah J, although his conduct did not kill Ah J, right?

If you find it was not grievous bodily harm, then D1 is still guilty of assault occasioning actual bodily harm(‘AOABH’), contrary to section 39. The difference between the two charges is that for causing grievous bodily harm with intent, there must be grievous bodily harm and there must be intent to cause the grievous bodily harm. For assault occasioning actual bodily harm, there should be an assault and there was actual bodily harm. An assault in law is the use of violence or threat of violence without the consent of the victim. So by injecting alcohol into Ah J, it must be an assault, right?

Now, there is one complication in D1’s case.  [the judge then dealt with the issue of duress in the following paragraphs, the direction in respect of which the applicant does not raise any complaint and it is therefore not necessary to repeat it here.]”

19.  Of the relevance of expert evidence in the present case, the judge told the jury that:^[25]

“The expert evidence only relates to part of the case. In arriving at the verdict, you must consider the whole, right? Now, Dr Poon’s evidence only relates to the cause of death, right? And Dr Beh’s evidence only relates to whether injection of alcohol could cause death in this case. So you must consider everything together with the expert evidence.”

20.  Further, it is clear from the judge’s direction that the applicant’s injections of alcohol into the deceased could not have caused death^[26] and that if the jury was not satisfied that there was a joint enterprise to use dichloromethane on the deceased, the applicant’s own acts would not make him guilty of murder or manslaughter^[27]. 

21.  Before leaving the judge’s summing-up, for the purpose of Ground 3 (infra), it is relevant to highlight the judge’s direction on the “good character” of D2 and D3:^[28]

“… D2 and D3 have a clear record and a person of good character before this incident. You should take this into account in considering whether you believe his evidence.”

22.  In respect of the applicant, the judge did not give such a direction but when summarising the applicant’s evidence to the jury, the judge pointed out that “he has no criminal record”^[29] and “D1 admitted he was dishonest and unscrupulous”^[30].

23.  The jury deliberated for 3 days.  When the court re-convened on the morning of 13 December 2019, the jury raised two questions which the judge answered as follows:^[31]

“The first question you asked, ‘Does joint enterprise mean … defendants must know both the application of dichloromethane and injection of alcohol into J?’ Right? Our answer is this. The crux of a joint enterprise is a common intent or an agreement. A joint enterprise in this present case means the application of dichloromethane and/or the injection of alcohol into J. You must base your finding on the evidence. Right? That is the answer.

The second question you asked is, ‘Does an agreement on [or] common intention to knock J out imply joint enterprise?’ Our answer is an agreement or common intention to knock Ah J out is a joint enterprise. Again, you must base your findings on the evidence.”

Grounds of Appeal

24.  By his Perfected Grounds of Appeal filed on 14 September 2020, Mr Richard Donald, counsel for the applicant here but not below, advanced four grounds of appeal:

(1)  The jury’s verdict of guilty of murder for the applicant was inconsistent with their verdicts of not guilty of murder but guilty of manslaughter for both D2 and D3. 

(2)  The judge erred in exercising his discretion to allow D2’s application to edit out the applicant’s VRIs which attacked D2’s character, thereby unfairly inhibiting the defence of the applicant. 

(3)  The judge failed to direct the jury on the applicant’s clear record. 

(4)  The judge failed to fairly draw to the jury’s attention the expert evidence of the forensic pathologist called on behalf of the applicant. 

Applicant and Respondent’s Submissions

25.  By Ground 1, Mr Donald submitted that, on the basis of individual liability, the conduct of the applicant as demonstrated by the evidence could not have amounted to murder. Accordingly, he could only have been convicted of murder on the basis of joint enterprise which would then necessarily involve a similar conviction of murder in respect of D2 and D3.  Since both D2 and D3 were only found guilty of manslaughter, Mr Donald submitted that there was an inherent inconsistency in the verdicts of the jury who found the applicant guilty of murder, but D2 and D3 guilty of manslaughter only. 

26.  Mr Derek Lai, with him Ms Jacqueline Chan, for the respondent, however, submitted that it was neither impossible nor improper for the jury to have reached different verdicts for different participants in this joint enterprise.  Mr Lai argued, for example, the fact that both D2 and D3 ran a cut-throat defence might have rendered the jury unsure of their individual state of mind at the time and hence acquitted them of murder.  On the other hand, there was sufficient evidence for the jury to find that the applicant participated in the joint enterprise with the intention to kill the deceased. 

27.  In respect of the editing of the applicant’s VRIs, Mr Donald complained that the judge made a ruling which was entirely beneficial to D2, yet wholly prejudicial to the applicant and against his wishes, hence unfair to him.  In particular, Mr Donald said that matters relating to D2’s prior knowledge and experience in using substances similar to dichloromethane were relevant to both the applicant’s defence and matters of credibility.  While accepting that trial counsel for the applicant, when asked by the judge in relation to the application for editing, refused to disclose the applicant’s defence, Mr Donald emphasised that the applicant has a right not to disclose his defence before trial. 

28.  On the other hand, Mr Lai submitted that the judge rightly exercised his discretion to order parts of the applicant’s VRIs to be edited as those parts were not relevant to the applicant’s defence.  There was no evidence to suggest that the applicant had injected dichloromethane into the deceased; quite the contrary, when asked about buying dichloromethane, the applicant only said that he had previously used the substance for sticking together acrylic bookshelves and that it was D2’s idea that dichloromethane should be bought.  Mr Lai further submitted that the issue of credibility is more apparent than real because D2’s previous misdeeds were brought out in the evidence of both the applicant and D3; and that D2 had been subjected to cross-examination as to his bad character by counsel for D3. 

29.  In respect of Ground 3, while accepting that the judge had no general duty to include a good character direction in his summing-up, Mr Donald complained that the judge was unfair to the applicant because D2 and D3 benefited from such a direction whereas the applicant did not, although all three of them had no previous convictions. 

30.  Mr Lai, however, emphasised that the personal background of the applicant was very different from that of D2 and D3 in that, in his own evidence, the applicant admitted making money through unscrupulous means.  In the circumstances, it would be an affront to common sense if the jury were to be directed as to the good character of the applicant.  Mr Lai added that, in any event, the judge had discussed with counsel about his proposed directions and no complaint was made at that time. 

31.  For the final Ground 4, Mr Donald’s complaint was that there was no mentioning in the judge’s summing-up as to Dr Beh’s expert report which stated that the injection of alcohol would not have caused the death of the deceased.  This omission, it was said, was particularly damaging because Dr Poon said he was unable to tell the precise cause of death and therefore, there was a risk that the jury might have wrongly considered that the injection of alcohol could have been the cause of death. 

32.  Mr Lai disagreed and pointed to the summing-up where the judge directed the jury that it was both Dr Poon and Dr Beh’s evidence that the injection of alcohol could not have caused the death of the deceased. 

Discussion

Ground 1 (Inconsistent Verdicts)

33.  In HKSAR v CT[32], the Court of Final Appeal observed that:[33]

“31. In R v Fanning the English Court of Appeal reaffirmed, with respect to an argument on an appeal that the jury had returned inconsistent verdicts, the requirement associated with remarks of Devlin J (as he then was) in R v Stone and their adoption by the Court of Appeal in R v Durante. The criterion is that no reasonable jury which had applied their minds properly to the facts of the case could have returned the verdict called into question. … (emphasis added)

32. In Hong Kong, R v Durante was adopted in R v Cheng Man To, as explained by the Court of Appeal in HKSAR v Wu Wing Hong.  It follows from the disposition of the present appeal that this remains the position in Hong Kong …”

34.  Mr Donald accepted that for a complaint on factual inconsistency, the above italicised part is the test to be applied. He further accepted that the burden is on the applicant to show that the verdicts are in fact inconsistent and that the inconsistency is such that an appellate court could not permit it to stand. 

35.  In seeking to demonstrate to this court that the guilty verdict of the applicant was in fact inconsistent with the not guilty verdict (of murder) of D2 and D3, Mr Donald set out at paragraph 35 of the applicant’s written submissions the following:

“35. If the jury followed the Question Trail and the learned Judge’s direction, the only available verdicts able to be reached in relation to the Applicant were:-

35.1 Murder: on the basis of a joint enterprise and that J died on the mattress;

35.2 Murder: on the basis of a joint enterprise and that J died through the disposal of J’s body as part of one continuous course;

35.3 Manslaughter: on the basis of a joint enterprise and that the application of DCH and/or injection of alcohol was an unlawful act, intentionally and dangerously committed to cause the death of J;

35.4 Manslaughter: on the basis of a joint enterprise and that the application of DCH and/or injection of alcohol was an unlawful act, intentionally and dangerously committed but the acts in the disposal of J’s body caused J’s death;

35.5 GBH with intent: on the basis of no joint enterprise and that the injection of alcohol was intentional and amounted to GBH;

35.6 AOABH: on the basis of no joint enterprise, and that the injection of alcohol was intentional but did not amount to GBH.”

36.  Based on the above, Mr Donald argued that there was inherent inconsistency in the jury’s verdicts “by finding the Applicant guilty of murder despite not being in a joint enterprise or causing death.”[34] (emphasis added)

37.  This submission assumes that in finding the applicant, but not D2 and D3, guilty of murder, the jury must have rejected the existence of a joint enterprise.  However, is this a correct assumption?  

38.  In the Question Trail provided to the jury, the first question was couched in these terms: “Was there a joint enterprise – agreement or common intention – to apply DCH and inject alcohol into J?”  In other words, the jury was not directed to consider in this first question whether there was a joint enterprise to murder the deceased by applying DCH and injecting alcohol.  The joint enterprise raised for consideration by the jury, as a starting point, was simply a joint enterprise to apply the substances, not a general joint enterprise to murder. 

39.  Then, according to the judge’s directions, if the jury was sure that there was such a joint enterprise, they then had to consider the defendants’ intentions in doing so: “What was the intention of the defendants in applying DCH and injecting alcohol?  Was there an intention to kill or an intention to cause GBH?”.  In this connection, the judge further directed the jury in these terms after he had explained the Question Trail:[35]

“But remember, whenever you decide the liability of a defendant, apart from his role, you must consider his intention, all right, because a defendant in a joint enterprise might have different intention, right? So you must consider his intention before you make up your mind.”

40.  What is clear from the above is that the jury had been directed that even if they were sure that there was a joint enterprise to apply DCH and inject alcohol (joint enterprise to administer the substances), they could not jump to the conclusion that there was a joint enterprise to murder.  Instead, the jury was to go on to separately consider the individual intention of each of the defendants when taking part in the joint enterprise to administer the substances. 

41.  Finally, the jury was instructed that if they were not even sure that there was such a joint enterprise to administer the substances, they had to go to Part C of the Question Trail which asked them to “decide the conduct of each defendant according to the evidence individually” and “decide their individual intention”.  If it was proved that a particular defendant had the intention to kill or cause GBH and his conduct caused the death of the deceased, then that defendant should be found guilty of murder. 

42.  Thus, the assumption made in Mr Donald’s complaint is not borne out.  The finding of there being a joint enterprise to administer the substances does not necessarily entail a guilty verdict in respect of the murder charge against all the participants in that joint enterprise. 

43.  In our view, the judge’s direction accords with the established principles and is a correct application of the principles to the evidence in this case.  It was pointed out in Sze Kwan Lung & Others v HKSAR[36] that, in a joint enterprise situation, one participant may be convicted of murder even though the actual killer is acquitted outright or convicted of manslaughter.  The Court of Final Appeal also referred to the decision of the High Court of Australia in Osland v R[37] and said:[38]

“21. In Osland v R (1998) 197 CLR 316, Mrs Osland and her son were jointly charged with the murder of her husband who was the son’s step-father. The prosecution’s case was that they had entered into a plan to murder the deceased. It was not in dispute that Mrs Osland had mixed sedatives into the deceased’s dinner and that the deceased was killed as the result of a blow struck by the son in Mrs Osland’s presence while the deceased was asleep. Each accused relied on self-defence and provocation. The jury convicted Mrs Osland of murder. But they were unable to reach a verdict in respect of the son (who was acquitted when tried again). The High Court of Australia (McHugh, Kirby and Callinan JJ, Gaudron and Gummow JJ dissenting) held that the conviction of Mrs Osland for murder was not inconsistent with the jury’s failure to reach a verdict in respect of the son. At p344 McHugh J cited the passage from Lord Mackay’s speech in R v Howe [1987] AC 417 referred to above, and said:

This statement is conclusive in England, at all events, in showing that it is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert.  If the latter person has the relevant mens rea, he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene.  It is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she has a defence such as lack of mens rea, self-defence, provocation, duress or insanity.”

44.  More recently in HKSAR v Chan Kam Shing[39], the Court of Final Appeal, when describing the differences between traditional accessorial liability and joint enterprise, made these observations:[40]

“33. The doctrine of joint criminal enterprise is distinct from the traditional rules on accessorial liability, although there are situations where those rules may overlap. It is important to note – since consequences flow from this – that under the doctrine of joint criminal enterprise, liability is not derivate: it is not dependent on proving that one person (the principal) committed the main offence and that another (the accomplice) assisted or encouraged its commission. Liability is independently based on each defendant’s participation in a joint criminal enterprise with the requisite mental state to constitute the offence relevant to the defendant in question.

34. Sir Robin Cooke noted the distinction between the doctrines in Chan Wing Siu v R, contrasting accessorial liability by ‘aiding, abetting, counselling, inciting or procuring’ the primary offence with complicity based on participating in a ‘common unlawful enterprise’ in which a crime is ‘foreseen as a possible incident of the common unlawful enterprise’.

…

37. In R v Stewart, Hobhouse LJ pointed out that one consequence of the distinction, flowing from the independent rather than derivative liability of participants in a joint criminal enterprise, is that under the joint criminal enterprise doctrine, one defendant may be guilty of manslaughter while a co-defendant is convicted of murder in the same case:

‘The allegation that a defendant took part in the execution of a crime as a joint enterprise is not the same as an allegation that he aided, abetted, counselled or procured the commission of that crime.  A person who is a mere aider or abettor, etc, is truly a secondary party to the commission of whatever crime it is that the principal has committed although he may be charged as a principal.  If the principal has committed the crime of murder, the liability of the secondary party can only be liability for aiding and abetting murder.  In contrast, where the allegation is joint enterprise, the allegation is that one defendant participated in the criminal act of another.  This is a different principle.  It renders each of the parties to a joint enterprise criminally liable for the acts done in the course of carrying out that joint enterprise.  Where the criminal liability of any given defendant depends upon the further proof that he had a certain state of mind, that state of mind must be proved against that defendant.  Even though several defendants may, as a result of having engaged in a joint enterprise, be each criminally responsible for the criminal act of one of those defendants done in the course of carrying out the joint enterprise, their individual criminal responsibility will, in such a case, depend upon what individual state of mind or intention has been proved against them.  Thus, each may be a party to the unlawful act which caused the victim’s death.  But one may have had the intent either to kill him or to cause him serious harm and be guilty of murder, whereas another may not have had that intent and may be guilty only of manslaughter.’”

45.  In the circumstances, Mr Donald’s complaint that “there was inherent inconsistency in the jury’s verdicts by finding the applicant guilty of murder despite not being in a joint enterprise and causing death” would seem, with respect, to have resulted from a misunderstanding of the effect of the judge’s directions. Contrary to Mr Donald’s submission, the fact that D2 and D3 were not found guilty of murder did not mean that the jury must have found that the joint enterprise to administer the substances was not proved.  According to the judge’s directions, the existence of such a joint enterprise and the requisite intent for murder had to be considered separately.  The two were not bound up together. 

46.  The jury was entitled, after considering the evidence, to find that there was a joint enterprise to administer the substances but that the defendants’ individual intentions in taking part in the enterprise differed.  Thus, the manslaughter convictions of D2 and D3 could not be relied upon to suggest that the jury must have found the joint enterprise to administer the substances non-existent.  Rather, it could have been the result of the jury finding the applicant to have had the intent to kill or to cause GBH when participating in that joint enterprise whereas, for D2 and D3, the jury could not be sure of such an intent, although they were sure that these two defendants also participated in the joint enterprise to administer the substances. 

47.  We agree with Mr Lai that on the evidence as a whole in the present case, the jury was perfectly entitled to reach the conclusion that the applicant was a party to the joint enterprise to administer the substances; and that, unlike D2 and D3, he had the intent to kill or cause GBH to the deceased because there was evidence from PW1 that the deceased was reportedly going to get HK$5 million from the applicant on the day of the killing and it was the applicant who initiated the discussion of killing the deceased for reward[41]. The applicant himself also said that there was some disagreement on money with the deceased and that on 4 March, the deceased wanted to borrow money from him. Further, there were IOUs which would appear to relate to loans taken out by the applicant from the deceased and which the applicant tried to explain when giving evidence.[42] When summing-up the case, the judge directed the jury in these terms:[43]

“Now motive. There is evidence in this trial that the defendants might have a plan to kill Ah J for the reward of US$30 million from the group, There. There is also evidence that they wanted to rob J only. There is evidence that Ah J was supposed to get a cashier order of HK$5 million from D1 on 4 March. There is evidence that D1 wanted to play a joke on Ah J by locking Ah J out and took his properties because D1 suspected that Ah J was trying to cheat him using the Australian project. So there are alternative motives in this case.

The evidence of motive is not essential to prove an offence of murder. It is only a piece of circumstantial evidence based on which you may draw an inference as to intention. … Of course, if there is clear evidence of motive, the inference may be easier to be drawn. If there is unclear evidence, the inference may be more difficult and you will need to consider wider circumstantial evidence, right? But the important point is motive is not an element of the offence.

…

… Now, at the end of the day, if in the absence of any clear motive you cannot be sure about the intention of the defendants, then there is a doubt. You may consider acquitting. …”

48.  Moreover, on the evidence adduced, the applicant could properly be regarded by the jury as the leader of the gang.  When the applicant testified, he himself admitted providing accommodation and food to D2 and D3, and at times, also granting loans to D2.^[44] When D2 gave evidence, he said he trusted the applicant and would not think of offending the applicant, although he insisted that he was not relying on the applicant^[45].  Finally, for D3, he said he admired the applicant, thinking that he was rich and influential.  He also described the applicant as the leader and that everyone depended on the applicant financially.^[46]  Therefore, there was nothing unreasonable or illogical if the jury had come to a finding that the applicant was the mastermind in overall control of the events which took place on 4 March. If a distinction was to be drawn between the applicant and the other two defendants, his “leader” status and the suggested motive would be a solid foundation for the jury to distinguish the applicant from D2 and D3. 

49.  It should also be noted that it was the applicant who brought the deceased to the flat and prior to that, he was actively involved in searching for a place to kill the deceased; arranging for the purchase of items like ropes, dichloromethane and bags; and conducting the testing of the odour of dichloromethane.  In addition, the applicant quickly responded to D2 and/or D3’s summoning for assistance by carrying downstairs the syringe and alcohol,^[47] and subsequently, he also played a significant part in the disposal of the deceased’s body. 

50.  In view of the totality of the evidence adduced and the judge’s directions, we do not agree that the jury’s conclusion that the applicant was guilty of murder whereas D2 and D3 were only guilty of manslaughter was one which “no reasonable jury which had applied their minds properly to the facts of the case could have returned”.  Quite the contrary, it was a conclusion which the jury, having examined the evidence and faithfully followed the judge’s directions, was perfectly entitled to reach. 

Ground 2 (the redacted VRIs)

51.  In R v Tan Siew Gim^[48], the Privy Council referred to Lobban v R^[49] and stated that where the prosecution put in evidence a mixed statement of a defendant, containing admissions as well as explanations of an exculpatory nature:^[50]  

“…the court had no discretion to edit out part of such a statement on the ground that it was prejudicial to a co-accused, but must admit the statement in its entirety, provided that the prejudicial part was relevant for the defence of the maker of it. Lord Steyn, giving the advice of the Board, said:

‘The discretionary power to exclude relevant evidence applies only to evidence on which the prosecution proposes to rely. It exists to ensure a fair trial to the defendant, or, in a joint trial, to each defendant without seeking to differentiate between the quality of justice afforded to each defendant. It does not extend to the exculpatory part of a “mixed statement” on which a co-defendant wishes to rely.’”

52.  In the present case, the judge had this principle in mind but took the view that the redacted portions of the applicant’s VRIs were irrelevant to any issue at trial, and when giving the ruling, he said,

“D1 maintains that he does not want to disclose his defence at this stage. D3, after reconsideration, agreed that those allegations of offences be deleted. In my view, those bare allegations of unrelated past incidents of offences are irrelevant having heard submissions by counsel. …”^[51]

53.  Given the stance of the applicant and that there was, at the time, nothing to indicate that the redacted parts were relevant to the applicant’s defence or his general credibility, we do not think that the judge could be criticised for making the now impugned ruling.  In any event, we accept the respondent’s submission that insofar as the presence of syringes in the flat is concerned, the applicant told the jury that he required them to inject steroid so that he could improve his concentration and muscle power.^[52]  In respect of the use of DCH on the deceased, it was not a live issue at all and also, it was never suggested that the applicant himself had anything to do with the DCH.  In these circumstances, the redacted parts could not have assisted the applicant in his case. 

54.  Although Mr Donald further suggested that the redacted portions were relevant to “matters of credibility”, it is unclear what those matters were.  If by “matters of credibility”, Mr Donald was saying that the redacted parts would help to call D2’s character into question, then as submitted by Mr Lai, the jury had already got the evidence from the applicant and D3 as to D2’s triad association; theft of properties; and using “knockout drops”.^[53]

55.  In short, when analysed in its proper context, we do not agree that there was any prejudice caused to the applicant in respect of the judge’s ruling to redact certain parts of his VRIs. 

Ground 3 (the good character direction)

56.  This ground can be dealt with very shortly.  We should first reiterate that it is always a matter of discretion as to how a trial judge is to approach the question of good character which best suits the circumstances of the case and that such a discretion is a wide one.^[54] In the present case, the applicant admitted making money through unscrupulous and dishonest means, not just on a one-off basis but over a period of time.  The fact that this admission came directly from the mouth of the applicant and was put clearly and squarely before the jury must realistically have had an impact, irrespective of the extent, on the jury as to the character of the applicant.  If, with that impact already operating on the minds of the jury, they were then directed that the applicant was more credible and less likely than a person with a criminal record to commit an offence, it would not only confuse them but would be an affront to common sense.  The jury would inevitably question why they were directed to consider the applicant’s credibility and propensity when he himself had admitted carrying out dishonest acts which were clearly of a criminal nature.  

57.  Moreover, the question as to how to direct the jury on the “good character” of the defendants was raised for discussion with counsel and the direction finally given was the result of such a discussion.  At the time, counsel for the applicant not only did not put up any objection, but in fact said, “That is very generous”. 

58.  This ground is simply not arguable. 

Ground 4 (the defence expert’s report)

59.  Again, this ground can be disposed of shortly.  The judge directed the jury in these terms when dealing with the expert evidence:

“The expert evidence only relates to part of the case. In arriving at the verdict, you must consider the whole, right? Now, Dr Poon’s evidence only relates to the cause of death, right? And Dr Beh’s evidence only relates to whether injection of alcohol could cause death (of the deceased) in this case. So you must consider everything together with the expert evidence. Right?”[55]

“Now, one point you need to be clear. Although the injection of alcohol by D1 could not have caused Ah J’s death because this is the evidence of Dr Poon and also the evidence of Dr Beh, but if there is a joint enterprise, D1 would still be liable given that Ah J’s death was caused by the application of dichloromethane. This is the principle of joint enterprise.”[56]

“Now I go to the position of D1. It there was no joint enterprise, D1’s conduct was just injecting alcohol into Ah J, right, no joint enterprise, and this conduct did not cause the death of Ah J, so D1 could not be guilty of either murder or manslaughter.”[57]

60.  In the circumstances, there is obviously no room for Mr Donald to suggest that “there was a real risk that the failure by the learned Judge to draw to the jury’s attention the evidence of Dr Beh in conjunction with Dr Poon meant that there was a risk the jury could have still considered the injection of alcohol by the Applicant to be a cause of death”. 

Conclusion

61.  Having considered the grounds of appeal advanced on behalf of the applicant, we refused to grant leave in respect of all the grounds and the appeal was dismissed accordingly.