HKSAR v. LUI TSUN SUM AND OTHERS

[English Translation – 英譯本]

CACC 331/2018

[2020] HKCA 516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 331 OF 2018

(ON APPEAL FROM DCCC 54 OF 2018)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court):

A.  Introduction

1.  This is an appeal from the District Court.  The three applicants (A1, A2, A3)  are the first, second and fourth defendants in the original trial (D1, D2 and D4).  They were convicted after trial on the following four charges:

Charge (1)  – “Acting as members of a triad society”
(A1, A2, A3)

Charge (2)  – “Claiming to be a member of a triad society”
(A1)

Charge (3)  – “Acting as members of a triad society”
(A3)

Charge (4)  – “Claiming to be a member of a triad society”
(A3)

The trial judge (Judge Sham)  put them all on probation for 24 months. The three appellants now apply for leave to appeal against conviction[1].

B.  The prosecution case

2.  The prosecution alleged that the four defendants (A1, A2, A3 and the third defendant “D3” who pleaded guilty and so did not stand trial), aged between 13 and 17, went into two adjacent shops at On Tat Shopping Centre, Sau Mau Ping to carry out the following illegal acts on 20 November 2017.

B.1  The household goods shop

3.  The first shop was a household goods shop where all four defendants had entered[2]：

“5. They all entered the household goods shop first, then found the female shop owner and told her that they were ‘Tsim Sun’ (meaning Sun Yee On Triad Society)  and the premises were ‘watched over’ by them; and they left the shop owner a note written with ‘Kut Gor’ and a telephone number, telling her that if anything happened in the future, she might call that number to look for ‘Kut Gor’ (and indicated that ‘D3’ was Kut Gor), and they would come over to fix the matter.”

4.  Particulars of the conversation[3]:

“On that day, four defendants entered the shop. It was mainly ‘A3’ who talked with her.

‘A3’ said : ‘Our boss talked and agreed with your boss that the premises were to be watched over by them. If someone comes over to make troubles, give Kut Gor a call.’

Female shop owner asked : ‘Which company? Which faction are you people from?’

‘A1’ answered : ‘Tsim Sun’

Female shop owner asked : ‘What is Tsim Sun?’

‘A1’ said : ‘You women know nothing.’

Someone among them asked : ‘Do you know what collection of Tor Tei is?’

The female shop owner indicated that she did not know.

Female shop owner asked : ‘Who is Kut Gor?’

‘A3’ pointed at ‘D3’ (As ‘D3’ has pleaded guilty, he is not present at this hearing)

Female shop owner asked : ‘If anything happens and she makes the call, will anyone come over?’

‘A3’ said : ‘Will come over, will help you people fix it.’

Meanwhile, the female shop owner gave ‘A3’ a pen and a piece of paper to put down Kut Gor’s telephone number. They remained in the shop for about 10 minutes and then left the shop.”

5.  The above formed the factual basis for Charge (1), the “acting” charge for short (against the three applicants (and D3[4]))  and Charge (2), the “claiming” charge for short (against A1).  The triad connotations of “Tsim Sun” (that is Tsim Sha Tsui Sun Yee On), “watch over the premises” and “Tor Tei” are facts admitted by the prosecution and the defence.

B.2  The hardware shop

6.  The second shop was a hardware shop where only A3 and D3 had entered[5]:

“6. After leaving the household goods shop, ‘D3’ and ‘A3’ went into the adjacent hardware shop, related the purpose of their visit to the male shop owner in the same manner and tone, and left a note written with ‘Kut Gor’ and a telephone number (As the investigating police officer(s)  there told the shop owner that the note was the same as the one seized from the household goods shop and did not seize it as exhibit, the male shop owner threw it away after the incident. Therefore, only the note from the household goods shop was available as exhibit in the present case).”

7.  The specific details concerned are[6]:

“At around 1 pm on that day, when the male shop owner was outside, he received a call from his colleague telling him that someone was looking for him, he then hurried back to the shop. Upon arrival, he saw ‘D3’ and ‘A3’.

‘A3’ said to him : ‘I am Tor Tei, we are Tsim Sun, if you have any problems, I will leave you a telephone number for calling Kut Gor.’

The shop owner gave ‘A3’ a piece of paper to write down the telephone number, then they left.

‘D3’ did not say anything, he just nodded his head.

The shop owner asked : ‘What is Tsim Sun?’

The shop owner did not report the matter to the police but the police arrived in a while and asked if anyone had come over to collect Tor Tei. Then the shop owner told the police what had happened shortly before.

The shop owner once told the police that he felt that the defendants were being playful but he also thought they were trying to collect protection fee.

8.  The above formed the factual basis for Charge (3), the “acting” charge (against A3 (and D3[7]))  and Charge (4), the “claiming” charge (against A3). Similarly, the triad connotations of “Tsim Sun” and “Tor Tei” were not in dispute.

B.3  The amended charges

9.  As shown in footnotes 4 and 7, the current Charges (1)  and (3)  were only amended from the original “conspiracy to blackmail” charges to the “acting” charges after the commencement of the trial.

10.  The trial judge later explained that the substitution of “conspiracy to blackmail” by “acting” in fact “resulted from the defence’s reply to the question of the court”. He said[8], “The court asked the defence that if the prosecution case was accepted, what other conclusions could be drawn apart from the inference that [the defendants] had a prior agreement of conspiracy to blackmail. The defence replied that it could be acting as members of a triad society.”

11.  As far as the specific time is concerned, it is shown from the court record that the aforesaid conversation took place on the last day of the trial (13 September 2018)  at the stage of the defence closing submission[9], and after that  the court adjourned the case for 8 days for verdict. However：

21^st September

On the scheduled date of verdict, the court indicated that it was considering to amend Charges (1)  and (3)  to charges of “acting”, and not ready to give a verdict. The defence was concerned and unanimously asked for more time to reply. The court adjourned the case for 3 days.

24^th September

Counsel for the defence made submissions and objected unanimously to the amendment of the charges but it was rejected by the court.  With the reasons for the ruling reserved, the court gave the following directions: the prosecution shall prepare a new charge sheet where Charges (1)  and (3)  are to be amended to the “acting” charges; fresh plea shall be taken from the defence on the day the case resumes (15 days later); the defence may, if necessary, apply to recall the prosecution witnesses, make half-way submission again and/or re-open the defence case.

9^th October

Fresh plea was taken from the three applicants on the amended charges, and they all pleaded not guilty. The defence neither made any relevant applications nor withdrew any agreed facts. The three applicants maintained the same position of giving no evidence and calling no witnesses but only had their counsel made the closing submission again. The court adjourned the case for one day for verdict.  

10^th October

The three applicants were found guilty, and the case was adjourned for sentence.

C. The defence’s position

C.1  Before the amendment of the charges

12.  As mentioned above, the three applicants maintained the same position of giving no evidence and calling no witnesses after the amendment of the charges. In other words, after the amendment, they adopted the same defence tactic as before.  The trial judge said[10]：

“10. After the close of the prosecution case, the defence made a halfway submission only on ‘doli incapax’, asking the court to stop the hearing and rule that there was no case to answer for all defendants, but the court eventually ruled that there was prima facie evidence in respect of all charges. All defendants chose not to give evidence or call any witnesses.”

13.  Of course, to complete their line of defence, the three applicants put their respective cases to the prosecution witnesses during the cross-examination:

At the household goods shop

A1 –   never said the words “Tsim Sun”, and it was A3 who said so.  He had told A3 “not to cause troubles and to go away quickly”[11].

A2 –   did not say a word, did not do anything[12].

A3 –   did say that “the premises were watched over by us” and pointed at D3 and said “He is Kut Gor, may call him if anything happens” but never said “our boss talked and agreed with your boss”. No one at the scene asked the female shop owner if she “knew what collection of Tor Tei was”.   

At the hardware shop

A3 –   only said that “these premises were watched over by us”, and wrote down a name and a telephone number and said “call him if anything happens”. He never said he was “Tor Tei”. “Tsim Sun” was said by D3 instead of him[13].

14.  At the end of the case, to sum up the written[14] and oral submissions[15] of all counsel, they focused mainly on two points (the first point was a repetition of the halfway submission):

(1)  The three applicants were all under 14 years old. The prosecution had to rebut the legal presumption of doli incapax but failed to do so.

(2)  Even if the prosecution witnesses were honest, they were unreliable. Even if they were found honest and reliable, their evidence was insufficient for the court to rule that there was an agreement among the applicants to blackmail. Blackmail was not the only reasonable inference that could be drawn.

C.2  After the amendment of the charges

15.  As mentioned above, after fresh plea was taken in respect of the new charges, the defence did not adduce any evidence.  The contents of the final submission can be summarized as follows[16]：

1.  The prosecution failed to successfully rebut the legal presumption of doli incapax in respect of all the applicants.

2.  In terms of evidence, the prosecution failed to prove that all applicants had committed the offences of “acting” because of the following reasons: the prosecution witnesses might have misheard them and/or there were discrepancies between the oral evidence in court and the written records, which were sufficient to show that they were unreliable; some of the applicants were merely present at the scene in silence or even just going in and  out; the charges were usually applied to a “display of manpower”, meaning to demonstrate the power by showing off the number of people, episodes similar to those in the present case had never appeared in other similar cases; without the assistance of an expert witness, the prosecution could not prove that the acts such as leaving a name and a telephone number were acts done in the capacity of members of a triad society.

D.  The verdict at trial

16.  The trial judge had focused on dealing with three questions in his written judgment.

D.1  The amendment of the charges

17.  Firstly, the reasons for amending Charges (1)  and (3)[17]:

“7. It is worth noting that in relation to the conduct of [the defendants] inside the shops, there is no evidence to show that they have made unwarranted demand of money from the shop owners, and the prosecution’s allegation is only that they had prior agreement for conspiracy to blackmail rather than they have committed the substantive blackmail offences inside the shops.

8. From the prosecution opening, it can be inferred that the basis on which the charges of conspiracy were brought is the evidence of the defendants’ admissions made respectively at the interviews with the police after they were arrested. They each made admission to the police of having prior agreement of going to the shops together to collect Tor Tei, a kind of protection fee. Someone even said the intended amount to be collected was $500 for each shop.

9. The defence challenges the voluntariness of the evidence of admissions concerned. After the trial had proceeded for some time, the prosecution, on their own initiative, asked the court not to accept the evidence concerned, but the trial carried on. In other words, the prosecution carried on with the proceedings for the conspiracy charges. It means that the prosecution asks the court to draw an inference on the basis of each defendant’s conduct in the shops that they must have prior agreement for conspiracy to blackmail.

……

11. If the prosecution case is accepted, from what was said and done inside the shops by each defendant, at half time, it can be inferred that they might have a prior agreement to blackmail; but at the end when the verdict is to be considered, the question will become whether such agreement is the only reasonable inference that can be drawn.”

18.  The trial judge was of the view that though the decision came late and it was opposed by the defence, it was still appropriate to make the amendments[18]:

“13. The reasons of objection by the defence included that the amendments were made just before the verdict would certainly cause irreparable injustice to the defence. Section 23 of the Criminal Procedure Ordinance, where the power to make amendment is conferred, stipulates:

‘Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.’

14. I agree that the sooner the amendments are made, the less injustice (if any)  will be caused. However, in the circumstances of the present case, I do not think the amendments would certainly cause injustice. As far as the evidence is concerned, basically there was no change of the evidence on which the prosecution relied, while the defence exercised their right of silence and produced no evidence. Hence, here is not the situation that the defence has given evidence and provided a version which becomes prejudicial to the defence as far as the amended charges are concerned.

15. Counsel for [A3] tried to point out that though no evidence was given, different tactics might have been used by counsel in putting their cases to the prosecution witnesses. For example, she had put to the hardware shop owner that it was [D3] instead of [A3] who claimed to be a triad member, she might not have done so had she faced with the amended charges. However, counsel also pointed out fairly that the shop owner disagreed and insisted that it was said by [A3].

16. From the defence point of view, regardless of whether it is the original conspiracy charges or the amended charges, the evidence basically remains unchanged. Hence, I do not see that injustice will be caused to the defence.’

19.  The possibility of amending the charges was in fact raised by the defence (see paragraph 10 above), which the trial judge did not find any problems either[19]:

“18. As for whether the amendment of the charges will cause any injustice to the defence, after careful consideration, I am in the end of the view that it will not because the point has never been used as a defence for any of the defendants. For example, [A1] and [A2] said they were merely present and they did not participate, and [A1] even said he had tried to persuade [A3] to leave and not to cause troubles; as for [A3], he admitted that he indicated to the shop owners that the premises were ‘watched over’ by them and wrote a name and a telephone number on the notes for the shop owners. Counsel for [A3] stated that such act did not amount to ‘acting as a member of a triad society’. Furthermore, the defence argument is at most a possibility only at the present stage.

19.  After consideration, at the end the charges were amended to ‘acting jointly as members of a triad society’ and the defence was given a chance to reconsider their defence tactics such as recalling any prosecution witnesses, adducing their own evidence, or withdrawing the admitted facts. All defendants pleaded not guilty to the amended charges. The defence neither made any requests nor adduced any evidence, their positions were the same as those before the charges were amended.”  

D.2  The capability of committing crime

20.  In respect of the issue of the capability of committing crime, the trial judge stated that[20]:

“24. For the three defendants who faced the trial, they were all teenagers aged 13 at the time of the offences. According to the law currently in force, a child under the age of 10 years is deemed to be doli incapax who cannot be guilty of any offence; whereas a child between 10 to 14 years of age (aged below 14)  is presumed to be doli incapax. The prosecution is required to produce evidence to show that they knew what they did were seriously wrong as opposed to being mere naughty.

……

60. At the time of the offences (the incident happened on 20 November 2017), the actual age of [A1] was around 13 years and 2 months, [A2] was 13 years and 10 months, while [A3] was 13 years and 9 months.

61. In the case of YHN, CACC 251/2014, the Court of Appeal explained the relevant legal principle. It is stated in paragraph 41 [sic] of the judgment that:

‘Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.’

62. The Court of Appeal referred to the evidence which could be taken into consideration in the case of YHN. It is stated in paragraph 42 of the judgment that:

‘In determining whether a child defendant has the guilty knowledge and in proving his awareness of the criminal acts he committed being seriously wrong, evidence such as the following would be relevant: a child defendant took a victim to a remote place where intervention by others was unlikely and subjected her to assault; the child defendant threatened the victim before the assault and used violence against her in the course of it, which brought obvious distress to the victim; a child defendant uttered threats to a victim after assaulting her in order to prevent disclosure; repetition of the same offence; the sexual sophistication the child defendant demonstrated and the sex education he had received at the time of committing the offence.’”

21.  Next, he dealt with the circumstances relating to A1 and A2[21]:

“63. First of all, in respect of [A1] and [A2], the prosecution called Mr Suen (transliteration), the Deputy School Principal of the school where they studied Form 1, to give evidence. He said the two defendants were admitted to Form 1 in 2016. When the two defendants reached Form 2, they respectively changed to other schools.

64. He said [A1] suffered from Hyperactivity Disorder and Attention Deficit. He had difficulty in behaving orderly in class. For example, he liked talking to his classmates and could not concentrate in his study. However, he did quite well in extra-curricular activities. He also went to the church gatherings at school.

65. As for [A2], he was a member of a ball game team at school who occasionally quarrelled with his teammates, but after being advised by his teacher, he knew how to get along with others. He also joined the Sea Cadet Corps at school.

66. In terms of academic performance, [A1] was slightly lagging behind while [A2] was doing quite well. If [A2] had worked harder, he could have got better grades. Mr Suen considered that they both had no problems in their ability of comprehension and intelligence.

67. Mr Suen stated that at school talks were held on moral education almost every week, teaching them matters such as how to get on with others and other civic duty, reminding them of being careful in making friends and developing good character; they also talked about the evilness of drugs and how to refuse drugs. The school did not specifically talk about triad society, but Mr Suen believed a Form 1 student should know that a triad society was not a good organization. School rules and regulations stated clearly that extortion was prohibited and Form 1 students knew full well about this school regulation. Mr Suen also believed that a Form 1 student should be well aware of the basic concept of observing the law.

68. [A1] and [A2] have received education in Hong Kong where they were taught to seek after the good. Although they have attained only junior secondary level, I believe they have the ability to distinguish good from evil. As far as [A3] is concerned, there is no evidence in this regard from the school.”

22.  Lastly, it was about all three applicants, A1, A2 and A3[22]:

“69. I’m of the view that the following evidence is also against A1, A2 and A3, showing that they knew their criminal acts were seriously wrong. For example, they knew about finding the right time to talk to the shop owners in the shops.

70. It can be seen from the video clips of the household goods shop that when the defendants went inside the shops, they did not talk to the owners right away. They only started their conversation after wandering for a long time inside the shop. Obviously there were others adult customers inside; there was in particular a middle aged man who stayed at the cashier counter for considerable time. Only after he had made payment and left that the defendants then gathered at the cashier counter and talked to the female shop owner. It is obvious that they did not want other adult customers to know what they were doing.

71. When they were inside the hardware shop, they told the employee to tell the boss to come back to the shop as someone was looking for him. When the boss was back, [A3] talked to the shop owner directly. At that time, there were also other adult customers inside the shop. It is obvious that they did not want to alarm the other customers at the shop, so they purposely asked for the boss and talked to him directly.

72. I am of the view that the evidence above shows that they knew what they did was seriously wrong, which is sufficient to rebut the presumption of doli incapax in respect of each defendant.”  

D.3  The general evidence

23.  Regarding the various challenges by the defence on the evidence, not only did the trial judge not neglect them in his analysis, he in fact dealt with them at great length[23]. At the end of the day, the trial judge found that both shop owners (the female owner of the household goods shop in particular)  were honest and reliable witnesses although their testimonies were not perfect. Based on all the evidence in the case, he found that all three applicants did take part in “acting as members of a triad society”.

E.  Grounds of appeal

24.  Both Mr Li and Mr Lee, counsel for A1 and A2 respectively and Ms Cheung, counsel for A3, were all counsel for the defence at the trial. The grounds of appeal they advanced overlap considerably. We will deal with the grounds involving the same area together as far as possible.  

E.1  Is the finding in respect of the capability of committing crime erroneous?

(Complaint)

25.  The Ground of Appeal (1)  submitted by all A1 to A3 is that the trial judge made a mistake on the issue of the capability of committing crime. This complaint is applicable to the convictions of Charges 1 to 4.  The contents can be briefly summarized as follows:  

1.  The trial judge wrongly relied on the evidence of Mr Suen and the fact that A1 and A2 received education in Hong Kong (see paragraph 21 above).    

Mr Suen “believed” that Form 1 students of his school knew that they should “observe the laws”. It was only the personal view of Mr Suen which could not be tested objectively. Moreover, the school had never held any talks about triad society.

Even if the trial judge accepted that A1 and A2 knew that they should “observe the laws” and they had the “ability to distinguish good from evil” as they received local education, it would still be insufficient to rebut the presumption that they are doli incapax. It is because the law requires the defendants to know what they did are not acts of mere naughtiness or childish mischief to rebut the presumption, while “observing the laws” and “distinguish good from evil” generally refer to not breaking the law and not being unethical.  The two are not the same.

2.  As far as A3 is concerned, there was even no evidence regarding his education, psychology and/or mental state in the case.

3.  Even if the court assumed that A1, A2 and A3 knew what a triad society was, it would still be insufficient.

Learning about the existence of triad society from movies or other media is not the same as knowing the actual operation of a triad society. There was no clear and positive evidence in the case to show the applicants did know what “Tsim Sun”, “watch over the premises” and “(collection of)  Tor Tei” are, as well as the seriousness and the messages expressed when these words were uttered.

As no violence or threat was involved in the case, the court could not rule out the possibility that the applicants were just being playful. In fact, the videos inside the shops showed that A2 was playing with his fingers from time to time with  playful smiling. The hardware shop owner admitted that he did tell the police he felt that A3 was being playful.

4.  The trial judge erroneously emphasized that A1, A2 and A3 “knew about finding the right time to talk to the shop owners’ (see paragraph 22 above).

It is normal that naughty kids do not want to expose their acts of mischief, but real triad members are often fearless of the presence of others when taking action. The trial judge was wrong in drawing the inference in the opposite direction.

The reasoning of the trial judge was tantamount to proving the capability of the applicants to commit  crime by proof of their criminal acts, which is contrary to the legal principle stated in HKSAR v YHN[24]that “evidence to prove a child defendant’s knowledge of his act being wrong must not be mere proof of the doing of the act charged”.

In fact, the applicants might just see that the shop owners were busy serving the customers instead of deliberately waiting for the right time to take action.  

(The relevant law)

26.  Section 3 of the Juvenile Offenders Ordinance, Cap 226 provides that it shall be conclusively presumed that a child under the age of 10 years is doli incapax.  There is also a presumption, yet rebuttable, under the common law that a child between 10 to 14 years of age is doli incapax.

27.  This rebuttable presumption and its co-existing defence were abolished in England by statute back in 1998. In R v JTB[25], the Judicial Committee of the House of Lords even stated directly that the presumption brought “startling results”[26] in individual cases.  

28.  However, the presumption is still applicable in Hong Kong and can only be rebutted according to the two basic principles laid down in C (A Minor)  v DPP[27]:

1.  The prosecution has to prove up to the criminal standard that the child defendant did the act charged and that he knew when doing that act that it was a wrong act, namely it was beyond an act of mere naughtiness or childish mischief[28].

2.  Evidence to prove a child defendant’s guilty knowledge, as defined above, must not be mere proof of the doing of the act charged, however  horrifying or obviously wrong that act may be[29].

29.  The guilty knowledge just mentioned was termed “the discretion to discern between good and evil”[30]in the 18^th century law books, and it was simplified for the first time in the case R v Gorrie[31] in the early 20^th century to a test of whether a child knew his act was “seriously wrong”[32]: see the discussion of the Judicial Committee of the House of Lords in R v JTB[33] (same as above). 

30.  No matter what the test is called, either a “seriously wrong” test or a “beyond mere naughtiness or childish mischief” test which emerges more recently, it is not necessarily related to morality. An act which a child defendant certainly knew to be morally wrong was being but one type of those acts which a child can appreciate to be seriously wrong[34]: JM (A Minor)  v Runeckles[35].  In other words, it is not the duty of the prosecution to prove that the child defendant knew his act was morally wrong, but it may help the prosecution to successfully rebut the presumption if it is so proved.

31.  Clear and positive evidence[36] is required to rebut the presumption of doli incapax: R v Leslie Maxwell Sheldon[37] and L (A Minor)  v DPP[38]. Where the issue of doli incapax is overlooked at the trial, if on appeal the appellate court is satisfied that had the issue been left to any properly directed jury they must have found that the child defendant had the guilty knowledge required, the conviction will not be interfered:  YHN (same as above)[39] and Leslie Maxwell Sheldon (same as above)[40].

32.  Apart from the most fundamental principle and concept above, the cases arose throughout all these years provide much assistance on this issue. The summary prepared by the respondent is slightly modified, extracted and adopted by the court as follows: 

1.  The closer the child defendant is to the age of 14, or the more obviously wrong[41] his act is, the easier it is to rebut the presumption: C (A Minor) (same as above)[42]; Leslie Maxwell Sheldon (same as above)[43] and L (A Minor) (same as above)[44].

2.  The court may take into account all relevant evidence including the family background, the upbringing and education level of the child defendant, or even his reply under caution and his previous criminal record: B v R[45]；R v B, R v A[46]and L (A Minor) (same as above)[47].

3.  The prosecution may call the child defendant’s family, teachers or even expert witnesses such as psychiatrists and psychologists to give evidence to prove the child defendant’s perception of the act involved in the case. However, this type of evidence is not indispensable: L (A Minor) (same as above)[48].

4.  The court may consider the evidence on whether the mental development of the child defendant is normal: C (A Minor) (same as above)[49].  However, even if a normal child of same age must know the act is seriously wrong, the court cannot presume the child defendant has the same perception, which is the same as introducing the “presumption of normality” and shifting the burden of proof to the defence: CC (A Minor)  v DPP[50]and Leslie Maxwell Sheldon (same as above)[51].

5.  The surrounding circumstances of the offence as well as the child defendant’s behavior and demeanour both before and after committing crime[52] are all relevant evidence: YHN (same as above)[53]; C (A Minor)[54]; Leslie Maxwell Sheldon (same as above)  [55] and L (A Minor) (same as above)[56].

6.  When the attempt fails, the child defendant may run away or lie, but it is not the same as knowing one’s act is seriously wrong. It is because when a child’s naughtiness or childish mischief is exposed, the child may also run away or lie: C (A Minor) (same as above)  [57] and Leslie Maxwell Sheldon (same as above)  [58]. However, under some circumstances, for example selling drugs, it is either right or wrong. Being guilty and innocent cannot co-exist, and there is no room for mere naughtiness[59]; thus, running away is in fact evidence to show one’s guilty knowledge: A v DPP [60]. Possession of tear gas canister is another example of an act which is either right or wrong: L (A Minor) (same as above)[61].

33.  Regarding the second point above, we further noted the  case of JBH & JH (Minors)  v O’Connell[62]. In that case, the defendants were aged 13 and 11 respectively. They broke into a school where they stole various items including spanners, wielding tools, watches, a finger ring and necklace; and they used eggs, flour and ink to “redecorate the school”[63]. In the end, they were found guilty of burglary and criminal damage.  Ultimately their convictions were quashed as the magistrate had wrongly put the burden of proof on the defence to rebut the presumption, however, the judge of the Court of Appeal, Donaldson LJ (the later Master of the Rolls)  pointed out in his judgment that at the age of universal education (referring to 1981), it might require relatively little evidence to be adduced by the prosecution in such case of simple nature to prove the child defendant’s guilty knowledge[64].

34.  Almost 30 years later, in the case of JTB (same as above), the Judicial Committee of the House of Lords after reviewing some recent cases stated[65], “Children in the 20th century had to go to school where they were, or were supposed to be, taught the difference between right and wrong.  In the case of some offences, it beggared belief to suggest that young defendants might not have appreciated that what they were doing was seriously wrong.”[66]

35.  Regarding the fifth point above on the “all the surrounding circumstances of the offence”, we noted in the case of YHN (same as above)  where the Court of Appeal found the defendant had the guilty knowledge required because when committing crime he locked the door, made the victims watch a pornographic film, used violence against them, caused obvious fear to them and acted in a relatively indecent way (including inserting a pencil into the victim’s vagina)  and so on[67]. Similar approach can be seen clearly in cases like L and B v DPP[68] (the victim was asked if she was a virgin, and how many fingers she could hold[69]), The Queen v ML[70] (the defendant had a condom on when committing crime[71]), JM (A Minor)  v Runeckles (same as above)  (took the initiative to cause troubles, threw a milk bottle at the victim and stabbed her with the broken milk bottle when she fell onto the ground[72]), and Leslie Maxwell Sheldon (same as above)  (the deceased’s vagina was inserted and hurt by some unknown object and multiple bruises were found on different parts of the body[73]）.

36.  It is clear that the above elements or details of the alleged crime, no matter whether they were to show the child defendant’s degree of maturity and/or his overall behaviour in the crime, were not treated as the criminal acts themselves and precluded as evidence for rebutting the presumption by the court (see point 2 of paragraph 28 above). In the case of L and B (same as above),  Pill LJ stated clearly[74] that “consideration of conduct closely associated with the act is permitted for the purpose of deciding whether the presumption is rebutted.”[75]

37.  Regarding the fact that defendant had threatened the victim repeatedly, Pill LJ said in the same judgement[76] that mere repetition of an act did not normally establish knowledge of its seriousness, but individual acts could be considered in the context of the child defendant’s attitude to the behaviour which occurred and which emerges from the evidence as a whole[77].

(The present case)

38.  In our view, applying the relevant case law to the present case, the following observations and conclusions can be made.

39.  At the time of the offence, A1, A2 and A3 were 13 years 2 months old, 13 years 9.5 months old and 13 years 9 months old respectively, which means they were close to or very close to 14 years old, thus it would be easier to rebut the presumption that they were doli incapax. 

40.  Since nine-year compulsory education[78] has been carried out in Hong Kong for many years, the only reasonable inference would be that A1 and A2 knew what “observing the laws” was and they had the “discretion to discern between good and evil”. Such inference is collaborated by Mr Suen’s evidence on the moral education carried out at school. Furthermore, what is more important is that the “discretion to discern between good and evil” has long been identified in the classical legal works as the crucial point of deciding whether young people should be held criminally liable for their acts (see paragraph 29 above). Regarding “observing the laws”, it usually means being civic-minded, harmless to others’ interests, and law abiding. This concept states clearly that one should observe the law, and it also implies that one’s act should not cross the bottom line of “mere naughtiness” in brief. So it is not contradictory to the case law. As A1 and A2 have normal intelligence and ability of comprehension (according to Mr Suen’s observation), they should not have difficulties in understanding the various points above, and therefore the trial judge is entitled to make the relevant findings.

41.  The next question concerns what the three applicants knew about the triads (abbreviation for triad society).

42.  As the present case took place in Hong Kong, it is highly unlikely and utterly bizarre to suggest that the three applicants have never heard about the triads.  It is not because the triads are still rampant that we have such observation, but the existence of the triads is a fact known to everybody because of history, culture, information or even the entertainment industry. It is impossible for a youngster aged 13 or 14 to be blocked or cut off from such knowledge.  It is also impossible for a youngster aged 13 or 14 to think that the triads are law-abiding organizations.  

43.  In any event, as admitted by Mr Lee, counsel for A2[79], regarding what happened at the time of the offence, adults will appreciate at once that it was an attempt to collect “protection fee” by the triads. This is also the evidence of the hardware shop owner. The question is, if someone who does not have relevant cultural background at all (such as a foreigner)  is put in the position of the shop owner, what will he think? In the circumstances that no violence or direct threats are involved, with the use of neutral or at most obscure words, the answer will certainly be “puzzling”.  

44.  However, not only does such answer fail to help the applicants, it actually reflects that the applicants were in fact in full control of the matter there and then, or else their acts would appear to be neither meaningful nor funny, and there would be no reason to do so at all.  In fact, if they did not know what messages they were expressing or the implied threats of their words, why would they believe the shop owners would pay heed to them or let them leave the notes? The only reasonable inference is that the three applicants knew what the triads were, and they also knew that they were carrying out activities that the triads would carry out.

45.  The applicants contended that, be that as it may, they were just being naughty and their acts were based on imitation. This proposition is utterly unconvincing. The reasons are[80]: at the time of the offence, the applicants were only willing to talk to the shop owners; at the household goods shop, they waited for the male customer to leave, and  at the hardware shop they made a shop assistant to call and tell the boss to come back to the hardware shop; at both shops, the waiting time for making conversation was as long as six minutes; A3 and D3 who were waiting at the household goods shop became impatient that they once approached the male customer and stared at him in an unfriendly manner with his awareness; the conversation with the household goods shop owner lasted for three minutes though the contents of the conversation were not complicated, they obviously paved the way for making further contact (referring to leaving a telephone number, etc.). The conversation with the hardware shop owner was interrupted by a male customer who went up to make payment, then A3 stopped at once, left the cashier counter and wandered around. The conservation at the hardware shop also paved the way for further contact.  

46.  All of the above showed that the applicants were neither naughty nor mischievous. As to A2’s so-called playful smiling face and playing with his fingers, we pointed out at once upon watching the video in court that, unlike what the applicants alleged, it was not in contradiction to the circumstances of dealing with matters seriously. The videos showed all applicants were attending to some business and did not want their conversations to be overheard by others. The trial judge correctly found that the applicants knew what to avoid and waited for the chance to take action. This finding relied on all the circumstances surrounding the crime instead of the criminal act itself.  

(Conclusion)

47.  The applicants’ complaint in respect of this issue fails. The trial judge found that the three applicants knew their acts were seriously wrong and they were doli capax. The finding of the court was safe and proper.  

E.2  Was the decision to amend the charges incorrect?

(Complaint)

48.  Both grounds of appeal (2)  for A1 and A3, and ground of appeal (3)  for A2 complained that the trial judge was unfair in amending Charges (1)  and (3). The details of the complaints can be consolidated as follows:  

1.  There is no need for the court to leave the defective charges unattended. According to section 23 of the Criminal Procedure Ordinance, an amendment may also be made “at any stage” of a trial. However, the court is given the power to make amendment but not the duty to do so.  

2.  The decision of the trial judge was not simply for case management. The decision was made obviously for enhancing the chance of conviction. The trial judge’s written verdict showed that he was aware that the time to amend the charges was important, ie the later the amendment was made, the more likely injustice would be caused to the defence, but he was still determined to make the decision.  

3.  The prejudice caused by such amendment cannot be remedied by adjourning the trial, allowing the defence to reopen the cross examination, make halfway submission again and reopen the defence case, or even stopping the trial and ordering a retrial before another judge.  As their positions and grounds of defence have all been revealed, the defence’s hands were tied even in a retrial.  

49.  Furthermore, during the first closing submission before the amendment of the charges, the trial judge asked the defence a few questions which, A2 thought, could show that the court had already decided on the issue of the capability to commit crime (which constituted another ground of appeal where A2 criticized that the judge had failed to maintain his impartiality: ground of appeal (2)  for A2). As a result, even if A2 (or other applicants)  were willing to reopen their cases in respect of the new charges, they might give up the idea as the judge was biased and their cases would not possibly be accepted. In other words, it is just empty talk to allow the defence the chance to give evidence again.

50.  The applicants mainly relied on the cases of Piggott and Litwin[81] and R v O’Connor[82].

(The relevant law)

51.  There are many cases concerning the amendment of charges. This subject is also much discussed in the reference books for the legal practitioners, such as Archbold Hong Kong and Blackstone’s Criminal Practice. We are not going to quote each and every one of them here.

52.  It has to be pointed out in particular that the statement “the longer the interval between arraignment and amendment, the more likely is it that injustice will be caused” is correct, and thus for the court, “in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby”[83] : Johal and Ram[84], the English Court of Appeal.

53.  Regarding what is meant by a long interval from arraignment, we note a few cases which are instructive. First there are cases in which the application was made only after the closing of the prosecution case: Tirado[85] (the victim of deception by obtaining bankers draft was amended from an individual to a bank); Harris[86] (the substantive charge of obtaining a pecuniary advantage by deception was amended to an attempt charge)  and Fyffe[87] (the duplicitous count of conspiracy was severed into multiple counts). In Teong Sun Chuah[88], the application for amendment (from obtaining services by deception to obtaining property)  was even made after the ruling of no case to answer. However, the time for amendment could not be later than that in the following examples:  Collision[89], where the amendment took place when the judge was directing the jury (wounding with intent was amended to wounding)  and Dossi[90], where the amendment took place when the jury was returning a verdict (the specific date of the offence of indecent assault was amended to some day in the same month).

54.  Not only were the amendments in the above cases allowed in the original trials, the decisions were also upheld upon appeal.   In fact, the reasons were very consistent and were expressed in terms such as the amendment was nothing else but only technical[91]; the amendment concerned only a matter of form and not of substance[92] and it did not end up with a substitution of a different offence[93]; and the amendment deprived the defence only of a technical and unmeritorious argument[94], etc.  The English Court of Appeal emphasized that the amendments in those cases did not cause injustice to the trials[95].

55.  Next, we will look at some examples where the amendments were found to be erroneous.   

56.  Piggott and Litwin (same as above)  is one of the cases heavily relied on by the applicants. What happened in that case from the institution of the legal proceedings to the retrial was as follows: P and L were arrested by the police for 14 counts of handling stolen goods. The prosecution instead laid one count of conspiracy against the two co-accused. After 10 days of trial, the defence made a submission of no case to answer as the evidence showed that it was not a single conspiracy but several different conspiracies. The prosecution succeeded in the application for amending the indictment to 9 counts of handling stolen goods (against L)  and 1 count of conspiracy to steal (against P and L). Since the period covered by the new conspiracy charge was two months shorter than that covered by the old conspiracy charge, a considerable part of the evidence adduced became inadmissible. In order to protect the interest of the defence, the trial judge discharged the jury and passed the case to another judge for a retrial. P and L applied for a permanent stay of the proceedings before the second judge on the ground of abuse of process by the prosecution, but it was refused by the second judge for the reason that he had no power to review the decision of the trial judge. P and L were convicted under the new indictment and they later appealed.

57.  In the end, the English Court of Appeal held that[96] the application for amendments, which was made at the stage when the defence submitted no case to answer after a trial lasting for 10 days and which could only be proceeded with by ordering a re-trial which would traverse the same grounds as before and on the counts withdrawn, did cause injustice to the two accused and should not have been allowed[97]. The Court of Appeal also held that[98] the second trial judge had the power to stay the retrial concerned and should have done so.

58.  Comparing with the case above, O’Connor (same as above)  is no doubt a case of more value on the thorough analysis of the principle. As it is a case of manslaughter involving safety at sea and the evidence of the expert witness had led to subtle changes of the factual basis constituting the offence of manslaughter, we will not spend time to repeat the facts and the details of that case.  We only need to point out that the amendment in that case involved an addition of one count of unlawful killing of a person unknown to the other six counts of manslaughter relating to named persons. As early as the pre-trial review stage, the judge had noticed and reminded the prosecution of the problems of the original counts, but it was only after much delay that the prosecution applied for an amendment on the 27^th day of the trial when the evidence became entirely unfavourable to the prosecution and no case submission had been made by the defence. The defendant was eventually convicted on the additional count only and acquitted on all remaining counts.  

59.  As expected, the English Court of Appeal considered it erroneous to allow the amendment of the indictment. The reasons are[99]: the additional count changed significantly the factual basis of the prosecution case on causation and confronted the defendant with a not only different but also more difficult case; if the prosecution had adopted the altered case from the beginning, the defendant would have been able to mount a corresponding defence; it was for the prosecution to decide how to put its case, and it could not assume that the court would grant it leave to chop and change as the trial progressed; the defendant was not only entitled, but also obliged, to confine his attention to the case against him as framed and was not required to fashion his defence to meet the potential new charges which the prosecution might later prefer; as the prosecution had resisted the need to amend until the bitter end, there was in fact no reason  for the defendant not to believe that the factual basis of the prosecution that  he faced would remain unchanged [100].

60.  It can be seen from the case of O’Connor that whether the basis for prosecution has been changed substantially, and whether the defendant could mount a different defence given the opportunity are fairly material. In addition, at what stage of the trial the application is made and whether the need to make amendment has always existed are all important factors to be taken into account in deciding if an amendment should be allowed. There are old and new cases such as R v Gregory[101] (change of basis for the prosecution)  R v B[102] (the need to make amendment should have been noticed long before)  where the decisions were overruled on appeal because of these considerations.    

61.  Finally, in a recent case R v Barker[103], the English Court of Appeal indicated that[104] any amendments of substance with the obvious intent to thwart a meritorious argument, ie not a purely technical application, of no case to answer are unlikely to succeed at first instance or otherwise be maintained on appeal[105]. This is also the interpretation by the Court of Appeal of the case Piggott and Litwin (same as above).

(The circumstances of the present case)

62.  The trial judge was entitled to amend the charges on his own initiative, which is not disputed: see Ho Ka Keung v HKSAR, FAMC 20/2009, judgment of the Appeal Committee of the CFA.  Counsel for A2, Mr Lee submitted that the trial judge at one point lost his impartiality so that A2 or the other applicants were afraid to give evidence on the new charges. After examining the transcript concerned, we are of the view that there is no truth in this. The trial judge was just inquiring about the issue. Furthermore, being capable or not to commit crime is one thing, but taking part or not in the criminal acts is another matter.  It is illogical to suggest that as the defendants felt that the judge had made up his mind on an earlier issue, it would be pointless to give evidence on the latter issue. It is inappropriate to use it either as an independent ground of appeal (ground of appeal (2)  for A2)  or part of the arguments in support of the complaint against the trial judge for amending the charges.  

63.  Next, we shall deal with the crux of the matter in the present case.

64.  As pointed out by the trial judge, the prosecution mainly relied on the applicants’ cautioned statements in the allegation of “conspiracy to blackmail” against the applicants (see paragraph 17 above). This was inevitable. If there was no direct evidence on the extortion, it would become very unclear because on the one hand there was allegedly “collection of Tor Tei”, but on the other hand only a telephone number was left. For example, it could be a trick before the blackmail in order to instil a sense of “fear” beforehand (among what was said inside the hardware shop, the word “collection” in the phrase of “collection of Tor Tei” is missing), and the applicants’ role might be limited to that only. As to when the actual blackmail would take place and who would carry it out, it was beyond the scope of their agreement.  

65.  If the prosecution had been careful, it should have noticed the above nuances at once. However, according to the court record, on the 5^th day of the trial (7 September), the defence produced three exhibits; on the 6^th day (10 September), the prosecution made it clear that no cautioned statement would be produced; on the 7^th day (11 September), the court heard the evidence of Mr Suen, the teacher, and then the prosecution closed its case and the court ruled that there was a prima facie case; on the 8^th day (12 September), the defence declared not to call any evidence; on the 9^th day (13 September), the defence closed their case and indicated the possibility of the “acting” charges in response to the court’s enquiry, the court adjourned the case for verdict (see paragraphs 10 and 11 above); on the 10^th day (21 September), the court stated clearly that the amendments of the charges was being considered, and the case was once again adjourned; and on the 11th day (24 September), the court formally ordered that Charges (1)  and (3)  be amended.  

66.  In other words, the prosecution was silent for the whole time between 7 and 12 September, while its inaction was completely sufficient to lead the applicants to believe the charges would not be amended. It is the obvious reason for Mr Li, counsel for A1, to indicate frankly in his first closing submission the possibility of the “acting” charges. As to whether there was substantive change of the factual basis of the prosecution case after the amendment, we believe the answer is affirmative, and the original defence would basically fall apart as a result. To put it in the plainest terms, in respect of the allegation of acting in the capacity of a triad society to extort for money, the latter part of it was removed completely so that not only were the facts to be proved by the prosecution largely reduced, but the proof of the prosecution case was also basically completed. We do not think that such amendment can be described as a simple technical amendment or just an amendment of form but not substance. No matter what the original intent was, the amendment gave an impression of thwarting a meritorious argument of no case to answer at the very last minute in order to have the applicants convicted. In other words, it is not different from the case of O’Connor (same as above).  

67.  During the hearing, we did pursue and ask all three counsel for the applicants how the interest of the applicants was jeopardised by the amendment. Why did they at the original trial not ask for a stop and to have a retrial before another judge? The reasons for asking the questions are: no matter how the charges were amended, in the presence of the cogent witnesses (both shop owners)  and exhibits (the video recordings inside the shops), the most crucial and the best defence for the three applicants would be the defence they mounted at that time, namely doli incapax (for all applicants), blaming others for doing the talking (for A1), insisting to be innocent and merely present (for A2), and denying the most obvious triad wording in the conversation (see paragraph 13 above); while a retrial would give them more time and room for manoeuvre, and the prosecution could not use the transcript of the original trial to cross examine them if they elected not to give evidence.

68.  However, after much consideration, we are convinced that no matter what tactics the defence would have adopted back then, or whether they could mount some new defence at the retrial is beside the point. The injustice of the present case is: the applicants would have been acquitted if there had not been any amendments. After the amendments, the prosecution had all the evidence to prove the case and the applicants would be convicted for sure (on the assumption that they failed in the issue of doli incapax, and the court was satisfied that the two shop owners were honest and reliable witnesses).    Under the premise that the applicants should have been acquitted, a retrial should not be treated as an arrangement favourable to them.

(Conclusion)

69.  For the above reasons, our conclusion is that the applicants’ complaint in this regard is made out.

E.3  Other grounds of appeal

70.  It is alleged in ground (4)  for A2 that there is insufficient evidence to prove that he took part in any illegal activities.  We are of the view that it is untenable.  However, as the complaint against the amendment of charges is made out, it is no longer necessary for us to discuss this ground of appeal in detail.

F.  Judgment

71.  Leave is granted to A1 to A3 to appeal against Charges (1)  and (3), and the appeals are allowed. Their convictions and sentences in respect of the two charges are quashed. The appeals in respect of Charge (2)  against A1 and Charge (4)  against A3 are dismissed and the original decisions are upheld.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Richard K. L. Man, Barrister-at-law.