HKSAR v. TSANG CHEUNG YAN (曾祥欣)

FAMC No. 31 of 2023

[2023] HKCFA 42

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 31 OF 2023 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 361 OF 2019)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.  We dismissed this application for leave to appeal after hearing counsel for the applicant and indicated we would hand down our reasons for doing so in due course, which we now do.

2.  The applicant was convicted (as D1), on 13 December 2019, of one count of murder and sentenced to life imprisonment. His co-accused (D2 and D3) were convicted of an alternative count of manslaughter. In addition, all three accused (D1, D2 and D3) had pleaded guilty to a separate count of preventing the lawful burial of a body.

3.  In respect of the homicide, the prosecution case was that the three defendants had participated in a joint enterprise to rob the victim in the course of which they had caused his death by the administration of dichloromethane. In the course of the joint enterprise, the victim was made to inhale dichloromethane and then he was injected with alcohol before his body was disposed of. The dichloromethane was administered by D2 or D3 and the applicant used a syringe to inject alcohol into the inert body of the victim.

4.  The Court of Appeal dismissed the applicant’s application for leave to appeal against his conviction for murder.[1]

5.  Although a number of different grounds of appeal were advanced in the Court of Appeal, leave to appeal to the Court of Final Appeal is sought on the substantial and grave injustice basis in reliance on only one of those grounds. That ground was that it was reasonably arguable that the jury’s verdict that the applicant was guilty of murder, on the one hand, was inconsistent with its verdicts that D2 and D3 were not guilty of murder but guilty of the lesser charge of manslaughter, on the other hand.

6.  Mr John Reading SC, counsel for the applicant (who did not appear below), acknowledged the principles laid down in So Yiu Fung v HKSAR,[2] regarding the purpose of the substantial and grave injustice limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap.484). For leave to be granted, he accepted that it was necessary to show it was reasonably arguable that there was, to the appellant’s disadvantage, “a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice”.[3]  This is necessarily a stringent test or, as Mr Reading realistically recognised, a “high hurdle”.

7.  The Court of Appeal considered and rejected the contention that the applicant’s conviction was unsafe and unsatisfactory because of the inconsistency between the verdicts, of guilty of murder (in the case of the applicant), and of not guilty of murder but guilty of manslaughter (in the case of D2 and D3). In doing so, it applied the principle, which was common ground, that it was for the applicant to show that the verdicts were in fact inconsistent and that the inconsistency was such that an appellate court could not permit the verdict challenged to stand. The Court of Appeal applied the settled test in this jurisdiction, restated in HKSAR v CT, [4] namely that “no reasonable jury which had applied their minds properly to the facts of the case could have returned the verdict called into question”.

8.  In rejecting the contention that the verdicts were inconsistent, the Court of Appeal noted that the jury was entitled to find that there was a joint enterprise to administer the substances (dichloromethane and alcohol) but that the individual defendants’ intentions in taking part in the enterprise differed.[5] The Court of Appeal referred to the differences in the evidence which included the role of the applicant in the planning and carrying out of the preparatory steps in the joint enterprise, the applicant’s financial history with the victim, his potential motives, the group dynamics involving his leadership of the group that included D2 and D3, and the part played by him in the aftermath of the victim’s death and the disposal of the body.[6]

9.  In his written and oral submissions before us, Mr Reading contended that it was reasonably arguable that there was, in the trial judge’s summing up and in the Court of Appeal’s analysis of this ground of appeal, a misapprehension of the applicant’s evidence as to his knowledge of the consequences of the application of dichloromethane and that, therefore, there was no material difference between the individual defendant’s intentions. In support of this, he also drew attention to the jury’s questions to the judge during their deliberations, which he contended supported the contention that they had a misapprehension as to the evidence of intention on the part of the applicant and as to the concept of joint enterprise and that they might not have followed the instructions in the judge’s “road map” setting out the sequence of issues for their determination.

10.  Despite Mr Reading’s thorough submissions, however, we were not persuaded that it is reasonably arguable that there was any material misapprehension of the evidence as contended. On the contrary, we are satisfied that the difference in the evidence of intention on the part of the applicant as compared to that of D2 and D3 was in substance sufficient to justify the respective verdicts of murder and manslaughter.

11.  For these reasons, we dismissed the application for leave to appeal. We reached this conclusion notwithstanding the fresh evidence relied upon by the applicant in support of the application for leave to appeal, which we read provisionally, despite the fact that we would have been minded to dismiss the notice of motion to adduce that evidence as it was not shown that there was a reasonable explanation for not adducing that evidence before the Court of Appeal and since, if received, it would not have afforded any ground for the Court of Appeal allowing the appeal.[7]