HKSAR v. LEE KA HO AND OTHERS

CACC390/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 390 OF 1998

(ON APPEAL FROM HCCC 249 OF 1997)

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J U D G M E N T

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Hon Stuart-Moore, Acting CJHC (delivering the judgment of the Court) :

Introduction

1. On 3 July 1998, the applicants (D1, D3 and D4 at trial respectively) were convicted on two counts of murder involving the deaths of a total of 17 victims, following a trial which occupied 67 days in the Court of First Instance before Gall J and a jury. They now seek leave to appeal against conviction. A fourth defendant (D2) was convicted after trial of the alternative charge of manslaughter.

Background

2. On 25 January 1997, at about 4:00 am, the premises of Top One Karaoke Box ("Top One") in Tsim Sha Tsui were subjected to a "petrol-bomb" arson attack. It appears that a total of three petrol-bombs were thrown by two persons known as "Ah Ching" and "Mei Mei". The prosecution's case against D1, D3 and D4 was that each of them was involved in a joint enterprise with Ah Ching and Mei Mei to murder. Fifteen of the victims who were caught in the ensuing fireball died on 25 January 1997, and two others died two days later from the terrible injuries they received. This accounted for the separate counts of murder which all arose from the same incident.

3. Revenge was the motive the prosecution attributed to all of those who played a part in these murders. The desire for revenge stemmed from an incident on about 20 January 1997 at Top One which involved D3 and a person known as "Sheung Tai", both of whom were injured. Revenge was sought against the bouncers at that establishment who were thought to have been responsible for injuring them.

4. Before the fire-bombing of Top One's premises, two abortive attempts were made to carry out a revenge attack by groups of men in radio communication with each other. On each occasion, they went to the vicinity of Top One with beef knives. These were highly organized groups and it appears that because of the presence of police in and around the area, the attempts were called off. Evidence to this effect was called from 9 accomplice witnesses on whom the prosecution relied to establish the participation of D1, D3 and D4 in the earlier revenge attempts as well as the final attack which had such tragic consequences. Ah Ching and Mei Mei, who physically carried out the third and last attack with petrol-bombs, and who are still at large, were also involved in the planning of the two earlier attempts.

5. The prosecution called direct evidence from accomplices, who gave evidence under conditional immunity from prosecution, that D1 had participated in the unsuccessful attempts to attack with knives and that he knew of the change in plan to fire-bomb Top One's premises instead. He was alleged to have been at the scene when the arson attack took place.

6. D1 alone amongst the defendants gave evidence in his own defence. He denied that he had played any part in any of the unlawful activities in which he was said to have taken part.

7. D3 was linked not merely to participation in the earlier attempts at revenge but to the purchase of petrol and the making of bombs. He was alleged to have been outside Top One when the fire-bombing took place and to have driven away the culprits after they had thrown the bombs.

8. D4 was identified amongst those who had planned revenge. In particular, he was said to have been present when the decision was made to use fire-bombs, and to have given instructions to purchase the petrol which was needed for that purpose.

9. Although D3 and D4 did not give evidence, their cases were presented, as D1's was also presented, on the basis that witnesses who testified against them had lied and had, for interests of their own, concocted a case against them having been prompted and manipulated to do so by the police.

Application to adjourn proceedings

10. Before the hearing of these applications began, we were asked by all three of the applicants to adjourn the proceedings. They asked for further time in which to instruct lawyers privately. However, the application for leave to appeal is now over 1 1/2 years old. There have been numerous previous applications to adjourn which are fully documented and which have been summarized for the benefit of the applicants in the course of today's proceedings. It is apparent that they have lived in the hope of instructing counsel privately. This hope got as far as giving instructions to a solicitor recently who passed the papers to counsel who was unable to find any arguable grounds of appeal.

11. Today in court, the Legal Aid Department is represented by Mr Mullick. He has also been unable to advance any ground of appeal and, having given advice to such effect, the matter was also considered by leading counsel, Mr McCoy, who was equally unable to find any arguable ground of appeal.

12. All of these matters are now known to the applicants and understood by them. In these circumstances, the application for a further adjournment to find counsel who might be prepared to argue a ground of appeal was refused.

First ground of appeal - approach to accomplices and joint enterprise

13. There are, however, two written grounds which the applicants placed before the court earlier in the proceedings. These are in more or less identical terms.

14. The first ground amounts to a complaint that, although their trial counsel pointed out to the jury that some of the accomplice witnesses had admitted lying and in some cases agreed to having testified in the trial as the result of pressure from the police, the judge's failure to give a detailed analysis of this aspect of the evidence to the jury has led to confusion on the part of the jury and to a trial that was unfair to the defence.

15. The trial judge made it abundantly clear to the jury that they should be wary of relying on the evidence given by the accomplice witnesses. The principal direction he gave, appears at page 5 of the Appeal Bundle, which reads:

"It's very dangerous to rely upon the evidence of an accomplice to make you sure of the guilt of an accused, unless it is supported by other evidence from a source outside the accomplice. Now, that makes sense, he's got his own reasons to tell a particular version, he's got his own interests to protect, then you've got to be very careful of relying upon that evidence, unless something from outside shows that it's true. Here I must tell you that none of the evidence of the accomplices is supported by outside evidence with the exception, and that is the statement that the 4th accused was said to have made at Lok Ma Chau Police Post, and I'll come back to that.

Not only must you be very wary of the evidence of an accomplice and it is dangerous to rely upon the evidence of an accomplice unless it's supported by other evidence, the evidence of one accomplice cannot support the evidence of another because it's not independent. It comes from a similar source, a person who was involved and who has his own interests to serve. Therefore, you must look long and hard at the evidence of the accomplices to determine whether you will accept all or any of it as being true.

However, if having warned yourself as I have just described and having considered the evidence of the accomplices with great care, you are nonetheless sure that some or all the evidence they give is true, then you are entitled to rely upon that evidence that you find is true. And if it's sufficient, without anything else to make you sure of the guilt of an accused, then you may convict upon it. You must also, in respect of those accomplices, bear in mind they all have criminal records, previous criminal convictions, and clearly come from that part of society which may behave differently and have values rather different from your own."

16. No doubt the judge directed in these terms out of an abundance of caution although there was no requirement in law for the corroboration warning of the accomplices' testimony to have been given. Section 60 of the Criminal Procedure Ordinance, Cap.221, specifically provides for the abolition of the corroboration rule in respect of evidence given by alleged accomplices and it is in these terms:

"(1) Any requirement whereby at a trial by and before a judge and jury it is obligatory for the judge to give the jury a warning about convicting the accused on the uncorroborated evidence of a person merely because that person is an alleged accomplice of the accused is hereby abrogated."

17. In HKSAR v. Law Hay-chung and others CACC 628/98 (unreported) at page 15, this court confirmed what Mortimer JA had said in Chu Ip-pui [1997] HKLRD 549 at 552 where Lord Taylor CJ's words, taken from the English decision in R v. Makanjuola [1995] 1 WLR 1348 at 1351D, were adopted. The passage at page 15 in Law Hay-chung's case to which I refer is as follows:

"We venture to suggest that the purpose of the abrogation of the old rule by section 60 of the Criminal Procedure Ordinance is to free the decision-maker of the technical - and mostly judge-made - rules of the common law on corroboration thereby to permit the judge or jury to concentrate upon the weight to be given to accomplices having regard to such supporting evidence or circumstances as may be proved. Accomplices have not by this reform suddenly become more credible or less dangerous as witnesses, but the approach is now left to the discretion of the judge. It is necessary that such discretion is unfettered so that he can achieve a fair trial. The English Court of Appeal considered this matter in R v. Makanjuola [1995] 1 WLR 1348 at 1351D where the former Chief Justice said:

'Given that the requirement of a corroboration direction is abrogated in the terms of (the English statute), we have been invited to give guidance as to the circumstances in which, as a matter of discretion, a judge ought in summing up to a jury to urge caution in regard to a particular witness and the terms in which that should be done. The circumstances and evidence in criminal cases are infinitely variable and it is impossible to categorise how a judge should deal with them. But it is clear that to carry on giving 'discretionary' warnings generally and in the same terms as were previously obligatory would be contrary to the policy and purpose of the Act. Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness's evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness's evidence. We stress that these observations are merely illustrative of some, not all, of the factors which judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to the jury. We also stress that judges are not required to conform to any formula and this court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness's evidence as well as its content.' "

Having cited this passage, Mortimer JA went on to say:

"We accept and respectfully adopt these observations. They apply equally to a judge directing a jury as to a judge sitting alone and directing himself or herself."

Later he continued by saying:

"For our part - whereas no limit can be put upon a judge's discretion - following the abrogation of the rule, it would be most unusual for him to feel obliged to give the old direction. We cannot think of circumstances in which he could be criticised for not giving the old full direction now that the requirement for it has been abolished."

18. Whilst Gall J's directions to the jury did not follow the guidance given by the Court of Appeal, nevertheless the result is that the defendants in the case before us were given a direction that was as fair to them as it could have been.

19. It is plain that no unfairness was caused to the defence by giving directions to the jury which ignored the recent legislative change which has abolished the requirement to give a warning about convicting on accomplice evidence in the absence of corroboration. The jury could have been under no misapprehension that they should look at the accomplice evidence with the greatest care before they acted upon it.

20. The fact that the case against them almost entirely depended on the accomplice evidence was emphasised by D1 and D2 in their oral submissions in court today and there is clearly no substance to the suggestion that the jury was unaware of this. It was for the jury, as the judge made plain to them in his summing up, to decide whether they should believe or disbelieve the evidence given by the accomplices having regard to the circumstances under which they had given evidence under immunity.

21. The judge also dealt in his summing up with each of the accomplice witnesses, giving individual directions as to the credibility of each in turn. The judge highlighted the principal inconsistencies and contradictions which emerged from their evidence and the jury was reminded of the caution with which they should approach each of those witnesses. There was of course no duty upon the judge to remind the jury of every single issue which defence counsel had canvassed in their speeches and which in any event would have been in the minds of the jury, having so recently heard the speeches, before they retired to consider their verdicts.

22. The complaint that is made in the same ground relating to "confusion" which may have arisen in the minds of the jury is equally without substance. The summing up was carefully constructed to avoid confusion and was thorough enough to have covered every eventuality, based upon the evidence, which the jury may have wished to consider. In particular, there were two aspects of the law which needed explanation. The first of these related to the mental elements which the prosecution had to establish against the actual perpetrators of the arson before looking at those who were alleged to be their accomplices in the joint enterprise. The judge gave an impeccable direction at page 19K in these terms:

"To sum up the position the two men (Ah Ching and Mei Mei) were intent upon revenge against a group of people they expected to be at Top One. They knew other staff would be near at the entrance of Top One. It was a time when Tsim Sha Tsui was busy. They threw not one but three bombs, two of them were directed at areas on the first and second floor, near where they must have expected at least the cashier's staff to be. The bombs they must have known would cause a large explosion of fire and 17 people, in fact, died as a result of their actions. It would be open to you to find, if you are sure the two men appreciated that it was virtual certainty, that they would cause someone to die or cause them serious harm that they had the intention necessary for the offence of murder.

So you look at it and say given all those circumstances they must appreciated that it was virtual - a virtual certainty that someone would be seriously hurt or killed, and they were. And from that it's open to you to conclude that those two men, Ah Ching and Mei Mei, either intended to kill or intended to do serious harm to the people at Top One Karaoke. If you are sure that they did intend to kill or cause serious harm to the people at Top One. Then you must go on to decide whether at the time they threw the bombs, there were other people who had entered into a joint enterprise with them that the revenge attack should take place and whether in the course of that joint enterprise, those other persons realised that the two men might kill with intent to do so or intent to do serious harm.

If you find there was an agreement, a common desire, a joint enterprise outside those two men. In other words, if you find they weren't acting on their own, there were other people involved. Then you must go on to determine from the evidence whether you are sure, that the accused were among those persons who were part of the joint enterprise."

23. Secondly, the jury had to consider whether an arson attack using fire-bombs was within the scope of the original enterprise, allegedly entered into jointly by each of the defendants looked at individually. Mr Saw's written argument, which has been placed before the court, suggested that the judge had directed the jury to consider whether or not the fire-bombing which led to the deaths was, on the available evidence, a new and unconnected attack which went beyond the scope of the original agreement and joint enterprise. At page 21of the Appeal Bundle, the judge again dealt in the clearest terms with this aspect of the case which was crucial to the jury's understanding of what it was they had to decide. The judge said:

"It has been suggested to you that the intention to avenge the original attack by an attack on the bouncers, may have ceased after the second unsuccessful attack and that the fire-bombing was a new and unconnected attack with a fresh type of weapon. This is, of course, a view you must consider, however, you are entitled to also consider that the third attack was no more than a further attempt to achieve what had failed before, and which was part of the original agreement and joint enterprise.

Ah Ching and Mei Mei, who have - are said to have carried out the final attack, were involved in the planning and earlier attempts. The target is the same and the timing of the third attack is consistent with it being a third attempt to carry out the original intention. As to the weapons used in the third attack, if you were sure that the fire-bombs, whilst they were a different weapon to beef knives and poles, were in the circumstances they were to be used - equally dangerous as the fire-bombs. Then any person who is part of the agreement to use beef knives and poles to attack and injure the bouncers of Top One, and were still part of that agreement in the early hours of the 25th January 1997, could not escape liability for murder because of the difference in the weapons.

Of course if you cannot be sure the weapons were equally dangerous, and unless you were sure a party to the joint agreement realised that in the course of the joint enterprise the two men might kill with intent to do so or cause really serious harm, then you must acquit that accused. On the evidence as I have set it out, it would be open to you to be sure that the two men who threw the fire-bombs did so with the intent to kill or do serious harm, that is to commit murder. It would also be open to you to be sure that an agreement was in existence among a group of people to attack the bouncers of Top One with beef knives and that the agreement was the one in existence when the fire-bombs were thrown. It would be open to you to find that the change of weapon was to one equally dangerous but different. It would be open to you to find, if you are sure, that any person who, at the time of the fire-bombing, was part of that common intent, the joint enterprise and who realised in the course of that joint enterprise that the attack might kill, or intend to do so, or cause serious harm, was guilty of murder."

24. These directions had been properly and fairly tailored to the particular circumstances of the case. There is no substance to any part of the first ground of appeal. In saying this, we have considered D1's oral submission where he asked us to take into account the fact that none of the defendants were themselves the culprits responsible for throwing the bombs. His point was that the judge did not make this sufficiently clear to the jury. We disagree. It was made abundantly clear to the jury than that none of the defendants they were trying was alleged to have been a culprit physically responsible for throwing the bombs.

Second ground of appeal - evidence of triad association

25. In a second ground of appeal which is common to all of the applicants, the complaint is that some prejudice was caused to their respective cases by irrelevant evidence being introduced relating to triad association. It was submitted that such prejudice as may have arisen, may have influenced the jury to return wrong verdicts.

26. It may well be that some of the evidence in the trial did implicitly suggest that there was a triad element to the revenge attack. Whether or not this is so, it is apparent that the judge chose not to make any reference to this. In all probability this was a wise choice as references in the summing up to triad involvement which may have been hinted at during the evidence could only have exacerbated the situation. Furthermore, none of the counsel instructed to defend, all of whom were very experienced, when invited to comment at the end of the summing up, had any complaint at the failure by the judge make any reference to evidence of triad association. If the issue was an issue, it paled into insignificance when set against the nature of the case taken as a whole. This ground fails.

Third ground of appeal raised by D4

27. During the course of today's proceedings, D4 raised a separate matter altogether. He was concerned that two witnesses in the trial could have had their credibility thrown into greater doubt than was in fact done. This concerned PW13 and PW11. PW13 had given evidence of a conversation which he allegedly had with D4 in Shenzhen. The judge dealt with it in summary form at page 13J of the Appeal Bundle where he said:

"You recall that something was said to I think the 13th witness when he visited the 4th accused in Shenzhen, when the 4th accused told him who had thrown the bombs, Ah Ching and Mei Mei. This evidence also may be evidence against the 4th accused but you've got to deal with it with some caution because it was said at a time long after the event and after there had been certain publicity surrounding him."

28. It should be said at this stage that it was a feature of the case, which the judge very fairly invited the jury to consider was something they should not hold against D4, that he was said by the prosecution to have fled to Mainland China. In this context and in the course of the evidence, PW11 also spoke of having seen D4 in Shenzhen.

29. The point being made by D4 was simply that PW11's home visit permit was never shown to the jury but that if it had been it might have established that he could not have met D4 at the time PW11 alleged they had met.

30. As we have already had occasion to say, counsel representing D4 was very experienced. It is apparent from what Mr Mullick (who did not appear in the court below) has told us, that D4's counsel has explained in a letter to the Legal Aid Department what the reason for his decision not to call evidence relating to PW11's home visit permit was. It is apparent that during the course of the trial, no reference was ever made to D4's travel documents which were false and it is also apparent that if the line of inquiry with PW11 had been followed, there is every likelihood that D4's own travel documents would have had to be referred to. Put briefly, it comes to this. D4 was in the Mainland with false documents and the reality was that counsel left well alone a topic which would have done his client no good at all if it had been referred to during the trial in front of the jury. The letter written by counsel to the Legal Aid Department expressly referred to an explanation being given to D4 about the decision not to pursue this aspect during the trial and it may be that D4 has forgotten about it. In any event, there is no substance to this ground of appeal because D4 was travelling on false documents and would have been unable to establish the dates he was in the Mainland.

Conclusion

31. Accordingly, for the reasons we have given, the applications are dismissed.