HKSAR v. NG MA YU KANG AND ANOTHER

CACC 226/2024 [2025] HKCA 954

On appeal from [2024] HKCFI 3216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 226 OF 2024

(ON APPEAL FROM HCCC NO 159 OF 2021)

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REASONS FOR JUDGMENT

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1.  On 15 October 2024, following a trial before Toh J (the judge)  and a jury, the 2^nd applicant (D1 at trial)  was convicted of one count of indecent assault, contrary to section 122(1)  of the Crimes Ordinance, Cap 200 (Count 1)  and one count of murder, contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212 (Count 3); and the 1^st applicant (D2 at trial)  was convicted of one count of aiding and abetting an indecent assault, contrary to section 122(1)  of the Crimes Ordinance, Cap 200, and section 89 of the Criminal Procedure Ordinance, Cap 221 (Count 2).[1]

2.  On 18 October 2024, the judge sentenced D1 to 10 years’ imprisonment on Count 1, to be served concurrently with life imprisonment on Count 3; and D2 to 10 years’ imprisonment on Count 2.[2] 

3.  D1 and D2 applied for leave to appeal against both conviction and sentence.  I granted D1 leave to appeal against conviction on Ground 3, but refused leave on the remaining grounds.  I refused D2 leave to appeal against conviction.  Both D1 and D2 were granted leave to appeal against sentence.  These are my reasons for judgment.

The brief facts

4.  Ms Ng Yan Yu (the deceased)  was the daughter of D2.  She was 21 years old at the time of her death and purportedly suffered from mild intellectual, hearing and speech impairments.  She was a student at the Shine Skill Centre at Kwun Tong until July 2017.[3] 

5.  D1, a formerly registered Chinese medicine practitioner, was a Taoist priest.  His disciples included D2; Ng Ki Sang (Ng), who was D2’s husband and the deceased’s father; D1’s sworn daughter, Ms Cheung Hei Sin (Cheung); and Ms Lam Ng Yuet Kiu (Lam).

6.  The deceased, her family, D1 and Cheung all lived together in a village house in Sai Kung, having moved there in December 2017. 

7.  In the early morning of 2 September 2019, household members found the deceased unconscious in her bedroom on the first floor of the house.  Her father reported the incident to the police at around 7:30 am.  Police and ambulance officers arrived at around 7:45 am.  The deceased was found lying on a foldable bed, wearing denim shorts, a bra top and a T-shirt.  She was unresponsive, and the ambulance officer pronounced her dead at 7.51 am. 

8.  The forensic pathologist found that “the deceased died as a result of pneumonia developed as a complication of acute alcohol intoxication, contributed to a certain extent by the intracranial injury sustained by blunt impact(s).”[4]  There were multiple bruises, abrasions, and lacerations on her face and limbs, consistent with injuries caused by hard, blunt objects or by bumping against hard surfaces.  These injuries were likely inflicted within about one to two days before death.  He explained that such injuries could have resulted from an assault or struggle, but were unlikely to be fatal on their own, absent significant medical complications such as extensive bleeding and fluid accumulation.[5]  Some abrasions and bruises suggested her head had been hit or bumped against hard objects multiple times.  A small amount of subarachnoid haemorrhage was found in her brain, possibly caused by blunt force trauma or forceful shaking, resulting in shearing injuries to small blood vessels on the brain surface.  The deceased had been under the influence of alcohol before death, which could have significantly contributed to her death by precipitating medical complications.[6]

9.  In summarising the forensic pathologist’s evidence to the jury, the judge repeated his finding that the deceased had been under the influence of alcohol before death, which could have significantly contributed to her death by precipitating medical complications.  The judge went on to explain: “because the lung was in a very early stage of pneumonia, bacterial infection, which may have been caused by vomiting, and some of it went into the lung, and therefore, the bacteria growing in the lung, the condition was made more serious when she drank alcohol.”[7] She further explained:[8]

“So he said, ‘therefore the findings indicated that the deceased was under the influence of alcohol before death, and therefore, it contributed to the death of the deceased.’ That is why he said pneumonia complicating alcohol intoxication and head injury. He did say that the head injury by itself is not fatal, and in combination, therefore, it led to her death.”

10.  In his video recorded interview, D1 claimed that the deceased's family had allowed him to perform an exorcism “ritual” on her due to her disobedient behaviour, which he said he began around February or March 2018.[9]  He admitted assaulting the deceased many times between March and September 2019, by hitting her with an umbrella, an umbrella barrel and a fan, and by banging her head against the wall, claiming she had fits because she was possessed by an evil spirit.[10]  He stated that he conducted this “ritual” from the early morning of 1 September 2019 until the time of her death at around 1:30 am on 2 September 2019.  He admitted repeatedly assaulting the deceased and forcing her to drink a large amount of alcohol on 1  September 2019.  He would make the deceased sit on the stool and beat her.  He pushed her head three to four times against the wall, causing her to bleed[11]; and bumped her forehead two to three times against the cabinet, causing redness and swelling[12].  Bloodstains were found on the wall and on a stool that D1 had discarded. 

11.  The deceased was left severely beaten and bruised, lying on the floor.  D1 checked on her in the early hours of 2 September 2019 and described her condition as “all weak, seemed very heavy”.[13]  She did not respond when he tapped her face and called her name.  He claimed he put her on the stool and leaned her against the wall, doing nothing else except leaving her there while he went to pray.  When he returned, he found her still sitting on the stool, leaning against the wall, and said he felt that “her breath was quite shallow”.  The deceased was later moved to her bed[14].

12.  The prosecution’s case (Count 3)  was that D1 inflicted numerous blows all over the deceased’s body, particularly to her head and face, and forced her to consume alcohol, which reacted with the pneumonia bacteria in her lungs, ultimately leading to her death.  It was alleged that, by his actions, D1 intended to cause really serious bodily harm to the deceased and was therefore guilty of murder.[15]

13.  Sometime in August 2019, prior to the deceased’s death, and as part of the exorcism ritual, D1, in the presence of D2 and others, thrust a dildo into the deceased’s vagina.[16]  The prosecution’s case (Counts 1 and 2)  was that D1 had indecently assaulted the deceased by penetrating her vagina with a dildo, and that D2 aided and abetted him, as she had purchased the dildo together with D1 and was present during the assault.  In his video recorded interview, D1 claimed he thought the deceased had an intimate relationship with spirits, so a dildo was purchased to break her hymen.  The dildo was 14 centimetres in length.  He stated that he drew charms on it and thrust its full length into her vagina.  He said the deceased was drunk at the time, was only half conscious, and made no response or attempt to struggle.[17]

14.  D2 stated in her video recorded interview that D1 told her that a “yin” person had sexual intercourse with the deceased because she was a virgin, and that if she lost her virginity, she would no longer be targeted by this “yin” person for sex.  This, he claimed, could be achieved without impairing her “yang chi”.  D2 explained that while she initially had some doubts, she agreed to it because D1 said it was necessary.  She said that she and D1 went together to Mong Kok to purchase the dildo.[18] She said the deceased was not informed that the ritual would be performed on her[19] and was in a semiconscious state after being made to drink alcohol[20].  Lam was supposed to perform the mock sexual intercourse, but could not go through with it.  D2 recalled someone saying, “who was to do such thing, which was really very disgusting.”[21]  D1 then put on gloves and conducted the ritual, simulating sexual intercourse as he inserted the dildo into the deceased’s vagina.  D2 heard her daughter crying out “It hurts” and “Ah” twice[22].  Afterwards, D1 used tissues to wipe the deceased of “perhaps bloodstains and things like that”.[23] 

15.  D1 and D2 did not give evidence, nor call any witnesses on their behalf.  Before the trial, D1 and D2 challenged the admissibility of their video recorded interviews, which were ruled admissible.  However, during the trial, they did not contest the admissibility or accuracy of their interviews.  In addressing D1’s and D2’s conviction appeals, it is noteworthy that, in the closing addresses of their respective counsel, they frequently referred to or relied on each other’s statements in their video recorded interviews.

16.  On the murder count, D1’s defence was that he was not guilty of murder because the prosecution had failed to prove that he intended to cause the deceased really serious bodily harm, and that he therefore was only guilty of manslaughter on the basis of an unlawful act or acts, or gross negligence.[24]  D1 carried out his “ritual” on the deceased over two days, waking her up, and making her sit on a stool while he repeatedly hit her.  There were occasions when he banged the deceased’s head against the wall.  Bloodstains were found on the walls and floor, which he had subsequently cleaned up.[25]

17.  A relevant consideration in D1’s appeal against the murder conviction is how the defence case was conducted at trial.  In her summing-up to the jury, the judge explained that D1’s defence was that, “though he did cause the death of Ms Ng by his acts”, the prosecution had failed to prove he intended to cause the deceased really serious bodily harm.[26] Defence counsel raised no objection to the judge’s remarks.  This statement was based on defence counsel’s closing address to the jury.  After setting out the four elements of the offence of unlawful act manslaughter, defence counsel submitted to the jury as follows:[27]

“Now, let us have a look at the evidence and apply it to those four factors. Factor one, as I said, the defendant committed an act which caused Ng Yan Yu’s death. You have the defendant’s own admissions as to what he did to Ng Yan Yu on the morning of the 1 September 2019. He made the deceased drink from a bottle of Maotai. He also pushed the deceased’s right side of her head against a wall several times. And he also bumped the deceased’s forehead several times onto a cabinet.

You have the cause of death as given by Dr Foo, who was the 13^th witness called by the prosecution. The cause of death was pneumonia, complicating alcohol intoxication and head injury. The act was intentional. You have the defendant’s own admission as to what he did. Accordingly, you can find that the acts were intentional. But again, this is a matter for you as it’s a matter of the facts. The act was unlawful. I would suggest that you would have no difficulty in finding that the acts committed by the defendant are unlawful. I would not aim to persuade you otherwise.

The act was dangerous in the sense that it was one which all sober and reasonable people would realise must subject Ng Yan Yu to the risk of some harm. Again, this is a matter for you to determine. But I would not suggest to you that the acts committed by the defendant would not have subjected the deceased to the risk of some harm.” (Emphasis added)

18.  Later in his closing address, defence counsel revisited the elements of unlawful act manslaughter. He referred to his earlier remarks about whether D1 committed an act which caused the defendant’s death in relation to the murder count, and acknowledged that the jury would likely have no difficulty finding the second to fourth elements satisfied on the evidence.  He then stated:[28]

“In view of the unknowns with regards to the deceased’s alcohol consumption, there is some difficulty in finding, so that you are sure, the deceased’s (sic)  act did cause the death.”

19.  On the indecent assault counts, both D1 and D2 submitted that no right minded person would have considered the manner of the assault indecent. 

20.  In his closing address, D1’s counsel submitted that the indecent assault was performed like a medical procedure: D1 wore gloves, and the deceased was given alcohol to numb the pain.  He noted that according to D1, it was performed as an exorcism because he believed the deceased was possessed by an evil spirit.[29]  Defence counsel argued that this was a “genuinely held belief”, i.e. that the deceased was possessed.[30] He rightly pointed out that this “does not in any way excuse his conduct if the deceased did not consent and the defendant knew that she did not consent or was reckless as to whether she consented or not.  That’s the only issue you need to consider.”[31] 

21.  Defence counsel framed the issue for the jury as follows:[32]

“ … The difficulty here is, basically, we only have the words from the defendant of what he told the police as to what happened. I therefore suggest it’s therefore difficult to be sure that the deceased did not consent. You may find that it may be unlikely that she consented. But that is not good enough. It’s not that she probably didn’t consent. Or putting this up, given the bizarre situation, how would she consent? But rather, can you be sure that she didn’t consent.”

22.  Defence counsel asserted that D1 may have had an honest but mistaken belief that the deceased consented, based on a photograph of her sitting on a chair in a ritual setting.  However, this did not provide an evidential basis to support this defence.  Instead, photographs from D1’s mobile telephone also showed the deceased had been severely beaten and abused.[33] Defence counsel further asserted that the presence of the deceased’s mother supported D1’s belief that the deceased was consenting, on the basis that it was reasonable for him to believe that D2 had told her daughter what they were going to do.  There was no evidence to support this assertion.[34] 

23.  Defence counsel referred to D2’s video recorded interview, in which she said that during the insertion of the dildo into the deceased’s vagina, Cheung and Lam were also present.  Lam was supposed to perform this task, but could not go through with it, so D1 carried it out.  It was submitted that D1 put on gloves and inserted the dildo into the deceased’s vagina, mocking sexual intercourse, but derived no pleasure from this form of exorcism.[35]

24.  The essence of defence counsel’s address to the jury was the difficulty of being sure that D1 knew that the deceased did not consent or was reckless as to whether she did.[36] 

25.  In his closing address, D2’s counsel did not dispute that D1 used a dildo to penetrate the deceased, but stressed that it was part of a Taoist ritual or ceremony.  He relied extensively on statements from both D1 and D2 in their interviews in presenting the defence case.[37] D1 and D2 presented similar cases, with little difference between them.  Defence counsel explained that D1, the master, and the others, including D2, believed that the deceased was possessed.  He submitted that D2 had an honest but mistaken belief that what D1 was doing was part of the Taoist ritual necessary to rid the deceased of an “evil spirit” (relying on what D1 and D2 said in their out-of-court statements).[38]  He further submitted that D2 was merely watching and not participating in the indecent assault.[39] 

26.  Regarding the element of consent, defence counsel contended that D2’s reference to “we” when buying the dildo included the deceased.  He based this on the maid’s evidence (PW3)  that she would always see the three ladies (D2, Cheung and the deceased)  and D1 going out together.[40] PW3 did not live in the house, she lived nearby.  She agreed that the five people she said who lived in the house (one man with tattoos and four women), would always come in and out as a group.  This account was vague and ambiguous and did not specifically address whether the deceased was with D1 and D2 when they purchased the dildo.  D2’s counsel did not cross-examine PW3, and hence he did not address this subject.[41]  In her summing-up, the judge corrected defence counsel’s assertion, noting it was speculation.[42] 

27.  Defence counsel further argued that there was no evidence indicating that the deceased did not consent when they bought the dildo.[43] It was not part of D2’s defence that she honestly but mistakenly believed her daughter consented; according to D2, she had not informed her daughter of what was to take place.  The essence of defence counsel’s submission was that D2 truly and honestly believed that what was done to the deceased was correct and not illegal.[44]

28.  It should be noted that D1 had his own small sect and did not practice proper Taoism.  Evidence was presented during the trial that physical or sexual violence is never adopted in Taoism rituals.[45]

The grounds of appeal

29.  Mr Steven Kwan, for D1, advanced three grounds of appeal against conviction.  Ground 1 alleged that the judge failed to direct the jury on the use of the uncharged acts revealed in D1’s video recorded interviews.  Ground 2 alleged that the judge failed to direct the jury on the use of D2’s video recorded interviews against D1.  Ground 3 alleged that the judge failed to give a direction on the causation of death and a Woollin direction on intention.

30.  In his appeal against sentence, D1 argued that the maximum sentence imposed for the indecent assault count was manifestly excessive.

31.  Mr Richard Donald, with Ms Nisha Mohamed, for D2, advanced two grounds of appeal against conviction. Ground 1 alleged that the judge had erred in failing to direct the jury on facts that supported D1’s genuine belief that the use of the dildo on the deceased was not for sexual gratification, nor did its use have a sexual connotation.  Ground 2 contended that the judge’s summing-up was unfair, as it emphasized only the prosecution case.

32.  In her appeal against sentence, D2 submitted that the imposition of the maximum sentence for the aiding and abetting count was manifestly excessive.

D1’s appeal against conviction

Ground 1: Failure to give an uncharged acts direction

33.  It was argued that the judge should have directed the jury on the limited use that could have been made of the evidence regarding previous assaults by D1 on the deceased, which were uncharged acts: HKSAR v Kwok Hing Tony [46], HKSAR v Ngie Hon-miu [47]; HKSAR v Cheung Kim-shing [48]; and HKSAR v Abbas Waseen [49].

34.  After hearing the arguments from the parties, I was not persuaded that this ground was reasonably arguable. 

35.  First, D1 had admitted that he had previously assaulted the deceased as part of an exorcism ritual because he thought she was possessed by an evil spirit.  D1 relied on the previous assaults to support his defence that this was all part of a religious ritual to remove an evil spirit from the deceased.  This was explained by defence counsel in his closing address to the jury:[50]

“Now, the defendant has admitted that he had, over a period of time, assaulted the deceased. Part of his explanation is that it was to do with his belief that she was possessed and that she was having a fit. Another reason, apparently, is that the presence of the evil spirit was coming up and he was hitting it to get rid of it.”

36.  Secondly, no issue was taken about D1 assaulting the deceased prior to and at the time of death.  While D1 admitted that he had repeatedly assaulted the deceased, he focused his defence against the murder charge on the basis that he did not have an “intent to cause grievous bodily harm”.[51] As stated by defence counsel in his closing address, D1 admitted that he was guilty of manslaughter:

“I am not going to stand here and tell you that he is innocent. That would be clearly dishonest, and on the evidence you have heard, completely absurd. So as I say, you can find Mr Cheung guilty. But when I say guilty, he is guilty of manslaughter, rather than murder.”[52]

“… You have the defendant’s own admission as to what he did. Accordingly, you can find that the acts were intentional. … I would suggest that you would have no difficulty in finding that the acts committed by the defendant are unlawful. I would not aim to persuade you otherwise. … But I would not suggest to you that the acts committed by the defendant would not have subjected the deceased to the risk of some harm.”[53]

37.  Defence counsel also stated that the defence did not dispute the prosecution evidence.  He said that D1 “has made no such challenges to the evidence that you have heard.  We don’t dispute the facts.  We just say, on the facts, that this is manslaughter rather than murder.”[54]

38.  Thirdly, the uncharged acts could not realistically have been used as evidence of criminal propensity.  There was no suggestion that the uncharged acts were introduced to show a pattern of conduct, as it was unnecessary in the light of D1’s defence.  As argued by the respondent, they were adduced for non-propensity purposes, specifically (a)  to provide contextual background to the offences, (b)  to explain the relationship between the parties, and (c)  to demonstrate D1’s “religious reasons” for having committed those acts on the deceased.  The previous assaults were part of the defence case to support the narrative of a lack of criminal intent for Counts 1 and 3, and to explain the context of the offences charged, which was consistent with the defence case.

39.  Fourthly, as pointed out by the respondent, the commission of the uncharged acts and the offending acts were not in issue; hence, there was no factual dispute for the jury to resolve in this regard.  It was noted that the failure to give a direction on uncharged acts would be a material non-direction only if there existed a real risk that the jury might misuse the evidence.  Where the commission of uncharged acts was undisputed and there was no factual or logical basis for the jury to have inferred propensity based on the uncharged acts, the absence of a direction could not be said to have caused any substantial risk of miscarriage of justice.

40.  It was an integral part of the defence case that D1 had assaulted the deceased as part of a ritual and in the belief that she was possessed by an evil spirit.  Additionally, it was argued that, while D1 had committed the general assaults on the deceased, they were not relevant as they did not cause the deceased’s death.  Based on the forensic pathologist’s finding that the cause of death was pneumonia complicated by alcohol intoxication and head injury, the focus on D1’s acts was on his having forced the deceased to drink alcohol and having pushed and bumped her head against the wall.[55]

41.  The primary purpose of an uncharged acts direction was to prevent the jury from misusing unproven uncharged acts to infer criminal propensity against an accused.  Such a direction was irrelevant in the present case because the commission of the offending acts for all three counts was not disputed.  Accordingly, there was no real risk that the jury might have impermissibly reasoned that, because D1 had committed similar acts in the past, he was the type of person likely to have committed the offences in question.

42.  The previous assaults did not give rise to any real risk of impermissible reasoning by the jury, and the absence of a judicial direction on uncharged acts caused no prejudice to D1. 

Ground 2 – The impermissible use of the out-of-court statements

43.  It was a fundamental principle of law that the out-of-court statements of an accused are inadmissible against any other accused.  However, in certain circumstances, there is the potential exception where an accused is relying on the other accused’s out-of-court statements: HKSAR v Lee Kwan Kong & Ors [56].   

44.  The respondent submitted that the judge did not invite the jury to use the content of one accused’s out-of-court statements against the other.  She correctly reminded the jury to look at the whole of the defendant’s out-of-court statements, including both inculpatory and exculpatory parts, and stated that the jury had to consider the case against and for each defendant separately.[57]  She went on to stress that the jury should not use D1’s out-of-court statements as evidence against D2 and vice versa.[58] She specifically reminded the jury that where an accused said something against the interest of the co-accused, such a statement had to be disregarded against the co-accused because the co-accused had no opportunity to contradict it.  This was consistent with the relevant specimen direction.[59] 

45.  Regarding D1’s out-of-court statements, it was explained to the jury that they should look at all the evidence in the case, not merely concentrate on one part of the evidence, but consider the whole of the evidence[60] as well as the surrounding circumstances, when considering what D1 said in his out-of-court statements[61].

46.  In considering this complaint, context was important.  Both D1 and D2 relied on each other’s statements in their records of interview in advancing essentially the same defence: that they believed the deceased was possessed, and they were carrying out an exorcism ritual on her.  Moreover, the judge did not invite the jury to compare the extent to which their out-of-court statements agreed or disagreed. See R v Tsui Shing-yau [62]; R v Ma Hing-yip [63]; and Wong Wai-man & others v HKSAR [64].

47.  Two matters were raised under this ground where the judge, in summarising D1’s out-of-court statements, made reference to what was said by D2.  The matters concerned how much liquor was administered to the deceased[65], and whether there was any response from her when the dildo was inserted into her vagina[66]. The judge corrected herself regarding the matter relating to the liquor, as D2’s statement referred to a different occasion.[67]  The other matter, concerning the deceased’s response, reflected a different recollection.  As already noted, D1 and D2 relied on each other’s statements in presenting their defence to the jury, and there was no significant difference between them regarding what had happened.  Moreover, they did not dispute what took place.  They both contested the indecent assault on the basis that it was not indecent, and that the indecent assault was part of an exorcism ritual.  On a sensible appraisal, the jury was not invited to compare the out-of-court statements of D1 and D2, nor was there any inherent danger that they would stray into comparing those statements.

48.  As submitted by the respondent regarding the two matters, the judge did not invite the jury to use the out-of-court statements of D1 and D2 against each other, but rather noted what each said about a particular matter.  Nor did she invite the jury to compare their video recorded interviews and use them against each other. Significantly, D1 and D2 essentially gave the same defence, and as already noted, each relied on what the other said when presenting their respective cases. There were occasions when one said something different from the other, but these were not materially inconsistent with the defence case they both presented. Furthermore, the judge in summarising D1’s video recorded interview, had repeatedly reminded the jury that it was for them to consider the matters that she had mentioned and to consider all the evidence in the case when assessing what was said by D1.[68]

49.  The matters, therefore, did not undermine or nullify the judge’s directions regarding an accused’s out-of-court statements [69], nor  did they act to the prejudice of D1.  It was obviously not a matter of concern to the parties, as neither counsel for D1 nor D2 took issue with the judge’s comments on this matter.

50.  I was not persuaded that Ground 2 was reasonably arguable.

Ground 3 – The failure to give a direction on causation and a Woollin direction

51.  Mr Kwan contended that, in the circumstances where the cause of death of the deceased was the combined effect of pneumonia complicating alcohol intoxication and head injury, neither of which was directly fatal on its own, the judge erred in failing to give: (1)  a direction on causation; and (2)  a Nedrick/Woollin direction.[70]  He argued that the jury should have been instructed that they were not to find the necessary intention to support a charge of murder unless they felt sure that death or really serious bodily harm was a virtual certainty, barring some unforeseen intervention, as a result of D1’s actions, and that D1 appreciated that such was the case.

52.  In R v Woollin, a case of murder in which the defendant’s foresight of death or really serious bodily harm was in issue, the House of Lords approved the following passage in the circumstances stated: [71]

“Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or (really)  serious bodily harm was a virtual certainty (barring some unforeseen intervention)  as a result of the defendant’s actions and that the defendant appreciated that such was the case.” (Emphasis added)

53.  It has been acknowledged that in trials of murder, a Woollin direction would rarely be needed if the offence consisted of a direct attack on the victim.  Even where the death resulted indirectly from the act of the accused, cases which call for such a direction by reference to foresight of consequences would be extremely rare: HKSAR v Limbu Machindra [72].

54.  Mr Kwan noted that a significant contribution to the death was pneumonia, which developed as a complication of acute alcohol intoxication.  He contended that death might have been caused by the deceased drinking some of the liquor from the bottle and/or by D1 forcing her to drink the rest of the liquor in the bottle.  He argued that forcing a person to drink half a bottle of liquor was a manifestly dangerous act but did not amount to a direct attack, for which a virtual certainty direction was rarely required.  As the forensic pathologist agreed that the deceased had not died immediately after drinking the alcohol, causation was therefore a live issue before the jury.  He also noted that death was contributed to a certain extent by the intracranial injury, which could have been caused by D1 banging the deceased’s head against the wall and the cabinet.  He accepted that this act was a direct attack on her, but it was neither directly lethal on its own nor a significant contribution to her death, as the principal cause was the pneumonia complicated by the alcohol intoxication.  He pointed out that the judge did not give the standard direction on causation, nor did she direct the jury that they must be sure that D1’s acts were a significant cause of death.

55.  Mr Kwan argued that the failure to direct on causation was exacerbated by the judge’s failure to give a Woollin direction.  He submitted that, when the cause of death was a composite of alcohol intoxication and intracranial injury contributing to the death, and one of the accused’s acts which caused a significant contribution to the death, did not amount to a direct attack on the deceased, a Woollin direction should have been given.

56.  The respondent accepted that the judge had not fully followed Specimen Direction 20.1 on causation in Specimen Directions for Jury Trials, 2013, and had omitted to expressly direct the jury that they had be sure that D1’s acts were a significant cause of death.  Nonetheless, the judge made it abundantly clear that the jury could only convict D1 if they were sure that he had committed an act or acts that caused the death of the deceased.  She had repeatedly stressed in her summing-up that the jury had to be sure before convicting D1 that: (i)  he had committed an act or acts which caused the death of the deceased[73]; (ii)  the killing was unlawful[74]; and (iii)  he intended to cause her really serious bodily harm[75].  The omission was therefore immaterial in the context of this case.

57.  As for the complaint concerning the absence of a Woollin direction, the respondent submitted that the judge had correctly refused to include such a direction in her summing-up.  First, it had never been suggested that there was any possible cause of death other than (i)  alcohol intoxication; and (ii)  head injury.  Accordingly, causation between the acts committed by D1 and the death was never a live issue at trial.Secondly, D1’s cross-examination on causation was based on a hypothetical scenario that, if medical assistance had been sought, the deceased might not have died[76]. However, this was to be distinguished from a genuine dispute regarding the cause of death.  As the judge pointed out in the summing-up, the real issue for the jury was whether D1 had the intent to cause grievous bodily harm when he committed the acts.  This was also consistent with D1’s position that he was guilty of manslaughter.[77]

58.  The respondent further argued that this case involved a direct assault and abuse of the deceased, resulting in numerous recent injuries and ultimately death, as opposed to targeting an other individual or being an indiscriminate attack.  Accordingly, the issue at trial was whether D1 had the intent to cause the deceased grievous bodily harm, and there was no possibility of any misconception by the jury concerning the requisite intent.  However, in the course of oral submissions, it was accepted by the respondent that, on the issue of causation, there was a reasonable argument. 

59.  I was satisfied that the argument regarding a direction on causation, and the related question of the necessity for a Woollin direction, were reasonably arguable. 

D2’s appeal against conviction

Ground 1: Failure to direct on D2’s case

60.  It was argued that the judge failed to direct the jury that, if they found D2 had honestly believed that inserting a dildo into her daughter’s vagina was not indecent because it was consensual and necessary as required by the Taoist teachings of D1, then they could not find D2 guilty of aiding and abetting an indecent assault on her daughter.  It was further argued that such a direction was required, given how the defence of honest but mistaken belief was presented at trial.[78] 

61.  There was no justification for this complaint.  The insertion of a dildo into the deceased’s vagina, in order to simulate sexual intercourse and to break her hymen, would undoubtedly be considered inherently indecent by right-minded persons.  At the time, it was viewed as disgusting, and even D2 herself had doubts.  Even if D2 believed it was part of the religious ritual, her state of mind was not relevant, as the key question was whether the assault on the deceased was objectively indecent.  Nor did it matter whether the act had a sexual connotation or was done for sexual gratification.  In any event, the judge gave a direction in these terms, and clearly the jury, by its verdict, clearly found the act to constitute indecent assault.  The issue of whether the deceased consented to the assault was never a viable defence, as there was no evidential foundation for it.  D2 advanced the purported defence of honest but mistaken belief on the basis that the act was part of a religious ritual, not that she honestly but mistakenly believed her daughter consented.  On D2’s own evidence, she did not inform the deceased that they would simulate sexual intercourse on her by inserting a dildo into her vagina.  It was also relevant that they plied the deceased with alcohol, rendering her semiconscious, in order to perform the mock sexual intercourse. The suggestion that the deceased consented to the indecent assault because she was present when they purchased the dildo, was, as the judge correctly described, mere speculation.  As the issue of whether the deceased may have consented to the indecent assault was before the jury, it was plainly rejected by its verdict.

Ground 2: Unfair summing-up

62.  It was alleged that the judge’s summing-up as a whole was unfair, as it  highlighted the prosecution case and downplayed the defence case.[79] 

63.  As already noted, D2 did not give evidence or call evidence on her behalf.  She primarily relied on her statements and those of D1 in their respective video recorded interviews, which were summarised in detail by the judge in her summing-up.  I did not find any merit in this complaint in relation to the indecent assault offence, as the judge properly reflected the evidence and the relevant issues at trial. 

64.  It was not disputed that D1 had used the dildo to penetrate the deceased.  The defence case was that this was part of the ritual, which did not involve sexual gratification.  The household members believed the deceased was possessed by an evil spirit, and that D1, as master of the sect, was carrying out an exorcism.  It was submitted that there was no evidence to show that the deceased did not consent, and that if D2 truly and honestly believed that what was happening was correct and not illegal, then she would not have had the requisite guilty mind.

65.  The judge directed the jury on the substantive offence of indecent assault.[80]  When addressing D2’s case, she took the jury through the elements of accessorial liability for aiding and abetting indecent assault.[81]  On the charge of indecent assault, the prosecution must prove: (1)  that the accused intentionally assaulted the victim; (2)  that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; (3)  that the accused intended to commit such an assault as is referred to in (2)  above: R v Court [82]. 

66.  In the recent decision of R v DJ [83], the English Court of Appeal explained when an offender’s purpose may be relevant:

“24. However, their Lordships in R v Court were concerned with a case where the circumstances of the assault were not inherently indecent; the circumstances were only capable of being an indecent assault. In that situation, evidence that tended to explain the accused's indecent purpose was relevant. Lord Ackner made clear that where an assault was inherently indecent, the offender’s purpose was irrelevant. This approach was confirmed in R v C in which the court held that indecent assault remained a crime of basic intent and nothing in the speeches in R v Court had changed the position as previously understood. The issue of an alleged offender's indecent purpose therefore only becomes relevant where the circumstances are ambiguous and the intent or purpose of the alleged offender may help establish whether right-minded people would consider the assault indecent.” (Emphasis added)

67.  In the context of indecent assault, the accused's belief that the assault lacks sexual connotation is only relevant when the assault is not objectively considered inherently indecent.[84] This was clearly a case where the assault on the deceased was inherently indecent, and therefore D1’s and D2’s belief was irrelevant. 

68.  As noted by the respondent, for D2’s mens rea as a secondary party to indecent assault, the prosecution was only required to prove: (i)  that she had the intention by her conduct to aid or abet the principal in committing the offence; and (ii)  that she had knowledge of the “essential matters” constituting the offence, i.e. knowledge of the relevant facts and circumstances which will constitute the principal’s offence: HKSAR v Chan Kam-shing [85].  Accordingly, D2 must have the specific intent to facilitate the commission of the indecent assault by D1.  As already noted, D2’s defence at the trial was that she did not believe the assault was indecent because it was part of a ritual for the deceased’s benefit. 

69.  As rightly pointed out by the respondent, D2’s belief regarding the purpose of the ritual (whether mistaken or not)  was not a defence to the charge on aiding and abetting indecent assault.  This is because the specific intent required for aiding and abetting indecent assault is an intent to assist or encourage the principal offender “to do the things which constitute the offence”, together with knowledge of the “essential matters” constituting the offence.

70.  The judge directed, in terms favourable to D1 and D2, that the jury should not convict them of indecent assault unless they were certain that the assault had a sexual connotation or overtone.[86] By their verdict, the jury clearly rejected the suggestion that D1 and D2 held an honest but mistaken belief that the act was not sexual (that is, inherently indecent)  or that the deceased may have consented to the act.

71.  D2 specifically complained that: (i)  the judge erred in inviting the jury to compare and contrast the content of the video recorded interviews of D1 and D2, which gave rise to the risk that the jury would not limit themselves to the specific parts referred to by the judge, but would consider the entire interviews; and (ii)  the judge’s summing-up left the jury with the impression that she thought D2’s case was weak, as the prosecution had more evidence; and (iii)  the judge failed to sum up the defence case on genuine belief, and thus the summing-up was unfair and unbalanced.

72.  The allegation that the judge invited the jury to compare the video recorded interviews of D1 and D2 has already been addressed in D1’s appeal, in which he advanced the same argument.  D1 and D2 were essentially advancing the same defence, and each relied on the other’s out-of-court statements in their closing addresses to the jury. The matters mentioned by the judge when she referred to what each said were not material and would not have resulted in any prejudice to either of them. 

73.  It was complained that the judge unfairly referred to defence counsel’s submission regarding D2’s use of “we” when buying the dildo as speculation.  The suggestion that, when D2 said in her video recorded interview that “we” went to Mong Kok to purchase the dildo, this included the deceased, was speculation unsupported by what D2 said during her interview.  It appears that this interpretation was based on the evidence of the maid who lived nearby (PW3), who, when she was asked did the five people she said lived in the house (a male with tattoos and four females)  always come in and out as a group, agreed.[87] PW3’s account was vague and not directed to the specific occasion in question, while D2 in her interview plainly stated that she and D1 purchased a dildo together:[88]

“237. A : Mm. All right, er, according to our police investigation, er, s--someone was believed, er, (clearing throat sound)  someone had used some dildos, er, that is, to assault ah NG Yan-yu.

238. C : Mm.

239. A : Do (you)  have anything to say regarding this incident?

240. C : I heard him making a suggestion at that time for this incident.

241. A : (You)  heard him, he …

242. C : (I)  heard ah Mr. CH--CHEUNG Chi-choi Dunsany making a suggestion on making the purchase.

243. A : How long ago was (it)  suggested? I mean, the date.

244. C : The date, was it --, it was two weeks ago, two or three weeks, I don’t --, can’t remember (it)  exactly.

245. A : That means --, that means August --, within August, right?

246. C : August --, mid-August as well.

247. A : Okay, under what circumstances did he say that to you?

248. C : He said that NG Yan-yu and the ‘yin’ (transliteration)  person --, those so-called ‘yin’ person, er, h--had …

249. A : Louder.

250. C : Er, those ‘yin’ person had sexual intercourse. Why (she)  could have sexual intercourse with ‘yin’ person? It’s because she was, er, a virgin. [A: Mm.] He said that, if, er, the virginity was lost, she d--didn’t --, didn’t have to have sexual intercourse with those ‘yin’ person and (they)  would not impair her --, that is, (they)  would not impair her yang qi or could not make something bad out, that is, could no-(t)  --, er, (she)  would not have some bad energy.

251. A : Mm, all right, er, after listening to him, what happened afterwards?

252. C : After that, I had some doubts in fact. I thought ‘What? Like that, using those things’. [A: Mm.] Then, he said that it was actually necessary, [A: Mm.] and then we --, went to Mong Kok together probably to make the purchase.

253. A : Mm, when was it?

254. C : I can’t remember. (We)  probably made the purchase a few days after listening to him.

255. A : Who is ‘him’ that you are talking about?

256.  C  : Er, after listening to CHEUNG Chi-choi Dunsany, [A: Ah.], (we)  went to Mong Kok together to make the purchase.”

74.  It was not D2’s case that she had an honest but mistaken belief the deceased consented to the penetration of her vagina with a dildo.  Her evidence was that the deceased was plied with alcohol and semi-conscious.  Moreover, when D2 was asked whether her daughter “knew that such ritual would be conducted”, she replied that her daughter was not told.[89] The suggestion that the deceased was informed that she would be penetrated with a dildo and consented to it was plainly contrary to D2’s statements in her video recorded interview.

75.  The defence of honest but mistaken belief concerns whether the victim has conveyed consent, not whether the accused believed it was correct and not illegal.  The application of the defence was misconceived and the judge was right not to give a direction on this basis.  The jury were asked to specifically to address the question of consent and by its verdict found that it was not a case where the deceased consented or may have consented to the indecent assault.

76.  The complaint that the judge’s summing-up was unfair and unbalanced was not sustainable.  As rightly pointed out by the respondent, the prosecution adduced evidence from numerous witnesses, while both D1 and D2 elected not to testify or call any defence witnesses.  Consequently, a large proportion of the judge’s summing-up referred to the prosecution evidence, which was not materially in dispute, and in any event included in detail the statements of D1 and D2 in their video recorded interviews.  The summing-up was not unfair and did not give an impression that D2’s case was weak. 

77.  It followed from what I have stated that I was not persuaded that Grounds 1 and 2 were reasonably arguable.

The appeal against sentence

78.  Both D1 and D2 complained that their sentences for indecent assault, an offence with a maximum penalty of 10 years’ imprisonment, were manifestly excessive.  They relied on various cases they claimed were similar, arguing that a sentence of 10 years was not warranted.  However, as pointed out by the respondent, those cases were distinguishable.

79.  This Court in HKSAR v Chow Yuen Fai [90] held that in indecent assault cases it is neither possible nor practicable to fix a tariff, given the varied circumstances in which these offences can arise.  For this reason, the Court also noted that comparing cases is seldom of any utility when sentencing indecent assault cases.  [91]

80.  The judge, in her sentencing reasons, explained that imposing the maximum sentence is rare, but noted that the facts of this case were so serious that it was difficult to contemplate a more serious case.[92] She described the offending as a vicious, cruel, immoral, and inhumane act[93], which would have been “very horrendous” for the victim[94].

81.  The respondent submitted that the judge was justified in characterising this as a most serious case of indecent assault, given severe aggravating factors, including the gross indecency of the assault, the breach of trust, and the perpetration of the offence against a helpless, mentally incapacitated victim : HKSAR v L.C.H. [95] and HKSAR v Chan Ching-ho [96].

82.  In acknowledging that the sentences were “robust”, the respondent accepted that D1’s and D2’s applications for leave to appeal against sentence were reasonably arguable.

83.  It is unusual to impose the maximum sentence under law, which is generally reserved for the worst cases of its kind.  This is an appropriate case for the Court of Appeal to assess whether the maximum sentence was justified in the circumstances, and I therefore granted D1 and D2 leave to appeal against sentence.

Conclusion

84.  For the reasons stated:

1.   D1 was granted leave to appeal against his conviction for Count 3 on Ground 3, regarding the failure to give a direction on causation and the related question of the need for a Nedrick/Woollin direction.  His application for leave on all other grounds relating to Counts 1 and 3 was refused as they were not reasonably arguable.

2.   D2 was refused leave to appeal against her conviction for Count 2, as the grounds advanced were not reasonably arguable.

3.   Both D1 and D2 were granted leave to appeal against their sentences for Counts 1 and 2, respectively.

85.  D1 and D2 are reminded of their respective rights to renew their applications for leave to the Court of Appeal in respect of the refused conviction grounds.  However, they are also informed of the potential consequences of doing so, which may include a direction for loss of time spent in custody pending their appeals, should the Court find their renewal applications lack justification.