HKSAR v. WONG WAI MAN AND OTHERS

CACC 459/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 459 OF 2001

(ON APPEAL FROM HCCC 333 OF 2000)

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D E C I S I O N

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Hon Ma JA (giving the Decision of the Court):

Introduction

1. On 26 September 2001, the Applicants (Wong Wai-man (the 1st Applicant), Hau King-yeung (the 2nd Applicant) and Lee Kar-yeung (the 3rd Applicant)) were convicted after trial by a jury before Gall J of the murder of one Ma Chun-mo ("Ma") on 17 December 1996. The jury returned a 5 to 2 verdict for each Applicant.

2. On the same day, the 1st and 2nd Applicants were sentenced to life imprisonment. On 1 November 2001, the 3rd Applicant was sentenced to a term of 24 years' imprisonment (he was aged 15 at the time of the offence for which he was convicted and accordingly, section 2 of the Offences Against the Person Ordinance Cap. 212 was applicable).

3. By Notices of Application dated 15 October 2001, 28 September 2001 and 26 November 2001, the Applicants respectively applied for leave to appeal against their convictions. By a Notice of Application dated 3 May 2002, the 3rd Applicant also applied for leave to appeal against sentence out of time. He abandoned the Notice of Application for leave to appeal against conviction on 9 September 2002.

4. There was therefore before us at the hearing on 10 June 2003:-

(1) The 1st Applicant's application for leave to appeal against conviction.

(2) The 2nd Applicant's application for leave to appeal against conviction.

(3) The 3rd Applicant's application for leave to appeal against sentence out of time.

5. At the hearing, Mr Keith Oderberg represented the 1st Applicant, Mr Philip Ross appeared for the 2nd Applicant and Mr Richard Donald appeared for the 3rd Applicant. We dealt with the 1st and the 2nd Applicants' applications and said that we would first give our decision on their convictions, leaving for further submissions any consequential matters which may arise out of our decision.

6. We first set out a brief procedural background to the present appeal and then focus on the trial itself and the learned judge's summing up. As our decision does not deal with the 3rd Applicant's application, I shall hereinafter refer to the 1st and 2nd Applicants as the Applicants.

Procedural background

7. The trial before Gall J from which the present applications are brought, was a retrial of the three Applicants. In 1998, they (together with another accused) had been tried before Beeson J and a jury for the same offence. Following the trial, on 24 May 1998, the Applicants were all convicted of murder and the 4th accused was convicted of manslaughter.

8. All three Applicants then sought leave to appeal against their convictions, with the 3rd Applicant also applying for leave to appeal against sentence (he had been sentenced to 30 years' imprisonment). On 27 August 1999, the Court of Appeal (Nazareth VP, Wong and Keith JJA) dismissed their applications against conviction (the judgment of the Court of Appeal is reported in [1999] 4 HKC 161). On 15 October 1999, a differently constituted Court of Appeal (Nazareth VP, Stuart-Moore VP and Gall J) dismissed the Applicants' motion for leave to appeal to the Court of Final Appeal on their convictions and also dismissed the 3rd Applicant's application for leave to appeal against sentence.

9. However, leave to appeal to the Court of Final Appeal was granted by the Appeal Committee of the Court of Final Appeal on 7 April 2000. The question of law certified to be one of great general or public importance was stated as follows:-

"Can the prosecution rely on differences between the confessional statements of co-accused for the purpose of refuting allegations that those confessions were concocted by the police?"

10. The Court of Final Appeal allowed the Applicants' appeal on 3 November 2000 in relation to the question set out above and ordered a retrial (see (2000) 3 HKCFAR 322).

11. The retrial ordered by the Court of Final Appeal was the relevant trial with which the present appeal is concerned.

The trial and the judge's summing up

12. There was no dispute that Ma was killed on 17 December 1996 in a flat in Tai Kok Tsui in Kowloon in the presence of the Applicants, although his body was never found. The 1st Applicant did not dispute either that he had caused Ma's death by strangulation. The Applicants both accepted that they attacked the victim and that Ma died in their hands.

13. However, there was much dispute at trial over the circumstances of the death and in particular as to the question of the Applicants' intention at the relevant time. The prosecution case was almost entirely dependent on various statements made by the Applicants to the police. The learned judge was at great pains to emphasise to the jury the importance of these statements. In his summing up, the judge refers to these statements as being "very very important". These statements comprised records of interviews as well as transcripts of video recordings of interviews. Altogether, we were shown 5 such statements. The prosecution alleged that the contents of such statements represented the truth and if so, the constituent elements of murder were made out against each Applicant.

14. The Applicants each gave evidence at trial.

15. It is unnecessary to set out in detail what each Applicant said but essentially, they were alleging as follows:-

(1) Both Applicants denied any pre-conceived agreement to kill the victim and therefore denied the contents of their statements to this effect. They said that any confessions contained in the statements were fabricated or made involuntarily.

(2) They said that the plan (if there was one) was only to render Ma unconscious, tie him up and then reason with him (there was some evidence to suggest that Ma was a loan-shark to whom the Applicants owed money).

(3) The 1st Applicant said that in the course of trying to render Ma unconscious by placing a plastic bag over his head, he struggled and it was then that he took out a wire to strangle him. His case was that at no stage did he intend to kill Ma or cause him serious harm. He also asserted that he was not in control of himself at the time he strangled Ma and submitted that the prosecution had not demonstrated that he was not provoked at the relevant time either.

(4) The 2nd Applicant admitted he had fought with the victim in the flat but asserted that he did not intend to kill him or cause him serious harm. He also said in his evidence that as he struggled with the victim, he picked up a screwdriver to hit him but accidentally stabbed the 1st Applicant instead, causing him to bleed in the head. This was relied on by Mr Oderberg to support the 1st Applicant's case on provocation.

16. The learned judge referred to the statements and to the Applicants' case in the course of the main part of his summing up to the jury. During this exercise, he also reminded the jury of the following:-

(1) The requisite burden and standard of proof.

(2) That the jury was not to indulge in speculation although it could draw inferences from facts.

(3) The meaning of evidence upon which the jury could find established facts or from which it could draw inferences.

(4) The importance of not simply comparing the evidence of the accused either as between themselves or seen against the prosecution's evidence. The learned judge specifically alluded to any comparison between the Applicants' evidence and that of the police. The learned judge said, "You must consider all of the evidence from all sources".

17. The judge also directed the jury as to the different factual situations involved in a finding of murder or manslaughter. Thus, the jury was directed on:-

(1) The meaning of an intention to kill.

(2) Provocation.

(3) The possibility that the intention may only have been to cause some harm to the victim but not serious harm.

The latter two situations are of course relevant to a finding of manslaughter.

18. We have used the term "the main part of [the judge's] summing up" in the previous paragraph. By this is meant that part of the summing up which took place on the morning of 25 September 2001 before the jury first retired (at 11.58 am).

19. Later on the same day, the jury returned with three questions, namely:-

(1) "Manslaughter can be unlawful and provoking, please explain the term 'unlawful acts'."

(2) "Intentional to seriously harm someone can be a murder case. Please explain the term, 'seriously harmed' to what extent do you describe a person as seriously harmed?"

(3) "We have doubt on the evidence by common sense, can we disregard this evidence? For instance, we have doubt on the evidence given by police and the accused. Can we disregard both evidence?"

20. At 5.20 pm, in the absence of the jury, the learned judge discussed these questions with counsel and proposed various answers to give to the jury with which counsel for the Applicants appeared to agree.

21. After discussing these questions with counsel, the jury returned to court at 5.46 pm. The judge gave the following answers to the three questions earlier raised by the jury:-

"Members of the jury, through your foreman you have sent down a series of questions which I have discussed with counsel. The first question is, 'Manslaughter can be unlawful and provoking, please explain the term "unlawful acts".' And this is the reply to that question. An unlawful act is in the context of this case the unlawful use of force upon Ma. Each of the accused admitted in evidence using force on Ma and from their evidence you may be satisfied that the force each used was unlawful.

The second question was, 'Intentional to seriously harm someone can be a murder case. Please explain the term, "seriously harmed" to what extent do you describe a person as seriously harmed?' You will remember that I said to you I would not define the words beyond reasonable doubt, we just use the ordinary words. In the same way I am not going to give you examples of serious harm but to tell you this, serious harm means really serious personal physical injury. It must be a physical injury to the body and it must be what in the normal use of the words would be described as really serious.

Your last question is, 'We have doubt on the evidence by common sense, can we disregard this evidence? For instance, we have doubt on the evidence given by police and the accused. Can we disregard both evidence?' The first part of my answer is, yes, but let me add to that. Your approach must be to use your common sense to consider all of the evidence led by the prosecution against the accused within the framework of all the evidence you have heard. From that prosecution evidence you must then decide, using the tests that I have given you regarding the evidence, what of it you can be sure is true. That is the evidence upon which you rely in considering your verdict. Any evidence from either the prosecution witnesses or the accused or the defence witness which you are not sure is true, you disregard for all purposes."

22. At 5.52 pm the jury retired again. It returned to court at about 8.07 pm when the judge, after remarking that they had sat for some 10 hours that day, retired the jury for the night.

23. The next day, at 3.01 pm, the jury returned to court and announced its verdict of 5 to 2 against each of the Applicants (including the 3rd Applicant). The jurors were then discharged.

The main issue on appeal

24. Both Applicants eventually raised as their main ground of appeal a criticism of the judge's answer to the third question of the jury (set out in paragraph 21 above). The criticism was directed specifically at the following words, "Any evidence from either the prosecution witnesses or the accused or the defence witness which you are not sure is true, you disregard for all purposes" (emphasis added). These words followed similar utterances earlier in the main part of the judge's summing up, namely:-

(1) "You either believe a piece of evidence as true so that you are sure, or you disregard it".

(2) "It is for you to assess what weight should be given to the statements. If, for whatever reason, you are not sure that any part of a statement is true, you must disregard that part".

25. The criticism made by counsel was this. By directing the jury as aforesaid, the learned judge effectively invited the jury to treat the prosecution and defence evidence in an identical manner. Given the burden and standard of proof, this was not a proper direction. The jury was told that, just like the evidence from prosecution witnesses, if members of the jury were not "sure" that what the Applicants or their witnesses were saying was true, then they had to disregard such evidence "for all purposes". The error here was that this therefore left no room for the jury to take into account any of the defence evidence which it thought might be true (as opposed to the jury being satisfied that it was actually true).

26. We see the force in these submissions and have reached the conclusion that there was a material misdirection to the jury, even though the relevant answer to the jury's question was one with which counsel for the Applicants appeared to agree. We are of this view for the following reasons.

27. First, a jury should not be told in such absolute terms that if it was not sure (that is, not satisfied) that what the defence witnesses were saying was actually true, then it had to disregard such evidence for all purposes. The proper (and indeed, usual) direction is that members of the jury are required to take into account not only those parts of the defence evidence that they are satisfied are true, but also to take into consideration those parts of the defence evidence that may be true. As Stuart-Moore VP said in HKSAR v Sze Kwan-lung & Ors, unreported, CACC 92/2002, 12 June 2003, at paragraph 110, "The judge omitted to use the formula which is usually given in such circumstances that the jury could use such answers in his favour that were or may have been true". Stock JA, in the same case, said this at paragraph 143, "More pertinently, how can this Court be confident that the jury has not taken the judge literally and discarded such defence evidence the truth of which was not established to the jury's satisfaction?"

28. What we have just set out can be regarded as a facet of the burden and standard of proof in criminal proceedings. There is no burden on the defence to prove or disprove anything. That burden, however, is firmly placed on the prosecution. Obviously, a fact raised by the defence, if actually believed by the jury, will be duly taken into account. However, even where a fact raised by the defence is not established to the satisfaction of the jury, yet if it is of the view that it may be true or has a ring of truth about it, the jury should take it into account when deciding whether or not the prosecution has discharged the requisite burden of proof.

29. Secondly, the proper treatment of the defence evidence is particularly acute in situations (like the present case) where the jury has to deal with conflicts between the evidence adduced by the prosecution and that of the defence. A common dilemma faced by juries can be stated as follows:- as between the prosecution evidence and the defence's, which should be believed and what is the proper approach? Here, the position is, with respect, well stated in the decision of Brennan J (with whom Deane J agreed) in R v Liberato (1985) 159 CLR 507. In that case, the High Court of Australia, in an application for special leave, had to consider in particular the direction given by a judge to the jury in a case which turned on the conflict between the prosecution's evidence and that of the defence. The majority of the High Court refused leave to appeal. Brennan J and Deane J were, however, in the minority in granting leave, but the particular passage we would highlight was not controversial and in our view makes good sense. At 515, Brennan J said this:-

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue." (Emphasis added)

30. The words we have highlighted in the passage from Liberato, in the context of a jury's consideration of the prosecution and defence evidence in a criminal case, provide an example of the general approach to defence evidence referred to in paragraphs 27 and 28 above.

31. All this of course stems from the fundamental directions in a criminal case as to the burden and standard of proof. Whether or not in any given case a judge will need to go into such detail in his summing up is a matter best left to the individual judge depending on the circumstances.

32. Thirdly, we are of the view that such directions to the jury in relation to evidence adduced by the defence as set out in paragraphs 27 to 29 above, were particularly required in the circumstances of the present case. We emphasise the following facts and matters:-

(1) While perhaps in many cases, the standard directions as to burden and standard of proof (which the learned judge clearly gave in his summing up) may be enough, it was essential for the judge to have given specific directions to the jury in the present case to make clear the matters we have referred to above, especially when the jury was clearly in some difficulty as to the treatment of the prosecution and defence evidence. The jury's third question demonstrates this. Where a jury, as in the present case, is in any difficulty relating to a matter as fundamental as the burden and standard of proof, it is incumbent on the trial judge to ensure that the jury is clearly and properly directed.

(2) Mr Daryl Saw SC for the Respondent accepted that if one simply looked at the last sentence of the judge's answer to the jury's third question (as set out in paragraphs 21 and 24 above), there might be said to have been an irregularity. He submitted, however, that overall the judge, elsewhere in his summing up, had properly, clearly and cogently directed the jury on the burden and standard of proof. This is true, but when a jury poses a question that demonstrates that it has difficulties as regards the burden and standard of proof, the judge had to clarify the situation. In the present case, the learned judge did not. Whatever he had earlier said in relation to the burden and standard of proof, the last words that the jury heard by way of direction in the case before they finally retired were the words set out above. Mr Saw also submitted it was unnecessary for the judge to have given directions along the lines as stated in paragraphs 27 to 29 above since the factual issues before the jury were 'black and white'. We are not entirely sure what Mr Saw meant by this term. If he meant to convey the notion that the factual issues in the trial were simply without nuances, we would not agree. For example, the jury was not presented simply with the task of accepting or not accepting the facts contained in the Applicants' various statements. The Applicants were themselves saying that parts of the statements (albeit they were made involuntarily) were true while other parts were not. The jury in the trial below was therefore placed in the position of having to determine whether or not certain parts of what the Applicants were saying were true, may be true or false, and all this seen against the prosecution evidence. The jury recognised this difficulty; hence the third question.

(3) The verdicts reached for each Applicant (including the 3rd Applicant) were 5 to 2. It is fair to infer that the jury might well have had difficulties in its consideration of the evidence. It was therefore crucial for the jury to have been properly and fully directed.

33. For the above reasons, we are of the view that the convictions of the 1st and 2nd Applicants must be quashed.

Other issues raised by the 1st and 2nd Applicants

34. In view of our conclusion that there has been a misdirection to the jury having the consequence that the convictions against the 1st and 2nd Applicants should be quashed, it is unnecessary to determine the other issues raised on their behalf.

35. It must, however, not be assumed that we would have found in favour of the Applicants on the other issues. In particular, the ground of appeal raised by the 2nd Applicant (with which Mr Oderberg did not associate his client) that there was an appearance of bias, seem to us to be extremely weak. The argument raised was that since the learned judge was one of the judges in the Court of Appeal when the 3rd Applicant's (not the 2nd Applicant's) appeal against sentence (in the previous trial) was dismissed and since the Court of Appeal had made various remarks in that appeal (including a description of Ma's death as being "brutal"), the learned judge should not have presided over the present trial. This is not an argument that we need to resolve finally but it is a particularly weak one. The learned judge, when sitting in the Court of Appeal in the 3rd Applicant's appeal against sentence, was not in the position of having to evaluate or consider the strength or otherwise of the facts going to the conviction of the 3rd Applicant (or any other Applicant). He was simply considering the question of sentence. Additionally, it is apparent that it was not until after the jury's verdicts in the trial with which we are presently concerned that the judge discovered, when counsel pointed this out, that he had been a member of the Court of Appeal almost two years earlier in the proceedings to which we have referred in paragraph 8 above. It is accepted by Mr Ross, on the 2nd Applicant's behalf, that neither the judge nor counsel had realised before that stage that the judge had had any previous connection to the case. With all of these factors in mind, it is apparent that to describe this as an extremely weak ground of appeal may be over-generous and that Mr Oderberg's reluctance to support Mr Ross' ground was well-advised.

Outcome

36. As we have said, the convictions of the 1st and 2nd Applicants must be quashed. In these circumstances, we would give leave to the 1st and 2nd Applicants to appeal against conviction and, treating the hearing so far as the hearing of the appeal itself, quash their convictions. As to any other orders that should be made, we shall hear from the parties first. Until we do so, the Applicants shall remain in custody.