HKSAR v. HAN CHIN CHOU

CACC 190/2019

[2021] HKCA 511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 190 OF 2019

(ON APPEAL FROM HCCC NO 233 OF 2018

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REASONS FOR JUDGMENT

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Hon M Poon J (giving the Judgment of the Court):

A. Introduction

1.  The applicant was convicted after trial before Toh J (“the judge”) and a jury of murder of Mr Wong Kam-tai (“the deceased”), contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap. 212 on 11 June 2019 and was sentenced to life imprisonment.

2.  Having heard the application, we refused leave and dismissed the appeal.  We now give our reasons.

B. The Prosecution Case

3.  At 5:50 p.m.^[1] on 17 March 2017,  the applicant made a “999” call reporting that he was hit and injured by an unknown person in his home at Hut No. 51A, Wo Liu Hang Village, Fo Tan (“the Hut”)^[2].

4.  The applicant was sitting at the entrance of the Hut when the police and ambulancemen arrived at the Hut shortly before 6 p.m with no visible injuries.  His trousers and shoes were bloodstained. He pointed in the direction of Room 3, the innermost room at the far end of the corridor^[3], and told the ambulancemen that his assailant was inside.  He claimed that he was hit by a Mainland man with a wooden club causing him much pain.

5.  The body of the deceased, Mr Wong Kam-tai, was found naked on the floor in Room 3.  His head was wrapped with a piece of blood soaked clothing.  There were extensive injuries to the head, the body and the limbs.

6.  The applicant denied knowing the deceased.  On his arrest, he remained silent under caution^[4]. Various items including two hammers, two wooden bars, a pair of pliers, a surgical mask, plastic gloves and garments, were seized from Rooms 1 and 3^[5]. A pair of bloodstained shoes were seized outside the Hut^[6]. 

7.  The applicant took part in four Video Recorded Interviews (“VRIs”)^[7] on 18 and 19 March 2017. Their admissibility was not challenged^[8].  In those interviews, he denied the offence and claimed that the deceased and Mr Lai, to whom he had sublet Room 3, had a dispute and a fight during which he remained in Room 2 and made the 999 call.  He had no idea who the deceased was.

8.  The CCTV footage showed that in the hour or so before the 999 call was made, the applicant appeared in the alley in the direction of the cockloft and walked towards the Hut three times.  The third trip was made to the cockloft at 17:26:46 hours and at 17:32:04 hours he reappeared in the alley again, with all his clothes and shoes changed.

9.  It was an admitted fact that the deceased lived with his wife and son at Hut No. 54B of Wo Liu Hang Village^[9].  He was last seen alive in the Village at around 2:30 p.m. that day by a decoration worker who worked for him^[10] and a fellow villager^[11]. 

10.  It was also an admitted fact that the deceased was last seen by his wife, Madam Du Fa-mei, at about 11:30 a.m. that day.  By 8:30 p.m., she noticed that the deceased had not returned home.  Their son was sent to look for him and subsequently returned with police officers to inform her that the deceased was dead^[12].

11.  Dr Yeung Sze-mang (“PW6”), who attended the Hut on 17 March 2017, was called as an expert in interpretation of blood patterns and bloodstains at crime scenes.  She attended the Hut on 17 March 2017.  She gave her opinion as to where the attack had likely started.  She was of the view that the deceased was likely to have been quickly subdued upon attack, and would have retreated of his own accord, or was forcibly dragged along the corridor towards Room 3.  She told the court that the deceased could have been further attacked when he was at a low position or near the ground, before he bled to death.  She found that one of the bloodstain samples on the wall of the corridor originated from an unknown male^[13].

12.  PW6 examined various items seized from the Hut by the police. She found that the two hammers seized from Rooms 1 and 3 could have been weapons used in the attack.  A surgical mask and a red glove seized from Room 3 contained DNA of both the deceased and the applicant.  A number of bloodstained garments seized by the police from the cockloft and the clothes worn by the applicant at the time of his arrest contained DNA which could all have originated from the deceased.

13.  A blooded imprint found on a wooden board inside Room 3 was examined by a forensic scientist, Dr Tam Cheok-ning (“PW7”).  It was found to match the sole pattern of a pair of boots seized from the cockloft.

14.  No evidence of fingerprints of the applicant was found on any of the hammers found inside the Hut, nor was there any evidence of fibre transfer between the garment exhibits seized from the applicant and the deceased^[14].

15.  On 21 March 2017, an autopsy of the deceased was carried out by Forensic pathologist, Dr Poon Wai-ming (“PW5”).  His report was admitted by consent as Exhibit P23^[15].

16.  It was his opinion that the cause of death was “multiple injuries” which resulted in extensive blood loss.  Extensive blunt impact injuries were found all over the deceased’s body externally.  There were some deep lacerations on the head which exposed the underlying scalp and the skull, indicative of the use of a hard object with an oval-shaped striking surface and of considerable weight.  Other linear and tri-radiate shaped lacerations indicated that some of the blunt impact injuries were inflicted by a hard object with linear-edged striking surface and protruding corner.

17.  Some of these linear lacerations were associated with fractures of the underlying limbs.  Dr Poon opined that the object would have been of considerable weight, the injury patterns found on the deceased could have been caused by a hammer^[16]. He was of the view that the linear and tri-radiate-shaped lacerations on the deceased’s limbs were consistent with defensive injuries sustained when he lied on the ground and raised his upper and lower limbs to ward off blows from hard objects by the assailant.

18.  The following witnesses were called by the Prosecution to refute the applicant’s allegation of not knowing the deceased. Mr Wong Ka-lok (“PW11”), the son of the deceased confirmed that his father once had a dispute with “Tai Kau” living in No. 51.  Villagers Mr Cheng Kam-sang (“PW12”) and Mr Lau Hon-ning (“PW13”) identified the applicant as “Tai Kau” in Court.  WPC56413 (“PW14”) testified about a dispute over drainage problem about 2 years prior to the incident between the deceased and the applicant and they eventually agreed to go to the Lands Department to have the matter resolved^[17].

C. The Defence Case

19.  The applicant elected to give evidence but called no witnesses.  He had been living in Wo Liu Hang Village since 1974. 

20.  He testified that on 17 March 2017, he was attacked inside the Hut by five persons, including three fellow villagers, armed with sticks, water pipes and hard objects.  He grabbed a stool to resist the attack.  It was chaotic and he could not tell what actually happened during the attack.  At some stage he managed to make a 999 report.  Before the police arrived he had cleared up odds and ends in the corridor, taken the dirty garments to the cockloft for washing and changed his clothes. He had no idea why the deceased’s body was inside the Hut.

21.  The applicant said he did tell the ambulancemen that the deceased was one of the five attackers, but he did not know what had happened to the deceased.  He also said that he did mention to the police officers who arrived later that three of the five attackers were his fellow villagers.  He said that the police refuse to let him go to the hospital.

D. Grounds of Appeal

22.  Mr Michael Leung, for the applicant, advances 5 grounds of appeal against conviction.

D1. Ground (1): The Judge wrongly descended into the arena

23.  Mr Leung complains that by prompting the prosecution to call Madam Du to give prejudicial hearsay evidence on the previous animosity between the deceased and the applicant^[18], which led eventually to the calling of PW11 to PW14, whom the prosecution had indicated at the case management hearing they were not intending to call,  the judge had entered into the arena, thus giving the reasonable bystander the impression that she had assisted the prosecution to strengthen its case against the applicant.  Accordingly, the applicant was deprived of a fair trial: R v Yeung Mau-lam^[19].

24.  Mr Leung further submits that PW12, who was originally called solely to establish the applicant’s identity and his acquaintance with the deceased, was wrongly permitted to give his evidence of the applicant’s character as being “barbarous”.  This, it is submitted, was mere propensity evidence which should have been excluded altogether: HKSAR v Zabed Ali^[20]. It is contended that the judge failed properly to direct the jury that the fact that the applicant had been shown to have a bad character or a propensity for committing crimes did not mean he was guilty of the present offence.

D2. Ground (2): The Judge wrongly prevented the Defence from effectively cross-examining Dr Poon Wai-ming, the Pathologist

25.  Given the importance of the pathologist’s evidence in this case, it is submitted that the defence was entitled to explore, in the light of Dr Poon’s opinion of the deceased’s wounds being ‘defensive injuries”, whether any injury taken individually was defensive or offensive^[21]. The judge wrongly intervened and prevented the defence from asking about individual injuries and their sequence^[22] on the basis that Dr Poon was not in a position to answer as he was not present at the scene^[23].  The judge further prevented the defence from following up on Dr Poon’s answer that he could not “exclude the possibility that each and every individual injury could have been caused by other possibility”^[24], saying that was merely Dr Poon’s opinion and it was not conclusive^[25].

26.  On the other hand, in the summing up, the judge specifically invited the jury to consider Dr Poon’s remarks when answering the applicant’s case of “self-defence”, and added that it was for them to decide whether to accept his opinion that the deceased sustained “defensive injuries” when he was lying on the ground suggesting that he was not attacking the applicant at that time^[26]. Mr Leung submits that the judge should not have stepped in and commented adversely on the line of cross-examination adopted by the defence.

D3. Ground (3): The Judge’s Highlight of “Lack of Puttage” of the Applicant’s Case in the Summing-up

27.  The applicant was crossed-examined on the following five matters which were first mentioned by him in his examination-in-chief and were never put to the prosecution witnesses:

(1) the police refused to let him see a doctor^[27];

(2) the police swore at him and he swore back^[28];

(3) he had requested to go to the hospital^[29];

(4) he did mention to the second batch of the police that three of the attackers were villagers^[30];

(5) his son was also made to attend his VRIs^[31].

Mr Leung submits that the lack of puttage was highlighted  in the judge’s  summing-up but she failed to give a proper direction to the jury, which might have led them to conclude that the applicant must have lied and was therefore guilty of the offence: HKSAR v Chan Hing-kai^[32].

D4. Ground (4):The Judge’s Failure to Give a Proper Direction on Lies

28.  Mr Leung accepts that the applicant had given three different accounts of events:

(1) he reported that he was attacked by an unknown person in the Hut in the 999 call and at the scene;

(2) in the VRIs he claimed that his tenant, Mr Lai, had a fight with the deceased in the Hut; and

(3) for the first time in court while giving evidence he said he was attacked by a group of five, three of which were fellow villagers and the deceased was one of them, and he had to ward them off with a stool. 

It was submitted that the judge erred in failing to give a full lies direction, failing which the jury might have been led into impermissible line of reasoning that the simple reason for his lies must be that he was guilty of the offence.

D5. Ground (5): The Judge’s Unfair and Unbalanced Summing-up

29.  Mr Leung submits that the judge’s summing-up was so unbalanced to the extent that it was akin to another prosecution speech to the jury in the following four respects:

(1) Downplaying the importance of the presence of a bloodstain of an unknown person in the Hut by telling the jury that, what mattered was whether it was the applicant who inflicted those wounds on the deceased, when that piece of evidence could be supportive of the defence case that there was at least another unknown person present apart from the deceased and the applicant^[33]:

“Now, members of the jury, as I told you, we cannot know everything there is to know about a case and this is an example. If you think it is relevant, then by all means consider it. But it is just according to the -- although according to Ms Yeung, she cannot -- she does not know where this S4 blood came from, so she cannot help us with it. It is from an unknown source, so, members of the jury, it is just something that is not known.”^[34]

(2) The judge erred in asking the jury to ignore Mr Leung’s closing submission that there was no evidence of any expiry date of the DNA samples found at the scene, by telling them that there was no cross-examination on this issue and it was mere speculation^[35]  ;

(3) The judge wrongly dismissed the defence submission about the lack of evidence that the items in the Hut were not touched or moved before their examination by the experts as mere speculation^[36]  ;

(4) The judge wrongly told the jury to ignore the defence submission as to the lack of motive, which was a relevant factor in determining whether the applicant had the necessary mens rea^[37].

30.  It is submitted that the total effect of all the grounds would cause a reasonably informed bystander to form the view that the applicant was deprived of a fair trial, thus rendering the conviction unsafe and unsatisfactory.

E. The Respondent’s Submissions

31.  Mr Ira Lui, Assistant Director of Public Prosecutions, appeared for the respondent.  He advances the following replies to the grounds of appeal.

E1. Ground (1): The Judge’s Entering into the Arena

32.  Mr Lui submits that the judge raised the issues about the geography of the Village, the timing of the CCTV footages^[38] and whether the deceased’s wife would be called when the prosecution case was near to its close since she was concerned about the lack of background information for the jury to fully understand the case against the applicant.  She made the observation that without this background information, the deceased would have remained “a cold body on the pathology’s slab”^[39].    

33.  It is submitted that with the exception of PW14, all statements of PW11 to PW13 were part of the committal bundle. The additional statement of PW14 was obtained and served on a Friday during the trial.  It is worth noting that none of PW11 to PW14 were cross-examined.  As such, no prejudice or unfairness to the defence could be demonstrated: HKSAR v Chow Ho-yin^[40].

34.  Mr Lui draws our attention to the fact that the judge likewise commented on the sufficiency of the defence evidence^[41] to raise the defence of “self-defence” before the end of the applicant’s examination-in-chief, which demonstrated the even-handedness of judge, and the applicant’s complaint of the judge’s partiality could not be sustained.

35.  Mr Lui disagrees that the comment on the applicant’s demeanor as “barbarous” by PW12 was evidence of propensity or bad character, since PW12 did go on to elaborate that the applicant “always had the say and would not allow other people to talk”^[42]. This could not be taken to suggest any disposition of violence and so could not in any way have undermined the applicant’s defence of “self-defence”.

E2. Ground (2): The Prevention from Effective Cross-Examination of Dr Poon Wai-ming, the Pathologist

36.  Mr Lui disagrees that the defence was prevented from eliciting from Dr Poon evidence which could be advantageous to the applicant. When Mr Leung tried to ascertained from Dr Poon whether any single injury viewed in isolation could also be consistent with offensive injuries suffered by the deceased mounting an attacking position, what the judge did was merely trying to clarify his questions and to understand the defence propositions.  Mr Lui submits that, Dr Poon quite fairly did not dismiss this suggestion right away but went on to explain why he considered that those injuries, in their totality, could not have been offensive or accidental and Mr Leung’s suggestion “just failed basic standard of logic”^[43].  Mr Leung was content to leave the matter at that.^[44]

37.  The judge left the evidence of Dr Poon entirely open to the jury^[45], and reminded the jury they were not bound to accept or act upon it even if the expert evidence was unchallenged^[46].

38.  Mr Lui contends that the applicant’s complaint is nothing more that a failure on his part to elicit evidence in favour of the defence when no further questions were asked.

E3. Ground (3): The Judge’s Highlight of “Lack of Puttage” of the Applicant’s Case in the Summing-up

39.  Mr Lui submits that the judge referred to the five matters which were not put to the prosecution witnesses in the course of her review of the defence evidence.  At no time did she express any personal view on the lack of puttage, nor was the jury directed expressly or implicitly to draw any adverse inference against the applicant for that reason.  Those matters were put as neutrally as possible and so did not exceed ‘proper bounds’ both in form and in substance, and in accordance with the principles elucidated in Chan Hing-kai^[47].

E4. Ground (4):The Judge’s Failure to Give a Proper Direction on Lies

40.  The Respondent submits that the prosecution never suggested to the jury that the applicant’s lies could be used as evidence of guilt, or to strengthen the prosecution case^[48]. Counsel for the prosecution only criticised the applicant’s credibility in general.  A full lies direction was therefore unnecessary, as noted in Jim Fai v HKSAR^[49]:

“23. First, the allegation that the appellant had lied in the witness box was nothing more than a submission that the accused should not be believed. The prosecution was not using it in any other way. Nor was there any suggestion that there was a risk the jury might consider the mere fact that the appellant was not telling the truth in the witness box as evidence of guilt. If his evidence …was not believed, it simply means that there was no explanation which might cast doubt on the prosecution case. A lies direction was, as the Court of Appeal rightly said, totally unnecessary in these circumstances.”

41.  Mr Lui submits that the judge had properly directed the jury at the outset of the summing-up that even if the applicant had lied, the prosecution still had to prove its case.  She had also rightly directed the jury that even if proven that the applicant had lied, that might be due to innocent reasons and that alone would not make him guilty; they should put aside the parts that they found him lying about and go on to consider other parts that he did not; and most importantly, if any of the different versions given by the applicant was true or might be true, they must acquit him^[50].

42.  In light of those directions, it is submitted that there was absolutely no risk that the jury would adopt any impermissible line of reasoning and there was sufficient safeguard against the jury from doing so.

E5. Ground (5): The Judge’s Unfair and Unbalanced Summing-up

43.  Mr Lui’s view is that in criticising the summing-up as unfair and unbalanced, counsel for the applicant had “taken parts of the summing-up completely out of context and treated them in isolation”:

(1) The judge was merely reminding the jury whilst there was the presence of an unknown blood sample, they could not go beyond the evidence placed before the court.^[51]

The remark that it did not matter at all whether the deceased was alone with the applicant inside the Hut was a general remark made while highlighting the main issue in this case, namely, “whether it was the applicant who inflicted the fatal wounds on the deceased”.^[52]

(2) The judge never told the jury to ignore the submission that the DNA found at the scene could have existed before this incident.  She went on to tell them: “well, it could have been.”^[53]. On the other hand, the fact that PW6 was never cross-examined on the expiration date of DNA was also fairly brought to the attention of the jury.^[54]

(3) Similarly, the suggestion by Mr Leung in his closing submission that there was no evidence that the exhibits at the scene had not been touched or moved was never put to any of the prosecution witnesses^[55]. Neither did the applicant himself give evidence to such effect.  The judge’s direction asking the jury not to speculate was appropriate.^[56]

(4) Apart from the issue of “self-defence”, there was no evidence from the prosecution or the defence that was relevant to the issue of motive. The judge could hardly be faulted for telling the jury that since there was no evidence in that regard, there was no need to speculate as to why the deceased was killed.^[57]

44.  Mr Lui submits that all of the applicant’s complaints fail and the conviction is neither unsafe nor unsatisfactory.

F. Discussion

45.  The main issue at trial was whether the applicant killed the deceased.  There was no eyewitness to the killing and the prosecution case consisted entirely of circumstantial evidence, including forensic and medical evidence, from which the jury were invited to draw the irresistible inference that it was the applicant who had inflicted multiple injuries on the deceased that had eventually caused his death.

F1. Ground 1

46.  On the 8^th day of the trial, the judge raised a concern, in the absence of the jury, as to the lack of a map or sketch to assist the jury in understanding the geography of the Village; and the lack of evidence on the accuracy of the timestamps as shown on the CCTV screenshots^[58].  These two matters were resolved by way of further admitted facts^[59].

47.  The other matter was whether the wife of the deceased was to be called as she had mentioned in a statement that the deceased told her on one occasion that the applicant hated him and wanted to kill him.^[60]. This had led to extensive discussion between the judge and Mr Richmond, counsel for the prosecution[61] as to whether this amounted to evidence of hearsay.

48.  Eventually, the wife was not called but the prosecution called PW11, two other villagers (PW12 and PW13) and a WPC (PW14).  Except for PW14, the statements of PW11 to PW13 were in the committal bundle.  The statement of PW14 was served on the defence on 31 May 2019, and the case was adjourned in order for the defence to take instructions over the weekend.

49.  PW11 testified about an occasion where he recalled an argument between his father and “Tai Kau” although he could not remember what the argument was about.  Both PW12 and PW13 identified the applicant as “Tai Kau”.  It was during PW12’s evidence about a conversation he had with the applicant slightly more than a week before this incident that he described the applicant as a “very cool self” and a “barbarous” person (the subject of the complaint of Ground 1):

“Q: When you spoke to him, apart from his being cool, did you notice anything else about his demeanor?

A: Well, he is very cool. He is the kind of person who is barbarous.”^[62]

PW12 added this to clarify what he meant:

“A: He is barbarous because he always had the say and would not allow other people to talk.”^[63]

50.  Mr Leung complains that it was the active participation in the running of the prosecution case by the judge, urging them to revise their conduct of the trial, which resulted in a comment by PW12 that was fatal to the defence of “self defence”.

51.  This ground is misconceived.  Firstly, in view of the applicant’s claim that he did not know who the deceased was, evidence of a prior relationship constituted the relevant background of the case.  The judge would be failing in her duties if that was not properly drawn to the attention of prosecuting counsel. The importance of a judge’s case management function was stressed in the case of R v Yeung Mau-lam^[64] and approved in HKSAR v Chan Kam-keung^[65]:

“We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge's duty throughout to ensure that a trial is properly and coherently conducted.” (Yeung Mau-lam)

“13. Assessments of judicial interventions must be made recognizing the court’s duty to exercise proper management over the proceedings in what often are difficult conditions. Many, if not most, of the criticised interventions self-evidently appear to be justifiable in terms of firm case management.” (Chan Kam-keung)

52.  We do not consider what the judge did amounts to a reasonably arguable case of bias depriving the applicant of a fair trial applying the relevant test.  After the defence was informed of the prosecution’s decision to call PW11 to PW14, ample time was given to counsel for taking instructions.  We also note, as a matter of record, no further adjournment was asked for and there was no cross-examination of any of those witnesses.

53.  Secondly, in relation to PW12’s comment of the applicant as a “barbarous person”, we note that not only did Mr Leung not object to this piece of evidence, he in fact went on to assist the interpreter to give a more precise translation of the words 「橫班扮」 by suggesting “a little bit square”^[66] .  It was during this brief discussion that PW12 elaborated as to what he meant by 「橫班扮」:

“He is barbarous because he always had the say and would not allow other people to talk.”^[67]

54.  “Barbarous”, according to the Shorter Oxford dictionary, means uncivilised, cruel or savage, which is not an accurate translation of 「橫班扮」.  A better translation would be “a bit blunt, or square, or uncompromising” or all of those.  An average Cantonese speaker would have had no difficulty in understanding what 「橫班扮」meant, and we were told that all of the jurors in this case were Chinese.  The judge only said:

“And Mr Cheng’s opinion is that the defendant is very cool,「橫班扮」he said in Cantonese and always had his say and not allow others to talk and he identified the defendant and said he has a nickname of 大舊.”^[68]

55.  In any event, this comment only describes the personality of the applicant and has nothing to do with any physical disposition or propensity as to violence and does not in any way undermine the defence of self defence.  Ground 1 fails.

F2. Ground 2

56.  The judge pointed out to the jury at the outset of the summing-up^[69] that the prosecution  case^[70] relied heavily on the forensic evidence and the autopsy report to provide a basis for them to draw the inference of guilt against the applicant.

57.  It was remarked in the autopsy report that the deceased had suffered “extensive blunt impact injuries in the form of bruises, abrasions and lacerations all over the body”.^[71] and “the blunt impact injuries on forearms, wrists, knees, legs and ankles were consistent with having been defensive injuries when the deceased raised his upper and lower limbs to ward off blows from hard objects. The presence of extensive defensive injuries on knees, legs and ankles suggested that deceased was lying on the ground when the blows occurred.”^[72]

58.  The defence made a few attempts to cross-examine Dr Poon by singling out one of the wounds:

“Q. So it could have been someone using his limb against another, attacking, not defensive, attacking but the another one used a hard object to defend. Could the same, same injury be caused?”^[73]

…

“MR LEUNG: So I am asking the other way round, the one with bare hands or holding, even holding a hammer, hitting another, the other one using a hard object to defend, and then that hard object land onto the limb of the attacker, causing same injury or you would say the injuries would appear to be different? That’s my question.”^[74]

59.  The judge clarified with Mr Leung if he was asking whether any individual injury could have been a defensive injury[75]. Mr Leung, realising that it was impossible to know the sequence of the injuries^[76], eventually posed a general question asking why Dr Poon was of the opinion that they were defensive instead of offensive wounds^[77].

60.  Dr Poon explained that although he could not exclude the possibility of any individual injury being other than defensive, he formed the view that the injuries were consistent with defensive injuries on the totality of his injuries.  The fact that he had all his limbs broken indicated that he was not capable of offensive action at that time^[78].

61.  In relation to Dr Poon’s answer, Mr Leung said:

“Q: So the answer is that it cannot be conclusive. There could be other reasonable possibilities.”^[79]

Dr Poon replied:

“...I cannot grasp your logic and I don’t think it’s very logic. Basically, I think this is not a - - it just fails basic standard of logic.”^[80]

He went on to explain:

“…My point is that if you say certain individual injury could have been accidentally caused or even be an offensive injury, of course that’s possible but it could not be that the totality of the pattern of injury is caused by offensive injury or the totality of the injury is caused by offensive injury plus accidental injury. So there must be an element of impact caused by another impacting object acting on the deceased when he is not capable of offending.”^[81]

62.  When Mr Leung pressed on this topic of defensive injuries, the judge said:

“Court: Yes, well, and that’s Dr Poon’s opinion but it’s not conclusive. As he said, he is saying that the presence of all these injuries together suggests to him that these are defensive injuries. Then he demonstrated and so…

MR LEUNG: In that case, perhaps I have no further for the doctor.”^[82]

63.  It is clear from the dialogue that all the judge did was to clarify the questions being put to Dr Poon.  As evident from Dr Poon’s answers,  absent the prerequisite of knowing the sequence of the injuries, it was pointless to ask whether any particular individual injury could be an offensive wound rather than a defensive one.  Dr Poon’s conclusion of defensive wounds was based on the “totality of the pattern of injury”.  In any event, there was no evidence that the applicant had any injuries.  Further questioning in this area would have served no real purpose nor provide evidence of any forensic value.  Ground 2 fails.

F3. Ground 3

64.  During cross-examination, it was put to the applicant that he was lying in his earlier testimony that he was refused medical treatment by the police^[83], which the applicant had denied and asked for “proof” that he was lying^[84].  He was confronted with the lack of puttage of this matter to the prosecution witnesses by his counsel^[85]. This prompted a lengthy explanation from the applicant^[86].  The same line of cross-examination was adopted in relation to the other allegations against the police and the ambulancemen by the applicant^[87].

65.  In Chan Hing-kai, supra,  the Court of Appeal distinguished cases where the judge’s comments were limited to the failure to put the matter to a relevant witness from cases where the jury was specifically directed to draw an adverse inference against the accused for the lack of puttage:

“44.  The dynamics of a criminal trial can be quite complex and a failure by counsel to put an essential matter to a witness may not be the fault of an accused.  It will only be in exceptional and clearly obvious cases that a judge would go further than the usual instruction in relation to assessing the weight or cogency of the uncontradicted evidence, although to do so is “fraught with difficulty”.”

66.  The Court of Appeal held that it is open for a judge to direct the jury that they can take into account the lack of puttage in assessing the weight to be attached to the accused’s evidence on that matter^[88], although it may not be generally appropriate for the judge to make a comment to the effect that an adverse inference as to credibility may be drawn against the accused^[89].

67.  In the present case, the judge mentioned the various parts of the applicant’s evidence which were not put by his counsel to the prosecution witnesses when summarising his evidence^[90]. She did not comment or direct the jury further to the effect that an adverse inference might be drawn against the applicant for the lack of puttage.  Mr Leung conceded that neither did he draw the attention of the judge to the possibility of the jury drawing such an inference from the way she dealt with the lack of puttage.  There is no merit in Ground 3 and this Ground fails.

F4. Ground 4

68.  Mr Leung complains that a full lies direction, which was necessary in the circumstances of this case when both he and the prosecution suggested that the applicant had lied, was not given.  It is noted that after the applicant’s testimony, the issue of whether a lies direction was necessary was fully canvassed between the parties and the judge.^[91].  In his closing submission, Mr Leung accepted that the three versions put forward by the applicant could not stand together and they “can be lies altogether”^[92] and even if his evidence were to be rejected, the jury still had to be satisfied of the circumstantial evidence before they could convict the applicant.

69.  What the judge said in the summing-up was this:

“You have also heard that the defendant -- it has been suggested to you, both by Mr Richmond and by Mr Leung, that the defendant has lied. It is suggested the defendant lied in court in front of you on oath, he lied in his video-recorded interview and he lied in his 999 call because there are three different versions which, as Mr Leung said, cannot match up with each other. Now, how do you deal with it? Well, consider this: were the lies on each occasion out of panic or confusion or to bolster a true defence or to conceal some disgraceful conduct or to protect somebody else? People lie for different reasons

If you think the defendant had lied, that does not make him guilty. Merely that he has lied, and therefore, you do not accept that part of his evidence which you think he has lied upon and just go on to consider the other parts which you think he has not lied on. So that is how you deal with it. So, as I said, he is -- you are to treat him as any other witnesses who has come before you to give evidence. You may accept all his evidence, you may reject all his evidence. You may accept part of his evidence or reject part of his evidence. That is a matter for you.”^[93]

70.  As we indicated at the hearing, what is contained in the above passage is a two-fold direction:  that the jury should not equate lies with guilt; and that they should simply ignore those parts in which they found him lying and go on to consider the rest of his evidence.  The judge was mindful not to use what could have been used against the applicant.  This direction could not be faulted and was indeed most favourable to the applicant.  It eradicates any possibility of an impermissible line of reasoning by the jury.  The jury was told in clear terms that even if the applicant had lied, the prosecution still had to prove its case:

“Mr Leung has, in his submissions final address to you, submitted that the defendant is lying because he gave all these various different accounts. That is a matter, members of the jury, for you to decide at the end of the day whether he may have been lying in his 999 call or whether he had been lying in his videorecorded interview or whether he was lying in court to you. That is a question for you to decide. Mr Leung submitted that although the defendant is lying, it is still upon the prosecution to prove its case and that is right, because, at the end of the day, as Mr Richmond said, the prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, which means so that you are sure of the guilt of the defendant.” ^[94]

F5. Unbalanced Summing-up

71.  At the hearing, Mr Leung made it plain that this ground depends on the validity of the other grounds. He submits that the culmination of the overall effect of all the grounds complained of would cause a reasonably informed bystander to form the view that the applicant had been deprived of a fair trial.

72.  We do not propose to deal with each of the complaints, suffice it to say that we agree with the observation of the Respondent that they were all taken out of context.

73.  We do not find that the tenor of the summing-up when read as a whole gives any flavour of a second prosecution speech to the jury.  On the contrary, we find it to be an exemplary summing-up, which was both fair and neutral. 

[1]   Appeal Bundle page 213 N.   

[2]   Admitted Facts, Appeal Bundle page 9, at §2.1.

[3]   Appeal Bundle page 192.

[4]   Admitted Facts, Appeal Bundle page 9, at §3.1.

[5]   2^nd Admitted Facts, Appeal Bundle pages 23 – 24, at §10 – 12.

[6]   2^nd Admitted Facts, Appeal Bundle page 25, at §19.

[7]   P4, P7, P10 and P13.

[8]   Admitted Facts, Appeal Bundle page 10-13, at §4.3, 4.5, 4.7, 4.10. 

[9]   Admitted Facts, Appeal Bundle page 8, at §1.1. 

[10]   Admitted Facts, Appeal Bundle page 8, at §1.4. 

[11]   Admitted Facts, Appeal Bundle page 8, at §1.5. 

[12]   Admitted Facts, Appeal Bundle page 9, at §1.6. 

[13]   i.e. Sample S4 (Lab. Reference: GPB33267).  See 2^nd Admitted Facts, Appeal Bundle pages 22 – 23, at §7 and 9; Appeal Bundle page 200, at §7.3.7.

[14]   Admitted Facts, Appeal Bundle page 19, at §§9.1 and 10.1

[15]   Appeal Bundle pages 186 – 190. 

[16]   Appeal Bundle pages 100 O – 103 E.

[17]   Appeal Bundle page 62 E – K.

[18]   Appeal Bundle pages 115 A – G, T – U; 116 A – D.  

[19]   [1991] 2 HKLR 468, per Power JA at 473 E – F.  

[20]   [2003] 2 HKLRD 849

[21]   Appeal Bundle pages 105 Q – 107 E.

[22]   Appeal Bundle page 107 K – M.

[23]   Appeal Bundle page 107 P – T.  

[24]   Appeal Bundle page 108 H – J.  

[25]   Appeal Bundle page 109 K – M.

[26]   Appeal Bundle page 52 J – N.

[27]   Appeal Bundle page 63 O – P.

[28]   Appeal Bundle page 64 B – C.

[29]   Appeal Bundle page 64 D – E.

[30]   Appeal Bundle page 64 F – I.

[31]   Appeal Bundle page 64 J – K.

[32]   [2020] 1 HKLRD 1082

[33]   Appeal Bundle page 36 P – R. 

[34]   Appeal Bundle pages 56 R – 57 A.

[35]   Appeal Bundle page 38 P – U.

[36]   Appeal Bundle pages 65 Q – 66 B.

[37]   Appeal Bundle page 66 C – G.

[38]   Appeal Bundle pages 115 E – F, 116 L – Q.

[39]   Appeal Bundle page 139 O.

[40]   [2019] HKCA 248 at §35 – 39.  

[41]   Appeal Bundle pages 151 P – 156 A.

[42]   Appeal Bundle pages 126 C – 127 M. 

[43]   Appeal Bundle pages 105 Q – 108 Q, 108S-109B

[44]   Appeal Bundle page109N

[45]   Appeal Bundle pages 51 D – 53 K.

[46]   Appeal Bundle pages 43 T – 44 D.

[47]   [2020] 1 HKLRD 1082

[48]   AB 218 P – 219 E. 

[49]   (2006) 9 HKCFAR 85, at §23.

[50]   Appeal Bundle pages 48 B – 49 A. 

[51]   Appeal Bundle 56R – 57A

[52]   Appeal Bundle 36O – R

[53]   Appeal Bundle 38P – Q

[54]   Appeal Bundle 38R – S

[55]   Appeal Bundle 65Q – T

[56]   Appeal Bundle 66A – B

[57]   Appeal Bundle 66C – F

[58]   Appeal Bundle page 114 E – T. 

[59]   The 4^th, 5^th and 6^th Admitted Facts, Appeal Bundle pages 33 to 35.  

[60]   Appeal Bundle 116B– C

[61]   Appeal Bundle page 115 I – L, Appeal Bundle page 118 J – S

[62]   Appeal Bundle page 126 S – U.

[63]   Appeal Bundle page 127 K.

[64]   [1991] 2 HKLR 468 at 473

[65]   (2008) 11 HKCFAR 664

[66]   Appeal Bundle page 127 F

[67]   Appeal Bundle page 127 K

[68]   Appeal Bundle page 62 B – D.

[69]   Appeal Bundle pages 36 T – 37 E. 

[70]   Appeal Bundle pages 41 S – 42 C, 51 D – F.

[71]   Appeal Bundle page 189, Remark 1

[72]   Appeal Bundle page 189, Remark 5

[73]   Appeal Bundle page 106E

[74]   Appeal Bundle pages 106T  107C

[75]   Appeal Bundle page 107B – C

[76]   Appeal Bundle page 107 P – Q

[77]   Appeal Bundle page 108 G – H

[78]   Appeal Bundle pages 108 H – 109 A. 

[79]   Appeal Bundle page 108M – N

[80]   Appeal Bundle page 108 P – Q

[81]   Appeal Bundle pages 108S – 109A

[82]   Appeal Bundle page 109 L – O.

[83]   Appeal Bundle page 165 D – J.

[84]   Appeal Bundle page 165 J – L.

[85]   Appeal Bundle page 165 M– O.

[86]   Appeal Bundle page 165 O – U.

[87]   Appeal Bundle pages 168 B; 172 K; 173 A. 

[88]   HKSAR v Chan Hing-kai, 1114 at §93. 

[89]   Ibid at §94. 

[90]   Appeal Bundle pages 63O – 64K

[91]   Appeal Bundle pages 184 K – 185 E. 

[92]   Appeal Bundle 222Q

[93]   Appeal Bundle page 48 A – K.

[94]   Appeal Bundle page 37 F – M.