HKSAR v. LO LAI CHAU

CACC 191/2022

[2024] HKCA 170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 191 OF 2022

(ON APPEAL FROM HCCC NO 140 OF 2021)

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J U D G M E N T

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Introduction

1.  The applicant was charged with the murder of Zhou Shiqing (the deceased or Ah Lung), on 18 October 2019, in Hong Kong, contrary to common law and punishable under s.2 of the Offences against the Person Ordinance (Cap 212).  On 14 October 2022, the applicant pleaded not guilty to murder but guilty to manslaughter upon his formal arraignment; however, his guilty plea was not accepted by the prosecution.  Accordingly, he stood trial before Barnes J (the Judge)  and a jury.[1]  On 27 October 2022, he was found guilty of murder by unanimous verdict of the nine member jury and sentenced to life imprisonment.

2.  The applicant now seeks leave to appeal against the conviction, which the respondent opposes.

The prosecution case

3.  The killing of the deceased took place on 18 October 2019 at Shop B6 on the mezzanine floor of Kin On Building, 77-81 Yuen Long On Lok Road, Yuen Long, New Territories, that had been established and operated by Ms Liu Chunjuan (known as Ah Kuen)  as a place for people to play mahjong (referred to as the mahjong place at trial).  There were two mahjong tables in the premises.  The applicant and Ah Kuen came to know each other in 2017 and eventually were lovers. The deceased knew both of them.[2]

4.  On the day in question, the applicant arrived at the mahjong place at about 10:30 am and was there for the rest of the day. Ah Kuen had not attended the mahjong place.[3]  The deceased arrived at the mahjong place in the afternoon.   Sometime after 3:00 pm he started playing mahjong with Mr Tam Wing Yin (PW1), Mr Choi Chi Man (PW3), and another male nicknamed Chu Yuk Lo (who was not a witness).  There were four other persons, playing mahjong at the other table, Choi Chi Chun (PW2), Lee Ki Choi (PW4), Yang Rijuan (PW5)  and Lu Chih Ming (PW7).[4]  After the deceased arrived, he invited the applicant to play mahjong as there was an empty mahjong table.  The applicant refused but there was no argument between them.  The deceased then sat down and started to play mahjong with other patrons.

5.  It was the prosecution’s case that soon after the deceased commenced playing mahjong, the applicant suddenly chopped the deceased near his neck from behind.  The deceased was sitting down at the mahjong table at the time.  There was no quarrel or argument between them before the chopping. The deceased stood up and ran to the air-conditioning area but the applicant chased after him and continued to chop him.  The deceased used his bare hands to protect himself and ward off the blows, sustaining defensive injuries, including the severance of two of his fingers.[5]

6.  PW1 was playing at the same table with the deceased. He saw the deceased suddenly jump up with the applicant holding a chopper behind the deceased.  There was blood on the deceased’s neck.  The deceased ran towards the kitchen and the applicant chased after him.[6]

7.  PW4 was playing at the other table which was closer to the air-conditioning area.  He suddenly saw the deceased had gone to his side.  The applicant, holding a chopper, came over and chopped the deceased on the head and the shoulder area.  He described the applicant’s action as a “raise of the arm down with the blow”.  The deceased used his arms to ward off the blow, telling the applicant, “Don't come any further”, which was unchallenged by the defence.[7]

8.  PW2 was playing at the same table with the deceased. The deceased suddenly shouted “Aiya” and stood up.  He saw the deceased was bleeding from the area at the neck and the shoulder.  The applicant was holding a chopper standing behind the deceased on the side.  He said the applicant was “waving” the chopper, which he demonstrated by “pointing directly in front of him”.[8]

9.  PW3 was playing at the other table.  He had his back to the deceased.  When he first noticed the deceased, he was already in the area under the air­conditioning.  He saw the deceased covering his head.  He originally said he heard the deceased saying “Don't come any further”, but accepted on this matter he had made a mistake after he was shown his witness statement.  He said that the applicant was facing the deceased at the time and striking down on him.[9]

10.  PW5 was coming out of the washroom.  She saw the people playing mahjong running away and the applicant chopping the deceased. The deceased was sitting under the air-conditioning area protecting his head with his hands, and the applicant was chopping at the deceased's left side under the elbow.  It is important to note that PW5’s evidence was that she only saw the applicant administer one or two chopping actions on the deceased before running away.[10] However, it was put to her in cross-examination whether she agreed the two men were “actually fighting together”.  She agreed.[11]  She had previously been asked if she saw the deceased also fighting back against the applicant.  She said, “No, just protecting his head with both of his hands.”[12]  In re-examination, she explained that when she agreed there was some sort of resistance, she felt that the deceased was retaliating by “trying to ward off with his hand or arm and with this gesture like this” (pushing away).  She said there was no other action.[13]

11.  PW7 had previously played at the other table and was standing in between the two tables watching people play mahjong.  He suddenly heard the deceased yell out.  He turned to look at the deceased, who had jumped up or leaped up.  He saw the applicant behind the deceased chopping his head.  He saw two to three chops.  He did not hear any argument.  He left immediately but saw the deceased either walk or stumble two to three steps towards the air-conditioning area.[14]

12.  As a result of the chopping, the deceased sustained, amongst other injuries, six wounds on the head, with three through and the other three partially through the bone.[15]  The forensic pathologist, Dr Mok Ka Kin (PW8), said in order to cut through bone with a chopper the force had to be significant.[16]  There were also injuries on the arm, the back of the hand and chopping of the fingers, which Dr Mok said to be consistent with defensive injuries, meaning that the deceased was trying to protect himself from being attacked.[17]

13.  After chopping the deceased, the applicant made two calls to the police.  He called the 999 Report Centre of the Police.  He said during his call:[18]

“I stated clearly that I would chop you to death.”

The operator thought the applicant was talking to her and hung up. 

14.  The applicant called 999 again and had the following exchange with the operator:[19]

“1. A: 999?

2. C: Hello?

3. A: Aright, 999.

4.  C:  Er-, I chopped someone.

5.  A:  Who did you chop--you chop?

6.  C:  Hello, I-I-I chopped a -- chopped a person.

7.  A:  No. What is your relationship with each other?  What is your relationship with each other?

8.  C:  I am ‘tau’ (transliteration)  -- I am -- my surname is LO (transliteration).

9.  A:  Nope.   Who did you chop?  Who did you -- you chop?

10.  C:  That -- that person is called ‘Ah Lung’ (transliteration).

11.  A:  No.  Is (he/she)  your friend or who is (he/she)?

12.  C:  (I)  know (him/her).

13.  A:  Listen, well, now, you tell (us)  where the injured person first.

14.  B:  Tell (us)  the address first.

15.  C:  Er-, mezzanine floor, Kin On Street.

16.  B:  Kin On Street?

17.  A:  What number?  Kin On Street? 

18.  C:  Kin On Building, Tai --Tai Cheung Street.

19.  B:  (It)  is called Kin On Building, can (you)  hear (me)?

20.  C:  Yes. You come (here)  immediately.

21.  B:  Which floor?   What location?  Is (it)  available?

22.  C:  Huh?

23.  B:  Which floor?   What location?

24.  C:  (It)  is the mezzanine floor.

25.  B:  Kin On Building, Tai Cheung Street...

26.  A:  Is that--is that place at 1 (Yuen Long)  Tung Tai Street?

27.  C:  Right, right, right.

28.  A:  Mezzanine floor, Kin On Building, 1 (Yuen Long)  Tung Tai Street.

29.  B:  Mezzanine floor.

30.  A:  That is, one level above the ground floor, right?

31.  C:  Yes.

32.  A:  Is there a room number?

33.  C:  Nope.  You come up (here)  immediately.

34.  A:  How many people are injured now?

35.  C:  One person.

36.  A:  Is he/she, er-, breathing now?  (Can you feel his/her)  pulse?

37.  C:  Huh?

38.  A:  Is (he/she)  breathing, the pulse-

39.  C:  Moreover, ... [Indistinct]

40.  A:  Which part of his/her (body)  -- which part of his (body)  is injured?  Listen,  (we are)  coming.  Which part is injured?  (Which part)  is bleeding?·

41.  C:  The head.

42.  A:  The head is bleeding, right?

43.  C:  Right.   I chopped him several times.

44.  A:  Okay.

45.  B:  What is the telephone number, telephone number?

46.  C:  Mine, mine?

47.  B:  Yeh.

48.  C:  Er-, 51708864.

49.  A:  It’s your -- right, er-, er-, let me ask (you)  a few more questions first.

50.  B:  Alright.

51.  A:  What is your name?

52.  C:  LO Lai-chau.

53.  A:  LO Lai-chau.  Do you personally have any mental illness?

54.  C:  Huh?

55.  A:  Did you drink alcohol?

56.  C:  He -- I mean, he hit me several times.

57.  A:  I see.   He hit you, you chopped him, right?

58.  C:  Yes.

59.  A:  Listen, you, you put down the knife first.  If the police see you holding a knife, you will be in great danger.  Do you know?  You put down the knife.

60.  C:  Okay, alright.

61.  A:  Er-, you do not hang up, we… [Indistinct]

62.  C:  I sit here to wait for you.”  (Emphasis added)

15.  The applicant then went downstairs and walked around.  The audio recording of the CCTV in a shop captured the following comments by the applicant:[20]

“1. A: Okay – okay. Okay, I will ‘Ta’ (transliteration)  [Indistinct]. Literally said (I)  was going to chop him to death.

2. A: I literally said (I)  was going to chop him to death(,)  said [Indistinct]…

3. A: I want to just go away (sic). (I)’m prepared to go to jail. I……? [Indistinct] I’m definitely going to jail. [Indistinct] I chopped him. I called the police. I said (I)  was going up to chop him to death. [Indistinct] Motherfucker. Yea. [Male voice: The phone…] Yes, I called the police. I literally said (I)  was going to chop him to death. I literally said (I)  was going to chop him to death. Motherfucker. That 50 dollars, has been dragged on for years. [Indistinct] I literally said (I)  was going to chop him to death. (I)  chopped him to death once (I)  went up (there). Thought I was kidding, motherfucker. (I)  literally said once [Indistinct]

4. A: [Indistinct] I’m not going – I’m not going yet. I-I’m not going. Right.

5. A: None of your business. Motherfucker. Motherfuck… got it…motherfucker. (Even)  one [Indistinct] motherfuck …” (Emphasis added)

16.  It was an admitted fact that at 4:08 pm on 18 October 2019, PC 6330 cautioned the applicant who answered him voluntarily as follows:[21]

“PC 6330: 頭先發生咩事？

(What happened a moment ago?)

The defendant: 我頭先用菜刀斬左阿龍幾刀。

(I slashed ‘Ah Lung’ a few times with a chopper a moment ago.)

PC 6330: 你因乜事斬阿龍？

(Why did you slash ‘Ah Lung’?)

The defendant 因為佢之前想追我女朋友，曾經嘈過交，我今日見返佢，愈諗愈嬲，所以係洗手盤到拎菜刀斬佢，之後我平靜返就報警。

  (Because he wanted to pursue my girlfriend before.  We had an argument before.  I got even angrier when I saw him again today.  So I picked up the chopper in the sink and slashed him.  I calmed down afterwards and called the police.)”

17.  It was also an admitted fact that at 4:10 pm, PC 6330 cautioned the applicant for wounding, who voluntarily said in reply:[22]

“I slashed him because I was too angry.”

18.  The applicant was arrested and cautioned.  In a subsequent video recorded interview, the applicant said, amongst other things, that he chopped the deceased once on his neck and then a few times on his head while the deceased was sitting at the mahjong table with his back towards him.  The deceased rushed over to the air conditioner and the applicant chopped him two more times.  The deceased had covered his head with his hands.  The applicant saw the deceased sitting there bleeding and stopped.[23]

19.  The deceased was dead upon arrival at the hospital.[24]  The autopsy confirmed the cause of his death to be “multiple chop and cut wounds”.[25]

The defence case

20.  The applicant did not dispute he had killed the deceased.  He had pleaded guilty to manslaughter but it was not accepted by the prosecution.[26]  The defence case was that the applicant lost control due to assaults that he had suffered from the deceased on three prior occasions and the way the deceased spoke to him just before the chopping:[27]

Incident 1

The first incident occurred on a day that the applicant said was in 2018 or 2019. He was in the street when the deceased came from behind and grabbed and squeezed his neck so that he could hardly breathe.  The deceased told him, “You have been gossiping about me and Ah Kuen”. He did not report the matter to the police.[28]

Incident 2

The second incident occurred in the evening at the mahjong place that the applicant also said was in 2018 or 2019.  He was with Ah Kuen, when the deceased pointed a knife at the applicant’s throat, demanding $6,000.  The applicant said,  “have no money”, and the deceased said, “If you don’t give me money now I will stab you to death”.  In the end, the applicant borrowed $2,300 from Ah Kuen to pay the deceased $3,000 at the scene.  He paid the rest of the money later the same day.  He did not report the matter to the police.[29]

Incident 3  

The third incident occurred on 17 July 2019.  The applicant was at the mahjong place, when the deceased suddenly arrived, accused him of forcing Ah Kuen to go to Macau to gamble, and used an iron rod to poke his chest and hit his head.  This time, the applicant did make a report, but his telephone was snatched away by the deceased so he had to use a public telephone.  He told the attending police officer that the deceased hit him with a metal rod, but did not pursue the matter after being persuaded by the officer to drop it.  However, his evidence about reporting the matter was contradicted by the police officer, who testified that the applicant made no mention of being hit with a metal rod and only complained that his telephone had been snatched from him.[30]

21.  Before the chopping on 18 October 2019, the applicant was at the mahjong place and the deceased invited him to play mahjong.  The applicant said, “No, I’m not playing. I have no money.”  The deceased said, “I will give you $2,000.  I will lend you $2,000 to play”.  The applicant refused.  He felt the deceased was provoking him because the deceased had not repaid the $80,000 he owed Ah Kuen, “and he offered me $2,000 to play mahjong when I already said that I don’t want to play and I have no money”, and because the deceased said to him, “You are the boss.”[31] However, the applicant admitted that on the day the deceased was friendly.[32] 

22.  By that stage, the applicant reached the limit of his “bottom line”.  His temper flared up so he decided to teach the deceased a lesson.  He grabbed the chopper in the kitchen and chopped the deceased, who was sitting there playing mahjong, from behind on the shoulder near the neck.[33]  The deceased stood up, turned around and punched the applicant on the lower jaw, causing his teeth to loosen, one of which fell out the next day.[34] The deceased tried to grab the chopper from the applicant.  They were waving the chopper and that was how the deceased got chopped in the arms.  They were not defensive injuries and the applicant did not mean to chop the deceased on the arms.  He said, “And when he was trying to snatch the chopper from me, there was a struggle between the two of us and the injury on his arms were all caused by the time of the struggle when the knife was waving around and those cuts were caused.”[35]  The applicant agreed that he had not mentioned a struggle with the chopper in his video recorded interview.[36]  He also agreed he had no hand or arm injuries or cut injuries at all.[37] 

23.  The deceased did not get hold of the chopper and the applicant managed to get the chopper free from the deceased, but that had caused the applicant’s temper to flare up further so that was when he chopped the deceased’s head.  His mind was blank at that time.  He was confused.  He did not know what he was doing, “I just chopped and chopped and chopped”.[38]  The deceased was standing all the time.  The deceased then went over to the air-conditioning area.  There, the applicant saw the deceased bleeding and he stopped.  He then realised, “Oh dear, he is bleeding.  I don't want him to die”.  He washed his face to clear his mind and called the police.  He did not remember saying the words as captured by the CCTV. [39]

24.  As pointed out by the Judge, the defence was twofold.  First, at the time of chopping his mind was blank.  He was confused and did not know what he was doing so he did not have any murderous intent. Alternatively, he suffered a sudden and temporary loss of self-control because of the cumulative effect of the three prior incidents and the “last straw” of the events that happened before the chopping on 18 October 2019, i.e. he had been provoked by the deceased.[40]

The grounds of appeal

25.  Mr James Sherry, for the applicant, who also represented him at trial, advances four grounds of appeal.  Ground 1 avers that the Judge did not give a proper direction on the meaning of “unlawful”.  Ground 2 complains that the Judge erred in failing to give a direction on self defence.  Ground 3 complains that the Judge failed to give a fair and balanced summing-up to the jury.  Ground 4 avers that the Judge failed to direct the jury on post-offence conduct.

26.  The central issue that runs through most of the grounds of appeal is whether self defence was raised by the applicant in his evidence.  Critical in deciding the leave application is the second ground because it complains that the Judge failed to give a self defence direction.  For the reasons I am about to give, I did not find the second ground to be reasonably arguable because there was no proper evidential basis in respect of which a self defence direction was required or could sensibly have been given.  There was no suggestion that the applicant was acting in self defence, nor was it advanced as a defence in answer to the murder charge. 

27.  It would appear that the issue of self defence was raised by Mr Sherry as an afterthought following the close of the defence case and the applicant’s evidence about how the defensive injuries were sustained by the deceased.  At one stage in his evidence, the applicant said that after he chopped the deceased in the area of his shoulder and neck, the deceased stood up, turned around and punched him.  They then struggled over the chopper.  He said that the injuries to the deceased’s upper limbs were not defensive injuries but as a result of the chopper wavering during a struggle.  His evidence was directed at explaining why the injuries to the deceased’s upper limbs were not defensive injuries, not that he was defending himself or concerned about his personal safety.  He never said that the deceased was aggressive during this incident.[41] None of the eyewitnesses to the initial attack saw the deceased punch or struggle with the applicant, nor were they cross-examined as to whether this had happened.  There was evidence from PW5 that later underneath the air conditioner the deceased was “retaliating” but she explained that this involved the deceased trying to ward off with his hand or arm the blows from the applicant.  The unchallenged evidence of Dr Mok, was that the injuries sustained by the deceased to his upper limbs were defensive injuries.  These injuries consisted of extensive cuts and several deep wounds that had cut into the bone and the amputation of two fingers on his left hand.  The applicant had not sustained any injuries. 

28.  As a consequence of the lack of merit in the second ground, the other grounds fall away.  The first ground complains that the Judge had not properly directed the jury on the element of “unlawful” killing when addressing the offence of murder.  It is argued that the Judge misdirected the jury that the applicant had no legal justification for killing the deceased because self defence was a live issue.  There was no basis to direct the jury that the applicant was acting in self defence and that the killing may have been lawful.

29.  The third ground complains that the Judge gave an unfair and unbalanced summing-up essentially because she did not address self defence and any related evidence.  This ground was devoid of merit once it was shown that the complete defence of self defence was not available on the evidence.

30.  The fourth ground is less reliant on the issue of self defence, which morphed from a general complaint about post-offence conduct to an argument that the applicant’s admissions after the killing warranted the Judge directing the jury on inferential reasoning.  The applicant’s post-offence statements were admissions against interest that did not require a direction on inferential reasoning.

31.  I found none of the grounds of appeal to be reasonably arguable.  I will now make additional comments on each ground.

Ground 1: No proper direction on unlawful

32.  Mr Sherry complains that the Judge misdirected the jury on “unlawful killing” when explaining the elements of the offence of murder.  He refers to the Judge’s following remarks when she discussed the ingredient of “unlawful killing”:

(i)  “Murder is committed when a person unlawfully kills another person, …”[42]

(ii)  “So the second ingredient that the killing was unlawful, unlawful means the killing had no legal justification.  Now, to give you an example, if a patient, after giving consent to a Doctor to have an operation and unfortunately died on the operation table, the doctor did not murder him.  The legal justification is it is just unfortunate that he died in the operation. So it had to be unlawful.  There is nothing in this case that the Defendant said, ‘I am entitled.  I have legal justification to kill the deceased, Ah Lung’, no.  So again, on the basis of the evidence presented before you, you should have no difficulty in finding the second ingredient had also been proved.  So, the Defendant unlawfully killed Ah Lung.”[43]

(iii)  “The second ingredient was the killing unlawful.  I have again already reminded you there was no suggestion that the Defendant had any legal justification.  So this one, again, you should have no difficulty in finding it is proved.”[44]

33.  Mr Sherry argues that when the Judge said that the applicant had no legal justification to kill the deceased this was a material misdirection and an error of law.  He submits that the Judge overlooked the applicant’s evidence that he “struggled or fought with the deceased because he believed he had to defend himself.”[45]  He further submits that the Judge incorrectly suggested that it was for the applicant “to say something and prove that he was justified in the killing to show that it was ‘not’ unlawful.”[46] He says that this left the jury with the impression that there was an onus on the applicant to explain to them why the killing occurred and to prove that it was lawful.[47] 

34.  The Judge was not suggesting that the applicant had to say something to prove the killing was lawful.  When she said there was “nothing in this case” that the applicant said that he was entitled or had legal justification to kill the deceased, she was merely commenting on the state of the applicant’s evidence.  In any event, the Judge made it abundantly clear to the jury that the burden of proving each ingredient of the offence of murder was always on the prosecution.  She correctly gave the standard directions when addressing the elements of murder, unlawful and dangerous act manslaughter and manslaughter by reason of provocation.  She stressed to the jury throughout her summing-up that the burden was on the prosecution to prove each ingredient of the offence beyond reasonable doubt and that the applicant had no burden to prove anything, including whether the killing was unlawful.[48]  When addressing the ingredient that the killing had to be unlawful, she properly explained what was meant by an unlawful killing and noted to the jury that given the evidence they would have no difficulties in finding the ingredient proven.

35.  As I have already explained, this ground fails because there was no basis to suggest that the killing might be lawful because the applicant acted in self defence.  This issue is addressed in more detail in the next ground of appeal.

Ground 2: No direction on self defence

36.  Mr Sherry submits that the applicant testified that he “struggled or fought” with the deceased during the attack, and in the circumstances, there was a material irregularity in the Judge’s summing-up in failing to direct the jury on self defence.[49]

37.  The evidence does not support the proposition that the applicant was defending himself against an attack from the deceased. 

38.  It was an admitted fact that Dr Mok’s autopsy report accurately recorded the autopsy findings of the deceased, which was produced as an exhibit (Exhibit P87).[50] Dr Mok was not challenged at all in cross-examination about his findings that the injuries to the deceased’s upper limbs were defensive injuries.[51]  In his report, Dr Mok remarked:

“3. In this case, the cut wounds on both upper limbs had transected the left ulnar artery and right brachial artery. Together with the deep chop wounds on the head and upper limbs, the amount of blood loss could be potentially fatal.

4.  Also, the sharp injuries on the upper limbs were mostly found on the back of both arms, back of right elbow, back of both forearms and back of right hand left fingers.  The pattern of distribution was in keeping with being defensive injuries and indicated the deceased was probably conscious at the time of attack and had tried to defense against the attack.”

39.  It is the case that the witnesses who saw the beginning of the applicant’s attack on the deceased (PW1, PW2 and PW7)  did not see the deceased punch the applicant or struggle with him.  It is also the case that the applicant did not describe being punched by or struggling with the deceased in his video recorded interview, which was admitted into evidence on the basis that it was a complete and accurate record of the interview and that the applicant answered all the questions voluntarily.[52]  The Judge summarised the difference in the applicant’s evidence to the jury as follows:[53]

“… he said that he hit the deceased once in the neck area then he chopped a few times on the head while Ah Lung was still sitting at the mah-jong table. Then Ah Lung rushed over to where the air-con was and then he chopped Ah Lung two more times and then he saw blood and then he stopped.

So when the defendant saw Ah Lung sitting there bleeding, he stopped. He did not chop him anymore. Now, that is basically counter 278 to 300, so you may want to make a note, but please go through the transcript again to see exactly what he said he did one day after the chopping, as compared to what he said to you in court.

Of course, in court the description is not like that at all. He only chopped the deceased once on the neck or on the shoulder near the neck. The deceased jumped up or stood up, turned round, punched him in the lower jaw causing him to have teeth loosened, one tooth came out the next day, and they had a struggle over the chopper, both waving, and it was under those circumstances that the deceased got chopped on the arms. When he got the chopper back from the deceased he was even more angry, so he chopped his head. The deceased was still standing. Then the deceased went over to the air‑conditioner and then he saw blood, he stopped.

  Over at the air-conditioner he did not chop the deceased at all.  That is what he told you in court, so you have to think and consider yourself which version is correct or neither version, up to you.  They cannot both be correct, so compare his evidence with other witnesses.  I have already told you no one had seen this.  No one had seen any struggle.  No one had seen any punching, so it is a matter for you.”

40.  Mr Sherry accepts that the evidence showed that the applicant was the “initial aggressor”, but he suggests that after the applicant’s initial attack on the deceased, the applicant acted in self defence because of the deceased’s aggressive conduct.[54] He submits that the applicant was provoked by the deceased and only wanted to chop him on the shoulder to teach him a lesson.[55]  The flaw in this submission is that not only was the applicant shown to be the “initial aggressor”, but moreover he was the aggressor throughout this incident, while the deceased displayed no signs of aggression.  As noted by the Judge, the applicant never said that the deceased was aggressive or abusive during this incident.[56]  None of the witnesses who were present in the mahjong place said the deceased was aggressive, nor was this proposition put to them by Mr Sherry on behalf of the applicant. 

41.  After the close of the defence case, the Judge discussed with counsel the legal directions to be given to the jury.  Mr Sherry confirmed that the defence was suggesting both unlawful act manslaughter and provocation.  When the Judge briefly stated the evidence, Mr Sherry added that despite the applicant inflicting the first blow, there was a punch to the applicant’s mouth, loosening his teeth, and a struggle.  When the Judge questioned whether he was really suggesting self defence, Mr Sherry said “it has sort of come up now.”[57] The Judge pointed out that the applicant in his evidence did not say that he had to protect himself but was trying to explain the injuries of the deceased.  She went on to note that the applicant had stated that he didn’t know what he was doing and just chopped at the deceased.  Mr Sherry said he understood and agreed with the Judge’s view of the applicant’s evidence.  He explained that he thought the matter should be raised and ventilated.[58]  When it was put to him by the Judge whether he was suggesting that the applicant’s evidence amounted to self defence, he said he was just raising the issue because of the evidence from the applicant about being punched in the mouth and the melee, “to raise it and ventilate it to see if there really needs to be a direction or not, and it seems that you are not with me.  It’s not necessary …”.[59]  The Judge told Mr Sherry that he had to convince her if he thought a direction on self defence should be given.  There was discussion about the evidence, after which the Judge rejected giving a self defence direction, which Mr Sherry acknowledged he understood.  The Judge reminded him not to bring up the issue of self defence before the jury, which he accepted, adding “Well, that’s why I wanted to ventilate it now.  So this is the time.”[60]  The case was adjourned for closing addresses the next day at 2:00 pm on 25 October 2020.  Mr Sherry explains that he did not pursue the matter because the Judge was adamant that self defence did not arise and he was bound by her decision.

42.  In his closing address, Mr Sherry mentioned for the first time that the applicant had pleaded guilty to manslaughter.  In his concluding remarks, he told the jury that the applicant was not guilty of murder because the requirement of murderous intent was not present, adding, “You should find him guilty of manslaughter only for which he has already pleaded guilty.”[61] In the absence of the jury, the Judge discussed with Mr Sherry what she should say to the jury in her summing-up about his comment that the applicant had pleaded guilty to manslaughter and what was the evidential foundation for his comment that the deceased was aggressive on the day of the incident.[62]  The Judge noted that there was no evidence that the deceased was aggressive on that day, nor had the applicant testified that the deceased was aggressive during the chopping.  After he reviewed the evidence overnight, Mr Sherry confirmed with the Judge that there was no such evidence.  She told him that she would inform the jury to that effect in her summing-up and he raised no objection.[63] 

43.  The Judge summarised the applicant’s evidence regarding the punch and the struggle in the context as to whether the deceased’s injuries were due to a fight over the chopper or defensive injuries.  The Judge said:[64]

“So it is for you to decide, after considering all the evidence including the injuries sustained by Ah Lung, suffered by Ah Lung, as shown in the autopsy report and the photographs. I will not go through the report. You have both English and Chinese to help you so you can see all those injuries, and also the evidence, the opinion of Dr Mok, and you see how many blows were struck. Are we talking about one blow or more than one? You decide that.

  Did Ah Lung punch back or not, because only the defendant said it, I have already mentioned.  None of the prosecution witnesses who saw the hitting, some of them, up to the time when Ah Lung had already got into the air-con area there was nothing about Ah Lung punching or fighting over the chopper at all, so it is a matter for you.  Was there a struggle between Ah Lung and the defendant over the chopper as described by the defendant, a matter for you?  How did Ah Lung sustain those wounds on his arms, as described by the defendant fighting over the chopper so got wounded or defensive wounds as described by some of the witnesses which is also the opinion of Dr Mok?  It is a matter for you.”

44.  Mr Sherry’s description of the applicant’s evidence is not correct.  The applicant said the deceased punched him once and tried to snatch his chopper which resulted in the chopper being waved around, causing the wounds to the deceased.  The applicant then chopped the deceased two to three times.  The evidence does not support Mr Sherry’s submission that the applicant “defended himself against a further attack from the deceased” or that there had been a “prolonged fight” between them.[65] 

45.  The respondent submits that self defence never formed part of the applicant’s case for if it did he would not have pleaded guilty to manslaughter at the outset of the trial.  Moreover, no relevant questions on this subject had been asked by defence counsel of the prosecution witnesses.[66] The respondent refers to the following passage in DPP v Walker to suggest that defence counsel must have considered self defence to be of no practical possibility, otherwise, it would have been part of the defence case: [67]

“There might be a case in which provocation is relied upon but not self-defence although there is evidence from which self-defence could possibly be inferred. This however is hardly more than a theoretical possibility because if there were even only the slimmest chance of self-defence succeeding, it is difficult to imagine any reason why counsel for the accused should fail to raise it and elect to rely solely on provocation. In the present case, for instance, had self-defence been considered to be a practical possibility, there could have been no reason for not raising it. It could not have conflicted with the defences of automatism or diminished responsibility any more than the defence of provocation which was in fact raised. The experienced counsel for the respondent discarded self-defence no doubt because they realised that such a defence had no chance of succeeding.

…

  If, as in the present case, (a)  the accused has not relied on self-defence and (b)  the evidence is consistent only with the force used being far greater than could conceivably have been necessary, no appeal can succeed on the ground that the judge has not left self-defence to the jury. The judge would be quite wrong to do so because any verdict of manslaughter on the ground of self-defence would be perverse; there would be nothing to support it.”

46.  The respondent notes that at the case management hearing Mr Sherry mentioned that self defence may be advanced but this was later abandoned by the applicant before the trial.[68]  This was evident by the applicant’s plea of guilty to manslaughter, which was not a complete denial of the murder charge that would have been the case if self defence was advanced in contesting the charge.  Furthermore, the applicant never said in evidence that he chopped the deceased to defend or protect himself.[69]  What he said was that the deceased “tried to snatch my chopper, and that caused a further flaring up of my anger and so I chopped him several times more.  That’s it.”[70]  Clearly, this evidence only went to the issue of murderous intent, and not to the issue of self defence. 

47.  As noted by the Judge, a direction on self defence would have been inappropriate in the circumstances and only served to confuse the jury.[71]  In HKSAR v Chau Yui Ming [72], Ma CJ quoted with approval the following comments of Mustill LJ in R v Fairbanks[73]:

“... the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.”

48.  Mr Sherry also complains that the Judge unnecessarily provided the jury with reasons why they should reject the applicant’s version given in court, which would have undermined the applicant’s credibility.[74]  The matters he specifically mentioned, including the position of the wounds, the severity of the wounds, the relative positions of the applicant and the deceased, the manner of the attack, the force of the blows, together with the number of the wounds and so on were clearly matters for the jury to consider as they are relevant to determine whether the applicant had the murderous intent.  There was nothing wrong in the Judge inviting the jury to consider these matters as they were obviously relevant.  Nor was it wrong for her to address the applicant’s evidence that his teeth were loosened and he lost a tooth because of a punch by the deceased, noting that he never mentioned it in his video recorded interview, as it would have had a bearing on the applicant’s credibility and whether the alleged struggle took place.  In any event, at the commencement of the summing-up, the Judge had directed the jury that they were not bound to accept her view on the evidence as they were alone the judge of the facts.  She constantly reminded the jury that on evidential issues it was a matter for them to decide what to accept or reject.[75]

49.  Mr Sherry claims that the Judge did not give equal treatment to the applicant’s evidence in her summing-up.  This is simply not correct.  The Judge gave a comprehensive and complete summing-up of the evidence, both for the prosecution and the defence, and the issues between them, to the jury.  She fully reflected on the defence case and the matters that went to support the applicant’s case.  A consideration of the summing-up as a whole does not support this complaint.[76]

50.  There is no substance in this ground of appeal.

Ground 3: Failure to give a fair and balanced summing-up

51.  This ground continues some of the complaints made under the previous ground that the Judge failed to give a fair and balanced summing-up, “by making numerous comments about the defence case and the applicant’s evidence while failing to give equal treatment to those points in his favour.”

52.  When it comes to the summing-up, the fundamental rule is that it must be fair and balanced so that the jury can properly weigh up the true issues: Tang Siu Man v HKSAR (No 2)[77]; Lin Ping Keung v HKSAR[78]. As stated by this Court in HKSAR v Umali[79], it is open to a judge to comment upon the evidence and, if the circumstances so warrant, in forceful terms, and whether a summing-up is unfair and unbalanced is ultimately, “a question of context, degree and ‘feel’ of the summing-up as a whole.”  This will invariably involve considering the proceedings as a whole, including the state of the evidence and the issues raised during the trial, particularly the case as reflected by counsel’s closing speeches that will almost certainly identify the issues or matters that may warrant comment or reference by the judge.  Context is a particularly important factor when considering criticism of a judge’s summing-up: HKSAR v Wu Chi Ki[80].

53.  Mr Sherry contends that absent any proper direction on “unlawful” and “self defence”, the jury, having been directed on matters relating to the alleged struggle between the applicant and the deceased, would have no reason to resolve the question of whether the struggle had in fact taken place, or would not know how to apply their findings when it comes to considering whether the killing was unlawful.  As already noted, there was no basis on which to direct the jury on self defence, and the evidence of a struggle came from the applicant which was part of the factual matrix before the jury that the Judge addressed in her summing-up to them. 

54.  As pointed out by the respondent, the applicant had pleaded guilty to manslaughter and discarded self defence before the trial, the defence case, as correctly understood by the Judge, was one of a lack of “murderous intent” and “provocation”.[81] The applicant’s evidence of a struggle went on to explain that the deceased’s injuries were not defensive injuries[82], and that as a result of the struggle his temper flared up to explain the additional chops to the deceased.  This went to the issue of “murderous intent”.[83]

55.  Mr Sherry also contends the Judge’s summary on the chopping was unbalanced because it made no mention of the struggle and was presented in a way that his attack was an uninterrupted or continuous act. This contention has ignored the extensive references the Judge has already made to the applicant’s evidence of the struggle, and her invitation to the jury to consider whether the struggle in fact took place.  In the quoted passage of the Judge’s summary, she was simply referring to the undisputed evidence in an objective manner.[84]

56.  As the defence case “relied heavily on the cumulative effect” of three incidents to explain the applicant’s provocation, Mr Sherry contends that the Judge made inappropriate remarks about the third incident when summarising the evidence of Lu Chih Ming (PW7); and misstated the evidence of Yang Rijuan (PW5)  when she said she felt the deceased was retaliating.

57.  The criticisms levelled against the Judge generally and specifically in respect of the two matters are completely unjustified.  The Judge gave a comprehensive and carefully structured summing-up, summarising the evidence, directing the law with examples, identifying the issues and appropriately making comments to guide and assist the jury.  The summing-up was a reflection of the state of evidence and the issues or matters that arose during the trial.  When addressing the evidence, the Judge on occasion made comments but always stressed that it was a matter for the jury to ultimately decide.  The Judge’s comments were appropriate and in an endeavour to assist the jury on what may be a relevant consideration for them.  For example, the applicant in various respects gave a different account of the three incidents in his video recorded interview with his evidence in court.  The Judge noted the relevant differences but reminded the jury that it was a matter for them to assess and evaluate.  She told the jury at the commencement of the summing-up that it was their responsibility to judge the evidence and decide the relevant facts of the case.[85] She also emphasised that if she expressed a view about the evidence they did not have to accept what she said because they were the judge of the facts.[86] 

58.  There was nothing objectionable about the comments referred to by the applicant and in any event, the jury had been repeatedly reminded that they did not have to adopt the Judge’s views of the evidence.

59.  The first matter that Mr Sherry raised to show that the Judge’s summing-up was not fair and balanced concerned the evidence relating to the third incident.  The Judge’s impugned remarks were made after she had summarised the police officer’s evidence who from his notebook entry testified that the applicant made no reference that the deceased had hit him with a rod.  The police officer recorded the matter as a snatching case.  It was after that the Judge said:

“Then it might have a bearing on how serious the defendant felt about this incident when he reported to the police only about the snatching of the phone and nothing about the metal rod, all right? I’m not saying that this is what you have to decide, I am just suggesting that you may think that it is unlikely for a policeman not to have made a record of the fact that the defendant had said to him Ah Lung had beaten him up with a rod, but it is a matter for you.”[87]

60.  Immediately after addressing the police officer’s evidence about the third incident, the Judge summarised the evidence of PW7 that he witnessed the deceased scolding and hitting the applicant with a crowbar.[88] The Judge’s previous remarks about the police officer’s evidence were limited to how the applicant considered the incident when he reported it to the police.  The Judge comprehensively addressed the evidence of the three incidents, and whilst she made comments about certain aspects of the evidence, she always reminded them that it was a matter for them to decide the issue in question.  However, the main point of the defence case, which she emphasised with the jury, was the “accumulative effect” of the three incidents that provoked the applicant when the deceased spoke to him on 18 October 2019.[89] 

61.  Mr Sherry complains that the Judge repeated her comments about the police officers’ evidence regarding the third incident, but never mentioned the applicant being attacked by the deceased with a rod.  He is critical of the Judge’s following remarks “that again would have a bearing as to whether those three incidents have the effect of provoking him together with what Ah Lung said on 18 October 2019.”  The context of these remarks is important.  At this stage of the summing-up the Judge was summarising the prosecution and defence cases.  She had reminded the jury that it was the defence case that the cumulative effect of all three incidents was on the applicant’s mind on 18 October 2019, and that by the third incident, he had reached “bottom line, so by that stage even more so.  He could not stand it anymore, reached his limit.  His temper flared up.  He decided to teach Ah Lung a lesson.  That is important, he decided to teach Ah Lung a lesson.  That is why he took the chopper to chop Ah Lung.”[90] She further reminded the jury about the uncertainty of the dates of the incidents and why no reports were made about the first two incidents.[91]  She then said, “the third one, of course, he did report and he reported it was no dispute that the report was snatching of the mobile phone.  So he did not report to say, “someone chopped me” or “someone hit me with metal rod”.[92]  The report was categorised as a snatching.  That is why the police officer went up there to investigate.  The Judge said:[93]

“So you will have to decide whether at the time the defendant told the police that he was already assaulted by Ah Lung with this iron rod. Now, if you accept the evidence of the police officer that the defendant never mentioned it, then it might have a bearing on how serious the assault was. What was the defendant’s attitude about Ah Lung coming with the iron bar or iron rod and poking him in the chest and hitting him on his head causing swelling? So that again would have a bearing as to whether those three incidents had the effect of provoking him together with what Ah Lung said on 18 October 2019.”

62.  Immediately following these remarks the Judge emphasised the defence case:[94]

“Now, I have already mentioned to you that the defence was saying that that was the last straw. What happened on 18 October when Ah Lung asked the defendant to play, offering him the $2000 to play, that was the last straw of this cumulative effect. The defendant said his mind was confused. He did not know what he was doing. He only became clearer after he saw Ah Lung bleeding and he washed his face. So the fact was he tried to remember. The defendant told you he tried to remember what happened during the VRI.

  I think I should make it clearer.  The defence was saying that even though the defendant was able, apparently, during the VRI to say step-by-step what happened, but that does not mean that he was not confused, that his mind was not blank at the time of the chopping.  I think the defence make this point that it is afterwards you try to remember what you have done so you are trying to recollect, but that does not mean that at the time you knew what you were doing because the defendant said he did not know what he was doing.  He was so blinded by anger.” 

63.  The Judge accurately and properly summarised the evidence relating to the third incident.

64.  The second matter complained that the Judge misstated PW5’s evidence in that she had never used the word “retaliated”, and incorrectly directed the jury away from finding that there had been a fight between the applicant and the deceased.  In oral submissions, Mr Sherry abandoned this complaint.  I have already addressed the evidence of PW5 who testified that when she said the deceased was “retaliating” she meant that he was using his hands to ward off and push away the applicant as he was administering his blows on him.[95]  It was accepted by Mr Sherry that the Judge correctly summarised PW5’s evidence.[96]

65.  This ground of appeal is without merit.

Ground 4: Failure to direct on post-offence conduct

66.  The subject matter of this ground concerns the Judge’s handling of the applicant’s statements after he killed the deceased.  It is complained that the Judge failed to direct the jury that (i)  the evidence of the applicant’s post-offence conduct was of no probative value to the issues of intention for murder and loss of self-control under the partial defence of provocation; (ii)  the post-offence conduct could never on its own prove the applicant’s guilt of the offence charged; (iii)  the applicant could not be convicted of the offence charged simply because of his post-offence conduct; and (iv)  there may have been reasons for the applicant’s post-offence conduct other than a consciousness of guilt for the offence charged.

67.  The complaints in this ground seem to have been abandoned because Mr Sherry in his written submission presented a new argument in which he complains that the Judge failed to give a direction on inferential reasoning in respect of the post-offence conduct.  He submits that the Judge, having directed the jury to consider the applicant’s post-offence conduct when deciding what his intent may have been, misdirected them by omitting to give them a direction on inferential reasoning in terms of Specimen Direction 21. He argues that had the jury been directed on the drawing of inferences, they would have known that they may only rely on the post-killing utterances to infer an intention to kill if that inference was the only reasonable inference to draw from the proven facts.  Furthermore, the jury would have also known that if there was a reasonable inference to draw against the applicant as well as one in his favour, they were not permitted to draw the adverse inference. He directs his complaint to the following remarks from the Judge:[97]

“I have also explained to you as to the intent of the defendant what he did immediately after the chopping may have a bearing. Again, it is a matter for you, you might think, or it has got nothing to do with it, but it may have a bearing show his mindset as I said earlier. That is, what he said to the police when he reported, so look at the transcript.

  Look at what Chinese he actually said. He said to the operator, ‘I stated clearly I will chop you to death’ remember this is the first one.  It is in tab F or your bundle, tab F.  Then what he said outside the shop captured by CCTV, ‘I was going to chop him to death. Thought I was kidding?’ and that is in tab H.  Consider all this evidence, whether you are sure the defendant did have this intention to either kill or cause the deceased very serious bodily harm.  That is the third element of murder.” 

68.  As pointed out by the respondent, this submission is misconceived because what the applicant said after the chopping was direct evidence as to his state of mind for the jury to consider whether the applicant had murderous intent and whether he was provoked.  Accordingly, a direction on inferential reasoning was not required and may have, as the respondent has pointed out, confused the jury.[98]

69.  Mr Sherry referred to Nguyen Anh Nga v HKSAR [99] in support of his submission.  However, that case is distinguishable because it was concerned with an entirely different set of circumstances.  In Nguyen Anh Nga, the appellant’s reaction and non-reaction were the sole piece of circumstantial evidence for the jury to infer the appellant’s knowledge of dangerous drugs contained in her suitcase, whereas the defence at trial had provided another innocent explanation for such reaction and non-reaction to contrast with the prosecution’s case.  In those specific circumstances, it was held that a special direction on inferential reasoning tailored to and set in the context of the appellant’s reaction and non-reaction and the rival arguments thereon would be necessary.

70.  There is no merit in this ground of appeal.

Conclusion

71.  It follows for the reasons I have given that I do not find the grounds of appeal to be reasonably arguable.  Accordingly, I refuse the applicant leave to appeal against his conviction.

72.  The applicant is reminded of his right to renew his application for leave to appeal against his conviction to the Court of Appeal.  Whilst the applicant has received the mandatory sentence of life imprisonment, an indeterminate sentence may, under the provisions of the Long-term Prison Sentences Review Ordinance (Cap 524), be substituted with a determinate sentence.  It is, therefore, appropriate to inform him that the Court of Appeal may include a direction for any loss of time spent in custody pending his appeal if it finds that there is no justification for the renewal of his application.