HKSAR v. HUANG XIANG RONG AND ANOTHER

   CACC338/2008

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF APPEAL

   CRIMINAL APPEAL NO. 338 OF 2008

   (ON APPEAL FROM HCCC 43 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Lunn J (giving the judgment of the court) :

INTRODUCTION

1.  The 1^st and 2^nd applicants applied for leave to appeal against their convictions of the murder of Ms Ip Sau Fun in Hong Kong on 19 June 2007 (Count 1), and the 2^nd applicant only in respect of her conviction of the offence of preventing the lawful burial of Ms Ip Sau Fun’s body (Count 2), following their joint trial before Bokhary J and a jury. On arraignment, the 1^st applicant had pleaded guilty to the count alleging the latter offence.

THE PROSECUTION CASE

2.  The prosecution case was that the deceased was murdered by the 1^st and 2^nd applicants together with a person not named in the indictment, Mr Mo Wenjie (“Mo”), on the instructions of Mr Pao Kwong Keung (“Pao”), a former boyfriend of the deceased with whom he had a financial dispute. The 1^st applicant and Mo entered Hong Kong from the Mainland with a large suitcase on 18 June 2007 and, with the assistance of the 2^nd applicant, checked into a guest-house in Causeway Bay. The 2^nd applicant met the deceased by arrangement at her beauty salon on the 11^th Floor of Yue Fai Commercial Centre, 208 Aberdeen Main Road in the early afternoon of 19 June 2007. The 1^st and 2^nd applicants together with Mo had travelled to Aberdeen with the large suitcase. The 1^st applicant and Mo waited in the vicinity, whilst the 2^nd applicant met the deceased in the salon. As arranged between the three of them, the 2^nd applicant gave the deceased a drink that had been laced with a sedative, estazolam. After the deceased had lost consciousness, the 1^st applicant and Mo went into the beauty salon, where Mo strangled the deceased. Then, he and the 1^st applicant placed her body into the large suitcase, which they carried down to the street and boarded a waiting taxi occupied by the 2^nd applicant, which she had hailed having gone down to the street a few minutes earlier.

3.  The three of them alighted from the taxi in Stanley at the entrance to the PLA barracks and walked to nearby Regalia Gardens, where the 1^st applicant and Mo threw the suitcase into an open manhole in a drainage culvert. Then, the three of them returned to Causeway Bay. The 1^st applicant and Mo returned to the Mainland that evening. For her part, the 2^nd applicant left Hong Kong on 21 June 2007 and, having returned to Hong Kong on 25 June 2007, on the same day she returned to the Mainland not returning to Hong Kong until 18 September 2007.

4.  On 25 June 2007, having responded to a report of a foul odour emanating from the drainage culvert into which the suitcase containing the deceased’s body had been thrown, the police discovered the body of the deceased.

Cause of death

5.  The head of the deceased was enclosed in a bag, the opening to which had been tied around her neck with electrical cord. There was no dispute that that the pathologist’s examination of the deceased revealed the presence of estazolam in the deceased’s liver. However, because of decomposition, the pathologist was unable to obtain the blood level of that drug in the deceased and was unable to give an opinion as to the contribution of the drug to the consciousness level of the deceased at the time of her death. Similarly, decomposition made it impossible for him to identify specifically the cause of death. It could have been as a result of suffocation and smothering, ligature strangulation, postural asphyxia or from an overdose of estazolam.

The records of interview of the applicants

6.  The prosecution relied upon statements made by both the 1^st and 2^nd applicants in records of interview conducted of them by police officers, following their arrests on their return to Hong Kong on 13 August and 18 September 2007 respectively.

The records of interview of the 1^st applicant

7.  The 1^st applicant admitted having been a party to the killing and disposal of the body of the deceased. He said that he felt compelled to comply with Pao’s instructions to kill the deceased because of pressure brought to bear on him arising out of a debt he owed to Pao. The latter arranged for him and Mo to travel to Hong Kong to meet the 2^nd applicant, who would assist them in the various arrangements necessary for the killing. Pao arranged for them to be provided with a large suitcase. After they had all travelled together to Aberdeen the 2^nd applicant had gone ahead to meet the deceased, telling them that she would contact them. A little later the 2^nd applicant contacted them by telephone to tell them that the deceased had already fainted. On entry to the beauty parlour he saw the deceased sitting unconscious on a chair. He and Mo left that room for about 10 minutes and on returning found that the deceased’s head was enclosed in a white hood. After they left the room once again they held a discussion and it was agreed between the 1^st applicant and Mo that the latter would return to the room and kill the deceased. He did so. The two of them placed her body in the suitcase, took it downstairs to a taxi, which had been hailed by the 2^nd applicant, and the three of them made the journey to Stanley, where the suitcase containing the body of the deceased was dumped in the open manhole of the water culvert.

The records of interview of the 2^nd applicant

8.  For her part, the 2^nd applicant told the police that she had been told on the telephone by the 1^st applicant that the deceased was required to account for a sum of money to Pao and that her assistance was requested to arrange a meeting. The 1^st applicant told her that if the deceased refused to disclose the whereabouts of the money he would “Do her in”. She understood that to mean that he might do her harm, including the “possibility of killing her”. In the event, when he came to Hong Kong, the 1^st applicant was accompanied by Mo. The 1^st applicant asked her to assist in ensuring that the deceased drank a drink to be given to her, which drink would have a substance added to it by the 1^st applicant, which would assist him in his interrogation of the deceased by causing the latter to tell the truth.

9.  On the following day, the three of them travelled together to Aberdeen in the early afternoon where they had refreshments in a Kentucky Fried Chicken outlet. There, she saw the 1^st applicant add a substance to a drink, which she was given and subsequently she gave to the deceased to drink when she met her in her nearby beauty parlour. She described the deceased as gradually having fallen asleep, even slobbering as she did so. In answer to a telephone enquiry from the 1^st applicant, she confirmed that was the deceased’s condition. Then, the 1^st applicant and Mo came into the beauty parlour and the former placed a hood over the deceased’s head whilst the latter strangled her with wire, after which both of them placed her in the large suitcase that they had brought to the premises. She had been surprised and shocked at this sudden development. Nevertheless, at the request of one of them she had gone downstairs and hailed a taxi. The two men joined her a short while later and placed the suitcase in the boot of the vehicle. Then, they drove to Stanley, where they alighted from the vehicle and after they had walked for a while, the two men dumped the suitcase in an open manhole to a water culvert.

10.  After they had returned to the guesthouse in Causeway Bay, at their request, she had thrown away items of clothing that had been worn that day by the two men and, having bought replacement items of clothing for herself, she threw her own clothes away.

THE DEFENCE CASE

11.  Both the 1^st and 2^nd applicants gave evidence at their trial. Neither of them had been convicted of any criminal offence. Each of them denied that the statements that they had made respectively to the police were made voluntarily. They testified that they had been made in consequence of inducements, threats oppression and assaults.

The 1^st applicant’s case

12.  The 1^st applicant testified that he was a single man, 33 years of age and a business partner of Mo, trading in electronic goods. He knew Pao from the middle of 2005, when the latter had treated his mother. Often, when he came to Hong Kong, Pao arranged accommodation for him. A few months prior to June 2007 he met the 2^nd applicant, after which he met both of them on the Mainland and in Hong Kong. Also, he knew the deceased, having met her at Pao’s home.

13.  At Pao’s request he and Mo came to Hong Kong on 18 June 2007 in order to move some objects for Pao. He and Mo intended to take advantage of the trip in order to check on the price of electronic goods in Hong Kong. In Shenzhen, immediately prior to their arrival in Hong Kong, Mo was given a large suitcase and a letter to bring to Hong Kong by “Ah Hung” and instructed to contact the 2^nd applicant on arrival in Hong Kong. The 2^nd applicant arranged for them to stay in a guesthouse in Causeway Bay.

14.  On the following day the three of them met at the guesthouse and then travelled to Aberdeen. Mo told him that they were going to the deceased’s premises in order to collect property belonging to Pao. He was not surprised at learning that, since he had understood from Pao that the deceased had committed adultery and cheated him of money. On arrival in Aberdeen, the 2^nd applicant went ahead of them to meet the deceased at her beauty parlour, whilst he and Mo waited in the vicinity.

15.  After being informed by telephone by the 2^nd applicant that she had finished her talk with the deceased, he and Mo went up towards the deceased’s beauty parlour to obtain Pao’s possessions. However they met Pao himself at the lift entrance of the building in which the deceased’s beauty parlour was located. At his request, they waited in the rear staircase until, having been telephone by Pao, they entered the beauty salon. There, they saw Pao and the deceased. The latter was hooded and lying on the floor. Pao told them to move the body and threatened them that, if they did not do so, he would “Frame them up”. Having gone to the rear staircase to discuss what they should do, he and Mo returned to the beauty parlour and placed the deceased’s body in the suitcase. He was not sure if she was dead. He felt compelled to assist Pao since he realised that he could be identified from photographs taken on CCTV in the lift lobby and the lift itself.

16.  Then, after Pao had left the beauty parlour and called out for the 2^nd applicant, the latter entered the beauty parlour and was told by Pao to go downstairs and hail a taxi, so that the three of them could go to Stanley. A short while later he and Mo carried the suitcase containing the body of the deceased and placed it into a taxi, in which the 2^nd applicant was waiting. The three of them travelled to Stanley, where they dumped the suitcase and then returned to the guesthouse in Causeway Bay. That evening he returned to the Mainland.

17.  The 1^st applicant explained that he had not told the police in the interviews they conducted of him that Pao had killed the deceased because, just before he left the deceased’s beauty parlour, Pao told him that if anything went wrong he was not to reveal the fact of Pao’s presence and threatened him that, if he did so, he would cause trouble to him and his family, adding that at the worst he would be charged with unlawful disposal of the body.

The 2^nd applicant’s case

18.  The 2^nd applicant testified that she was 52 years of age, a married woman with three children and a business partner of Pao. She denied having had a sexual relationship with him. She knew the 1^st applicant, having met him when he visited Pao’s clinic and also when she met him on the Mainland when she went there for business with Pao. The first time that she met Mo was when he accompanied the 1^st applicant to come to Hong Kong on 18 June 2007. She knew the deceased and, although at an earlier stage there had been a conflict between them arising out of the fact that the 2^nd applicant worked with Pao, they enjoyed an ordinary relationship after she had told the deceased that her relationship with Pao was one of business only.

19.  The 2^nd applicant said that she had assisted the 1^st applicant to obtain a room at a guesthouse in Causeway Bay at the latter’s request by telephone. When she met the 1^st applicant and Mo on 18 June 2007 the latter was carrying a suitcase and handed her a letter, which she understood to come from Pao, requesting her to assist them in contacting the deceased. On the following day, she arranged a meeting with the deceased to take place between the 1^st applicant and Mo. As requested by the deceased, she went up to the beauty parlour first to meet the deceased. She left the 1^st applicant and Mo in a Kentucky Fried Chicken outlet where they had had refreshments together. On the 11^th Floor lift lobby of the building housing the deceased’s beauty parlour she encountered the deceased and entered the beauty parlour together with her. There, she saw Pao, who left the premises saying that he did so, so that the two women could talk together. After about twenty to thirty minutes Pao returned. The 2^nd applicant left the premises at Pao’s request that she do so, to afford him the opportunity to talk to the deceased before the 1^st applicant came to the premises.

20.  Whilst she waited outside the beauty parlour she heard the sound of the raised voice of Pao arguing with the deceased. After ten minutes Pao came out of the beauty parlour and asked her to call the 1^st applicant. She did so and a short time later the 1^st applicant arrived together with Mo, who was carrying the suitcase. After the two men had a conversation with Pao, who came out of the beauty parlour, the three men entered the beauty parlour. As instructed by Pao she waited at the rear staircase. During the hour-long period that she waited there, and while she was seated on one of the steps, she heard part of a conversation between Pao and the 1^st applicant in which the former referred to a debt owed by the latter to him and said : “Now you already know it is a difficult for you to get out of it.” Subsequently, she heard the 1^st applicant and Mo holding a discussion at the rear staircase.

21.  Then, Pao told her to take the 1^st applicant and Mo to Stanley, and to go and hail a taxi in order to do so. She did so, and a little while later the 1^st applicant and Mo placed a suitcase in the boot of the taxi and the three of them travelled to Stanley where they alighted at Regalia Bay. As instructed by the 1^st applicant, she walked ahead of them and after a while became aware that they no longer had possession of the suitcase. Thereafter, they returned by taxi to the guesthouse in Causeway Bay where the two men changed clothes, after which they deposited various items in a series of rubbish bins. After they had dinner she assisted them to check out of the guesthouse and they parted company. However, then she too purchased new items of clothing.

22.  The 2^nd applicant denied that she had entered into any conspiracy with Pao, the 1^st applicant or Mo to cause any injury to the deceased. She never felt that they would do such a thing. She never thought that the deceased had been killed and therefore had nothing to do with the disposal of her body.

An alternative case

23.  Although the 2^nd applicant’s primary case was as articulated in her evidence, namely that she had not been a party to the killing of the deceased at which she was not even present, her counsel Mr Richard Donald nevertheless invited the jury to consider, as an alternative, the account that she had given in the records of interview conducted of her by the police. Again, her primary position was that she had not given those accounts voluntarily, rather as a result of improper police conduct she had related an account that they wished her to tell, which was not the truth. Her counsel suggested that her account given to the police was not an admission of being a party to a joint enterprise to kill the deceased, rather she admitted only to agreeing with the 1^st applicant and Mo to arranging a meeting with the deceased, at which she gave the deceased a drink which contained a substance which would cause her to answer truthfully questions asked of her by the 1^st applicant and Mo as to the whereabouts of Pao’s money. In particular, she had said that when the 1^st applicant placed a hood over the deceased’s head and Mo encircled her neck with wire her reaction had been :

“I felt very surprise[d] and in fact, I could do nothing.  That is to say, I was very scared.  I had never thought that they could really do it to a real person in this way—really to strangle her neck.”

24.  Of the fact that she had told the police that the 1^st applicant had told her on the telephone that if the deceased refused to disclose the whereabouts of the money he would “Do her in”, the 2^nd applicant explained to the police that prior to going to the deceased’s beauty parlour she had thought :

“… that he would let her finish the drink and then she would confess honestly and that if she did not, what I thought was that ‘In extreme case you would only beat her up or punch her, like that’ and that is what I sensed.  If he said, ‘To do her in’, I thought, ‘Are you two insane?  There is law in Hong Kong.’  My position was, as long as you tell me honestly that you are to do the truth/lie detection, this I will help you.  I… you said you only require me to make an appointment with her, ‘I only want to ask her for the whereabouts of the money’, so my sense is, I would also like to help this friend to get back their so-called ‘their own thing’, in their mind, money.”

25.   25. In conclusion, her counsel submitted to the jury that whilst the 2^nd applicant had not been a party to an agreement to kill or cause grievous bodily harm to the deceased, nevertheless she had been a party to do an unlawful act to the deceased and in consequence was guilty of manslaughter only.

GROUNDS OF APPEAL AGAINST CONVICTION

The 1^st applicant

26.  By Grounds 1 and 2, the 1^st applicant contended that the judge failed to direct the jury that, if they did not accept that the evidence of the applicants was or might be true, nevertheless they could only convict the 1^st applicant if satisfied that the prosecution had proved all the ingredients of the offence beyond a reasonable doubt. Further, that if any part of their evidence raised a reasonable doubt in the prosecution case they should acquit. By Ground 3, it was submitted that the judge had erred in describing to the jury on three occasions that the out-of-court statements of the 1^st applicant amounted to a “full confession” to murder. By Grounds 4 and 5, it was contended that the summing-up was “unbalanced and unfair”, as a result of the sequence in which the judge had reviewed the evidence, namely describing the inculpatory parts of the records of interview of the applicants after having reminded the jury of the evidence of the applicants. Finally, by Ground 6, it was contended that, in light of those grounds and/or generally, the 1^st applicant’s conviction was “unsafe and/or unsatisfactory”.

The 2^nd applicant

27.  By Grounds 1 and 3, it was contended on behalf of the 2^nd applicant that the judge had failed to put the applicant’s case in relation to joint enterprise to the jury, namely that :

“the applicant had no knowledge of or intention that the co-accused would kill the victim and that the co-accused and the wanted person had thereby gone well beyond what was contemplated or foreseen by the applicant.”

Further, that the judge had failed to draw to the attention of the jury to the exculpatory parts of her out-of-court statements relevant to that issue, rather she concentrated on the inculpatory parts.

28.  By Ground 2, it was submitted that the judge had erred in failing to give a Liberato direction and had aggravated that omission by directing the jury to approach the evidence of the 2^nd applicant on the basis of whether or not it was “reasonably possible” that events happened as she described.

29.  By Ground 4, it was submitted that although the judge had directed the jury correctly, that in considering the case of the 2^nd applicant they were to ignore what the 1^st applicant had said of the 2^nd applicant in his out-statement of-court statements, nevertheless in her summing-up she had repeatedly highlighted that evidence. Further, she had done so even in respect of Count 2, in respect of which the 1^st applicant had pleaded guilty on arraignment.

SUBMISSIONS OF THE APPLICANTS

Grounds 1 and 2 of the 1^st applicant; Ground 2 of the 2^nd applicant : the failure to give a Liberato direction

30.  Whilst he accepted that the judge had given an appropriate direction to the jury in respect of the standard and burden of proof, Mr McGowan for the 1^st applicant submitted that that the judge was in error in not giving the jury a Liberato direction, namely that :

“… even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if it gives rise to a reasonable doubt as to that issue.”

[See the judgment of Brennan J in the High Court of Australia in Liberato v R (1985) CLR 507 at 515].

31.  Further, that such directions that the judge did give, did not comply with the requirement identified in the judgment of Bokhary PJ, with whom all the other judges agreed, in Sze Kwan Lun v HKSAR (2004) 7 HKCFAR 475, at page 487A, paragraph 27, approving of that direction and observing that whatever words were used, “that message must be conveyed to the jury.”

32.  For his part, Mr McCoy, SC supported Mr McGowan’s submissions on this point but in addition contended that, in the context of the 2^nd applicant having admitted in her out-of-court statements to the police that she suggested Stanley as the destination to take in the taxi from Aberdeen, the judge had erred in directing the jury to consider whether it was “reasonably possible” that the 1^st applicant and Mo, they being from the Mainland and relative strangers to Hong Kong, would have been able chose to Stanley as a place to dispose of the body and to find a suitable place there to do just that. The judge had said to the jury in her summing-up (page 73P–T) :

“From what the 2^nd accused said in her out-of-court statements, the two men involved in the killing needed her help even to find a guesthouse to stay in while in Hong Kong.  Is it reasonably possible that they would be able, without her help, to choose Stanley as the place to go and to find a place there in which to dispose of the deceased’s body?  Indeed, she said in her out-of-court statements that it was she who mentioned going to Stanley as one way to go.”

Ground 4 of the 2^nd applicant : the judge’s reference to the out-of-court statements of the1^st applicant in which the conduct of the 2^nd applicant was described

33.  Mr McCoy submitted that there were repeated references to the conduct of the 2^nd applicant, prejudicial to her interests, in the selected passages of the out-of-court statements of the 1^st applicant that the judge read to the jury in her summing-up. He invited the Court to accept that those references extended to their joint efforts to effect the disposal of the corpse of the deceased, to which count the 1^st applicant had pleaded guilty on arraignment. Accordingly, he submitted that those references were not only entirely unnecessary to assist the jury in a consideration of the case against the 1^st applicant but also prejudicial to the 2^nd applicant. Furthermore, he drew attention to the fact that, in reading out such passages the judge contradicted her earlier statement to the jury that she would not draw attention, “to any admission about the removal of the body by the first accused who has pleaded guilty to Count 2”.

Grounds 1 and 3 of the 2^nd applicant : the failure to remind the jury of the 2^nd applicant’s case in relation to joint enterprise, in particular as set out in her records of interview.

34.  On the first day of the hearing, on 21 July 2009, the court adjourned the proceedings in order to receive the considered submissions of counsel for the prosecution and the 2^nd applicant on two issues :

(i)  Where a defendant gives evidence that offers a defence inconsistent with that offered in a mixed statement admitted in evidence, what directions, if any, is a judge to provide to a jury as to how the jury should treat the exculpatory part of the admitted statement?

(ii)  In what circumstances, if any, is a judge to leave the prior inconsistent defence to the jury?

Out-of-court statements and testimony : a consistent account

35.  On behalf of the 2^nd applicant, Mr McCoy, submitted that where the out-of-court statement of a defendant is wholly consistent with his testimony there was no duty on the judge to sum up separately in relation to that statement, except to invite the jury to note that both the inculpatory and exculpatory parts of the statement :

“a)  are available to the jury as evidence of the truth just as his oral testimony; subject to determination of their weight;

b)  demonstrate consistency of the defendant’s account; and

c)  are evidence of the time of the making by the defendant of that initial account.”

[See R v Cheung Hon Kwong (unreported CACC503/89, 14 August 1990 at pages 16–17); R v Chan Chi Wai [1992] HKCLR 1; R v Luk She Bun (unreported CACC196/92, 31 March 1993 at page 6); R v Vu Trong Minh[1995] 1 HKCLR 24 at page 30; and HKSAR v Kwan Chi Wing (unreported CACC201/2008, 5 June 2009).]

Out-of-court statements and testimony : an inconsistent account

36.  Mr McCoy submitted that, by contrast, where a reasonable jury could conclude that there was a material difference between or inconsistency with the out-of-court statements and the testimony of the defendant and that difference or inconsistency provides or might provide a further or alternative defence the judge must direct the jury fully and fairly in relation to that further or alternative defence :

“even if such further or alternative defence is not raised by either the prosecution or defence, or even if it is eschewed by the defence or is inconsistent with any other defence advocated by the defence.”

37.  In support of that submission, Mr McCoy relied upon the judgment of Chan PJ, with whom all the other judges agreed, in the Court of Final Appeal in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354. Chan PJ cited with approval the decision of the House of Lords in R v Coutts [2006] UKHL 39 and the decision of the Privy Council in Von Stark v The Queen [2001] 1WLR 1270. In the latter case, Lord Clyde had said of the judge’s duty (page 1275D–E) :

“It is his responsibility not only to see the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions.  It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is able to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them.”

“threshold test”

38.  Of the test to be applied, in determining whether or not an alternative defence ought to be left to the jury, Mr McCoy submitted it was a low one. In support of that submission, he drew the court’s attention to the approval in the judgment of Chan PJ in Ho Hoi Shing (pages 361H–362C, paragraph 14) of that test articulated by Lord Clyde in Von Stark (page 1275E–G), namely :

“If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable judge could reasonably accept it, then of course the judge is entitled to put it aside.  The threshold of credibility in this context is, as was recognized in Xavier v The State (unreported) 17 December 1998, Appeal No. 59 of 1997 a low one, and, as was also recognized in that case, it would only cause unnecessary confusion to leave to the jury a possibility which can be seen beyond reasonable doubt to be without substance.  But if there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to put the possibility before the jury.”

The 2^nd applicant’s alternative defence

39.  Mr McCoy submitted that the fact that there existed an alternative defence to that articulated by the 2^nd applicant in her testimony was canvassed specifically by the 2^nd applicant’s counsel in his closing speech (see paragraph 23 above). The jury was urged to accept the 2^nd applicant’s evidence and to reject her out-of-court statements but invited, if they did not do so, to examine the exculpatory parts of those out-of-court statements which, it was said, established that while she was a party to an agreement to trick the deceased into drinking a drugged drink she was not a party to an agreement to kill her or cause her grievous bodily harm. Accordingly, he submitted that not only had the judge a duty to leave that alternative defence to the jury but also a duty to remind them of the exculpatory parts of the 2^nd applicant’s out-of-court statements relevant to the issue. He submitted that the judge failed to discharge that duty.

THE RESPONDENT’S SUBMISSIONS

Grounds 1 and 2 of the 1^st applicant and Ground 2 of the 2^nd applicant : the failure to give a Liberato direction; approaching the defence evidence on the basis of whether or not it was a “reasonable possibility”

40.  Mr Zervos reminded the court that, in the course of her summing-up, the judge had repeatedly told the jury that before they could convict an accused they had to be satisfied so that they were sure of the accused’s guilt. First, she gave the classic direction in respect of the burden and standard of proof. Then, she directed the jury (summing-up : page 10L–O) :

“But you must always remember that no jury can accept, conclude, decide, find, think or believe and so on anything against an accused unless satisfied beyond reasonable doubt as to the correctness of such acceptance, conclusion, decision, finding, way of thinking or belief and so on.”

Also, she directed the jury (summing-up : page 60H–K) :

“... an accused is entitled to be acquitted if you think that his or her denial of guilt is true or might be true.  And even where you feel sure that an accused has lied no accused can be convicted of any offence just because he or she has lied.”

Mr Zervos submitted that, as was made clear in the judgment of Bokhary PJ in Sze Kwan Lung, there is no requirement to use the exact words of Brennan J in Liberato but, in any event, the judge had clearly complied with the general principle laid down there and in Sze Kwan Lung.

“reasonably possibile”

41.  Of the use by the judge of the phrase “reasonably possible”, in posing the question as to whether, without the help of the 2^nd applicant, the 1^st applicant and Mo could have chosen Stanley as the destination to seek a place to dispose of the deceased’s corpse, she having stated in her out-of-court statements that it was she who suggested Stanley as the destination, Mr Zervos invited the Court to have regard to the decision of this Court in HKSAR v Lo Hon Hing [2009] 1 HKC 205 in which it was determined that such a direction did not constitute a misdirection to the jury of its approach to the evidence of the defence (see paragraphs 24–30).

Grounds 3, 4 and 5 of the 1^st applicant : an unbalanced and unfair summing-up

42.  In the first place, Mr Zervos submitted that the judge had prefaced her observations as to the inferences to be drawn from particular pieces of evidence, by telling the jury that it was a matter for them whether or not they reached a particular determination. Secondly, he suggested that the judge’s categorization of the out-of-court statements of the 1^st applicant as being a “full confession to murder” could not be faulted as a matter of fact. Mr Zervos suggested that, as part of a balanced approach to the evidence, the judge had directed the jury that they consider the “assertions, excuses and explanations” contained in the 1^st applicant’s records of interview. Also, he invited the Court to note that the judge had summarised the 1^st applicant’s evidence at trial in some detail.

43.  Mr Zervos submitted that there was no merit any of the specific grounds of appeal sought to be advanced on behalf of the 1^st applicant nor in the submission that his conviction was “unsafe and unsatisfactory”.

Grounds 1 and 3 of the 2^nd applicant : the failure to remind the jury of the 2^nd applicant’s case in relation to joint enterprise, in particular as set out in her records of interview

Out-of-court statements and testimony : a consistent account

44.  Mr Zervos submitted that the judge had accurately summarised the evidence of the 2^nd applicant and the witnesses called on her behalf. There was no duty on a judge to direct a jury in respect of the exculpatory statements made by a defendant in out-of-court statements adduced into evidence by the prosecution as part of a ‘mixed’ statement, where the defendant had given evidence and maintained the exculpatory explanation. In support of that submission, he relied upon the judgments of this Court in The Queen v Cheung Hon Kwong (unreported, CACC503/1989, pages 15–17; 14 August 1990); The Queen v Luk She Bun (unreported, CACC996/1992, pages 6–7; 31 March 1993); Vu Tron Min and Kwan Chi Wing (supra). He accepted that, in appropriate circumstances, a judge might be required to give a direction in which the jury were reminded of the consistency between the defendant’s exculpatory out-of-court statements and his evidence at trial [see HKSAR v Wong Chi Wan (unreported, CACC156/2005, 29 March 2006 at paragraphs 20–21)].

An analysis of the out-of-court statements and testimony of the 2^nd applicant

45.  Mr Zervos contended that in her testimony the 2^nd applicant maintained the exculpatory account that she had given earlier in her out-of-court statements to the police, namely that she denied knowing of, let alone being a party to, the killing of the deceased. He submitted :

“D2’s defence at trial was all along a lack of knowledge.  She maintained that she was not a party to the killing.  She did not know the deceased was going to be killed.  The exculpatory part of her out-of-court statements revealed the same defence except her version as to what happened was different.”[italics added]

46.  Of the difference, between the account given by the 2^nd applicant in her out-of-court statements and her evidence, Mr Zervos suggested that :

“In her out-of-court statements Pao was not present.  She gave the deceased drink which contain something that would make her tell the truth and this all had to do with a money matter between the deceased and Pao.  D1 and Mo came up and Mo strangled the deceased.  D1 put a hood over her head.  She saw D1 and Mo about to put the deceased in the suitcase.  Consistent with both versions she claimed she did not know that the deceased would be killed and was not a party to the killing.  D2’s testimony contrasted with her out-of-court statements in that she testified that Pao was present and alone with the deceased.  She waited outside and heard noises.  D1 and Mo came up afterwards and she heard Pao tell D1 that it was difficult to get out of it.”

47.  Furthermore, Mr Zervos submitted that the 2^nd applicant had “benefited greatly” by the judge not highlighting the inconsistency between the two versions of events that she had given. He suggested that the version given in the out-of-court statements “... far from being exculpatory, was in fact more incriminatory”.

Ground 4 : the judge’s references to the out-of-court statements of the1^st applicant, in which the conduct of the 2^nd applicant was described

48.  In the first place, Mr Zervos reminded the court that the judge had directed the jury to deal with the case of each applicant separately and told them in terms that what one co-accused said about another in an out-of-court statement was not evidence against a co-accused. Mr Zervos accepted that, although the judge had told the jury that given that the 1^st applicant had pleaded guilty to Count 2 on the indictment in respect of the disposal of the corpse of the deceased she would not draw attention to the admissions of the 1^st applicant in that respect, nevertheless she did so. However, he suggested that the references were of limited scope and confined to a description of the events of the three of them, the 1^st and 2^nd applicants and Mo, leaving the premises in which the deceased’s beauty parlour was situated in Aberdeen, boarding a taxi with the suitcase containing the body of the deceased and setting off for Stanley.

A CONSIDERATION OF THE SUBMISSIONS

Grounds 1 and 2 of the 1^st applicant and Ground 2 of the 2^nd applicant : the failure to give a Liberato direction; approaching the defence evidence on the basis of whether or not it was “reasonably possible”

49.  There is no merit in the submission that the judge failed to give the jury a proper direction of the approach that they should take in determining the issue of guilt, in circumstances in which they rejected the evidence or the out-of-court statements of an applicant(s). We have no doubt whatsoever that, in context, the judge made it abundantly clear to the jury that the prosecution had to prove its case so that the jury were sure of the guilt of the accused and that, even if the jury found an accused to have lied either in or out of court or both that cannot of itself lead to a conviction. The jury were directed correctly, albeit not in the very words of Brennan J in Liberato but certainly as to the content of the “message” required (See Sze Kwan Lung). The judge directed the jury (summing-up : Page 60H–O) :

“An accused is entitled to be acquitted if you think that his or her denial of guilt is true or might be true.  And even where you feel sure that an accused has lied, no accused can be convicted of any offence because he or she has lied.  No accused can be convicted of any offence just because he has lied, whether in court, out-of-court or both.

The prosecution asks you to reject both accused’s evidence, but the prosecution are not asking you to convict either of them of any offence for that reason alone.  The prosecution is asking you to convict both of them of murder and the second accused of prevention of lawful burial on the whole of the evidence, which the prosecution says leads to a sure conclusion of guilt on the part of each accused as charged.”

Exculpatory assertions of the applicants : “reasonably possible”

50.  In Lo Hon Hing, the same trial judge summed-up in a case in which the prosecution alleged a joint enterprise of murder, in which the deceased was attacked by a number of men armed with knives from which injuries she died. In an out-of-court statement adduced in evidence by the prosecution, the 1^st appellant claimed that he acted as a lookout and said that, although he knew that three of the assailants were armed with knives he had told them not to use the knives, but instead to beat the deceased with fists and only to use the knives to ‘scare’ others who might intervene to save the deceased. In summing-up to the jury, the trial judge had said :

“As to using your common sense, you may ask yourselves this.  Suppose a group of men go somewhere for the purpose of an attack on a person, whether he goes to act as actual attacker or as lookout, is it reasonably possible that any member of the group would not know what sort of victim it would be?  Is it reasonably possible that he would not know what sort of attack it would be?  Or do you think that the only reasonable inference in this case is that each man knew all of that?”

51.  In the rejecting the challenge that the direction violated the burden of proof, in the judgment of this Court, delivered after the summing-up in the instant case, Stuart-Moore VP said (page 212I, paragraph 29) :

“In our opinion, the use of the phrase ‘reasonably possible’ in the context the judge used it was not objectionable.  A jury, exercising its commonsense when deciding what evidence to accept, is expected to approach its task on a rational basis.  In this sense, something which is possible can only sensibly be reasonably possible.  This being so, we consider that it is preferable for judges to use the well-established direction that if something said by a defendant ‘is or may be true’ then it should be decided in his favour.”

52.  In refusing to grant a certificate in its Determination of an application by the appellants for leave to appeal in Lo Hon Hing & Others v HKSAR (unreported, FAMC10/2009, 23 June 2009) the Appellate Committee of the Court of Final Appeal approved of that statement (paragraph 5) :

“In our view, the Court of Appeal was plainly right in its conclusion.  While it is preferable for judges to use the well-established ‘is or may be true’ direction, the use of the phrase ‘reasonably possible’ was in the context in which it was used in the present case unobjectionable.  The phrase was only used by way of example as to how to exercise common sense in deciding what evidence to accept, meaning the something which was not reasonably possible would be purely speculative.  The phrase was not part of and did not in any way affect the Judge’s clear directions on the burden and standard of proof as to which no complaint is made.”

53.  We are satisfied that in the context of this case, the judge was doing no more than inviting them to apply common sense to resolving the issue of whether or not they accepted the 2^nd applicant’s out of court statement to the police, that she had resolved the dilemma of which destination to give to the taxi driver in Aberdeen, by telling the 1^st applicant and Mo (videotape of the re-construction : counter #269) “Here one way to go is Stanley” and then directing the driver accordingly. Nonetheless, as the Appellate Committee of the Court of Final Appeal stated in its Determination, it would have been preferable to have employed the well-established “is or may be true” direction.

Grounds 3, 4 and 5 of the 1^st applicant : an unbalanced and unfair summing-up

“a full confession”

54.  We are satisfied that the contention made in Ground 3 of the 1^st applicant’s Grounds, namely that the judge erred in categorizing the contents of the 1^st applicant’s records of interview as amounting to “a full confession” of the murder of the deceased is unjustified. It was an accurate categorization, born of common sense. More importantly, the judge made it perfectly clear that the issue of whether or not the jury accepted that was “a matter for them”. She did not usurp their function. The judge directed the jury succinctly and accurately as to the correct approach to the issues of voluntariness and truth of the contents of the records of interview.

“unbalanced and unfair”

55.  The complaints made in Grounds 4 and 5 of the 1^st applicant’s grounds that the sequence in which the judge dealt with her review of the evidence in the trial resulted in an unbalanced and unfair summing-up are without merit. The judge enjoyed a wide discretion as to the structure and sequence of her review of the evidence in her summing-up. In choosing to deal with the details of the accounts given in the records of interview of both applicants, not only after she had dealt with the prosecution case but also after she had dealt with the evidence adduced in the defence case, it is to be noted that the judge did so after directing the jury to have regard to the whole of the out-of-court statements including the “assertions, excuses and explanations” of the respective applicants. Of course, in addressing the evidence in that sequence the jury were able to address, in sequence, the primary issue posed for them by the judge, after considering the evidence of the prosecution and that of the applicants, of whether or not the statements made in the respective records of interview were voluntarily made, before they moved to consider whether they accepted them as being true.

Ground 4 of the 2^nd applicant : the judge’s reference to the out-of-court statements of the1^st applicant in which the conduct of the 2^nd applicant was described

56.  As Mr Zervos conceded, in reviewing and reading to the jury passages of the out-of-court statements made by the 1^st applicant to the police, the judge did breach the undertaking she gave to the jury earlier in the summing-up, that she would not refer to admissions made by the 1^st applicant about “the removal of the body”. In particular, she read to them the 1^st applicant’s description of the involvement of the 2^nd applicant, whom the 1^st applicant described as “Gina” (page 68P–S) :

“Then Gina was told to go down to hail a taxi, to hail a taxi.  Well, er told Gina to think beforehand of a place to dump her because at that time there might be comparatively more people as it was a festive holiday.  Well, I didn’t know, didn’t know how Gina thought of Stanley and suggested to go to Stanley first.”

57.  In the ensuing answers of the 1^st applicant, read to the jury by the judge, he gave a description of the 2^nd applicant having hailed a taxi, which he and Mo boarded after they had placed the suitcase in the boot after which the 2^nd applicant told the taxi driver to go to Stanley. Although the judge went on to refer to other passages of the 1^st applicant’s out-of-court statements, she ended her description in the chronological sequence of events at that point, with the vehicle being driven off towards Stanley.

58.  There is no dispute that, earlier in her summing-up, the judge had given the jury repeated directions of the correct approach that they were to take in approaching the use to be made of the out-of-court statements of an accused. She said (page 21A–I) :

“As I have already told you in the course of the trial, what an accused says in a statement made out-of-court can never adversely affect anybody other than himself or herself.  It is not evidence against any co-accused.  As against any co-accused, disregard it altogether.  Bear that carefully in mind throughout.  Remember always-I most strongly emphasise this-that what one person, that is a statement maker says in his or her out-of-court statement against another person or other persons is only evidence against the statement maker himself or herself.  It is not evidence in any shape or form whatsoever against any other person or persons.  No out-of-court statements can be used against anyone other than the maker of that statement.  It is not to be used against any other accused, whether directly or indirectly whether by way of comparing the statements of co-accused, or in any other way whatsoever.  As against any accused no use whatsoever can be made of anybody else’s out-of-court statement.”

59.  Although the judge had told the jury that she would not draw their attention to passages of the 1^st applicant’s out-of-court statements in respect of the removal of the body of the deceased, clearly his out-of-court admission that he had prepared beforehand for the need to dispose of the corpse of the deceased was relevant to the consideration by the jury of the issue of the 1^st applicant’s intention prior to going to the beauty parlour. Perhaps, it was for that reason that the judge dealt with the out-of-court statements of the 1^st applicant in which he described the circumstances of leaving the beauty parlour, but did not go on to deal with any of the statements that he made in respect of the disposal of the corpse.

60.  There is no reason to think that, in particular given the repeated directions that they received from the judge, the jury would not have complied with the judge’s directions of the use to be made of the contents of the out-of-court statements of each of the accused. There is no merit in this ground of appeal.

Grounds 1 and 3 of the 2^nd applicant : the failure to remind the jury of the 2^nd applicant’s case in relation to joint enterprise, in particular as set out in her records of interview.

Out-of-court statements and testimony : a consistent account

61.  There is no dispute that the exculpatory parts of a ‘mixed’ statement are evidence of the truth for the jury to consider, albeit that a jury might consider them as of less weight than the inculpatory parts of the statement. In consequence, a judge is required to give the jury a direction to that effect. Clearly, if in his evidence a defendant adopts the exculpatory explanation contained in his out-of-court statements, adduced into evidence by the prosecution as part of a mixed statement, there is no need or requirement for the jury to be directed to consider separately the exculpatory parts of that statement as evidence of the truth. The resolution of that issue has been overtaken by the defendant’s testimony. A direction that the accounts are consistent may be appropriate.

Out-of-court statements and testimony : an inconsistent account

62.  If the defendant in his evidence gives an account which, although exculpatory, is nonetheless different from the exculpatory account advanced in his mixed out-of-court statements that are before the jury, the out-of-court statements are not subsumed by the defendant’s evidence, rather they stand separately. Nevertheless, it remains evidence that the jury is to be directed to consider as to the truth of the account. Accordingly, the judge is under a duty to give the jury such a direction.

The 2^nd applicant’s out-of-court statements : testimony

63.  We are satisfied that in the circumstances of the 2^nd applicant the account that she gave in her mixed out-of-court statements, although exculpatory in a material part, is quite clearly a different account to that which she gave in her evidence. The fact that in both accounts she denied being a party to the killing, does not of itself render the two accounts wholly or materially consistent. As Mr Zervos accepted, in her out-of-court statements the 2^nd applicant said that not only had she agreed to trick the deceased into drinking a drink laced with a drug but also that she had carried that plan out, at which point she had informed the 1^st applicant and Mo of that fact. She had done so having been told by the 1^st applicant that the drug would have the effect on the deceased of causing her to answer truthfully questions asked of her as to the whereabouts of Pao’s money. She had reached an agreement with the 1^st applicant and Mo that she would carry out that plan.

64.  Furthermore, she said that although the 1^st applicant had said to her on the telephone that if the deceased did not reveal the whereabouts of Pao’s money he would “Do her in”, it came as a surprise to her that the 1^st applicant placed a hood over the deceased and Mo strangled her with wire. As noted earlier (paragraph 23), the applicant said in her second video record of interview (counter #34) :

“I felt very surprise (d) and in fact, I could do nothing.  That is to say, I was very scared.  I had never thought that they could really do it to a real person in this way—really to strangle her neck.”

She was very scared at these developments and conducted herself as she did thereafter in that state of fear.  She was not a party to an agreement to kill or do grievous bodily harm to the deceased, although she was a party to an agreement with the 1^st applicant and Mo that she would administer a noxious substance to the deceased.

65.  In other answers in her records of interview, of what it was that she anticipated the 1^st applicant and Mo would do to the deceased at the meeting in her beauty parlour, the 2^nd applicant made statements that were both exculpatory and inculpatory. Of the 1^st applicant’s statement to her, on the telephone prior to his arrival in Hong Kong, that if the deceased refused to disclose the whereabouts of the money he would “Do her in”, the 2^nd applicant said that she thought that the 1^st applicant meant “Perhaps to cause harm to her”; “She might possibly be killed”. Of the time at which she was actually in the beauty parlour, the 2^nd applicant said that she thought that :

“… he would let her finish the drink and then she would confess honestly and that if she did not, what I thought was that ‘In extreme case you would only beat her up or punch her, like that’ and that is what I sensed.  If he said, ‘To do her in’, I thought, ‘Are you two insane?  There is law in Hong Kong.’ ”

Of what she had thought the 1^st applicant and Mo would do when the electric wire was encircled around the deceased neck, the 2^nd applicant said (counter #617–8) :

“I thought he would faint her, perhaps only to extort a confession at some other place.  That is, what I sensed was… I did not expect that she would be killed.”

66.  Therefore, it is clear that her out-of-court statements were in their effect materially different from her evidence. In her evidence, she was not in the room at the time of the killing. In her statements to the police, she was. Most significantly, however, in her statements she clearly asserted that the actions of the 1^st applicant and Mo, which resulted in the deceased’s death, went beyond any agreement to which she was party and she had contemplated as a reasonable possibility. If this was, or may have been, true she was guilty of neither murder nor manslaughter.

67.  In the result, we are satisfied that the judge had a duty to leave to the jury that aspect of the 2^nd applicant’s defence set out in her out-of-court statements, but not adopted in her testimony. In order to do so adequately, the judge was required to remind the jury of the salient features of the 2^nd applicant’s exculpatory account in her out-of-court statements. Of course, in giving the jury a balanced review of the evidence, the judge was required to remind them of the relevant inculpatory statements made by the 2^nd applicant in her out-of-court statements and to place both matters in the context of all the evidence received in the trial.

Alternative verdict :manslaughter by an unlawful and dangerous act

68.  In her summing-up, the judge directed the jury as to the law in respect of murder (Count 1) and, as an alternative to that count, in respect of the law in relation to manslaughter by a dangerous and unlawful act. In particular, in respect of the latter offence, the judge identified specifically the circumstances in which the issue arose, namely (pages 12T–13F) :

“What if an accused was party to a joint enterprise pursuant to which the deceased was unlawfully killed but the accused did not intend this or even really serious injury?  If so, she could still be guilty of an offence, namely manslaughter, on the basis that the unlawful act by which the deceased was unlawfully killed was one, such as assault, which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some physical harm resulting from it, even though not serious harm.  This is the type of manslaughter which lawyers call ‘ unlawful act manslaughter’.  It involves two things : (1) an unlawful killing as a result of an unlawful act by the accused or pursuant to a joint enterprise to which the accused was a party; and (2) the unlawful act being one, such as an assault, which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some physical harm resulting from it, even though not serious harm.”

69.  The judge went on to direct the jury in respect of the nature of a ‘joint enterprise’, identifying to the jury the requisite ingredients and reminding them that it was prosecution case that the applicants and Mo intended to kill the deceased. In particular, she directed the jury (page 14I–M) :

“Indeed, even if he or she did not intend that these acts be done, he or she would still be criminally liable for them if : (1) they were done in pursuance of the joint enterprise; (2) they were of a type which he or she foresaw as a possible incidence of a joint enterprise; and (3) he or she participated in the joint enterprise with such foresight.  In this case, as it happens, the prosecution’s case is that each accused intended that the deceased be killed.”

In particular, the judge directed the jury (page 14P–S) :

“If both accused and the other man were acting pursuant to a joint enterprise for the purpose of murdering the deceased and hiding her dead body afterwards, and their purpose was carried out, those accused would be guilty of murder; and the second accused would also be guilty of prevention of lawful burial…”

The out-of-court statements of the 2^nd applicant : regard to the whole

70.  Of the out-of-court statements made by the 1^st and 2^nd applicants, the judge directed the jury to (page 60R–T) :

“… take into account the whole of each out-of-court statement, not only the parts any counsel has specifically mentioned or which I will specifically mention.”

The judge repeated that injunction on several occasions and went on to direct the jury specifically (page 61P–R) :

“… you will have regard not only to the parts that are incriminating but also, whether or not I make specific reference to them, parts consisting of assertions, excuses and explanations that the maker may be able to rely on.”

The ambit of the inculpatory parts

71.  Earlier in her summing-up, the judge had directed the jury that admissions made by an accused in an out-of-court statement encompassed “… some fact or facts relied on by the prosecution and also an admission amounting to a full confession.” Of the admissions made by the 2^nd applicant in the her out-of-court statements, the judge said (page 18E–H) :

“… You are entitled-it is a matter for you-to treat as amounting to a case which, as a matter of circumstantial evidence and inferences, proves beyond reasonable doubt guilt on both counts.”

The judge repeated that direction, giving it specific focus, in her review of the inculpatory parts of the 2^nd applicant’s out-of-court statements (page 61E–F) :

“On the 2^nd accused’s out-of-court statements, there is, on each count, what you are entitled-it being a matter for you-to treat as a case proved beyond reasonable doubt by circumstantial evidence.”

A review of the exculpatory parts

72.  Of the exculpatory parts of the 2^nd applicant’s out-of-court statements, the judge said (page 73A–B) :

“… she says that she believed that the substance in the drink she gave the deceased was to induce the deceased to tell the truth about some valuables, and she denies being a party to the killing of the deceased.”

A review of the inculpatory parts

73.  However, thereafter once again the judge reviewed for the jury the inculpatory parts of the 2^nd applicant’s statements (page 73C–P) :

“The facts which the 2nd accused admits, are however, these: she had been told on the telephone by the 1st accused that if the deceased refused to disclose the whereabouts of the money, he would do her in.  She gave the deceased a drink with some special substance in it.  She was present when the deceased was killed.  She saw the deceased about to be put into the suitcase.  She got a taxi afterwards.  She went in that taxi to Stanley with the two men whom she witnessed killing the deceased, and with the suitcase.  She was there when the suitcase was put in the manhole.  She travelled back to Causeway Bay with these two men.  She took them somewhere for them to change their clothes.  She returned with them to the guesthouse.  She threw away things for them.  She went to dinner with them.  She bought new clothes.  She changed into them; and she threw away the clothes which she had been wearing.

… she knew that the two men were helping Pao.  She knew that Pao and the deceased had been cohabiting.  She herself, that is the 2nd accused, had a sexual relationship with Pao.  The deceased would guess that there was such a relationship between her, that is the 2nd accused, and Pao.  She, that is the 2nd accused, and the deceased had quarreled.”

What the judge described to the jury as “the facts which the 2^nd accused admits” was substantially a recitation of what the judge had told the jury earlier at page 61G–M.

The ambit of the duty of a judge to review the evidence in a summing-up

74.  There is no dispute that a trial judge is under no obligation in a summing-up to rehearse all the evidence or arguments, so long as the summing-up is fair and balanced. In R v Amado-Taylor (unreported, 27 March 2000 [2000] EWCA Crim. 25) in the context of allowing an appeal against conviction, in circumstances where the judge had inadequately summed up the defence case, Henry LJ, in the judgment of the Court of Appeal of England and Wales cited with approval the observation, in respect of the ambit of the duty of a judge in summing-up to a jury, of Lord Ackner in R v Spencer & Others [1986] 2 All ER 928 and 938c–d) :

“The overriding rule is that he must put the defence fairly and adequately.”

75.  Of the fact that the trial judge had declined to sum up the facts of the case to the jury at all, saying that they had the benefit of counsel’s speeches and would have a transcript of the appellant’s records of interview Henry LJ went on to say (paragraph 5) :

“… counsel’s speeches are no substitute for a judicial and impartial review of the facts from the trial judge who was responsible for ensuring that the defendant has a fair trial.”

Of the fact that the jury had a transcript of the appellant’s two lengthy records of interview, which were consistent with his testimony, he observed that (paragraph 7) :

“… would have helped the jury, but would not have gone all the way to meeting the judge’s responsibility of summing-up the case…”

76.  In R v Curtin (unreported, [1996] EWCA Crim. 529, 24 May 1996; [1996] Crim. LR 831) Rose LJ in the judgment of the Court of Appeal of England and Wales said (page 6) :

“In our judgment it is a judge’s duty, in summing-up to a jury, to give directions about the relevant law, to refer to the salient pieces of evidence, to identify and focus attention upon the issues, and in each of those respects to do so as succinctly as the case permits.  It follows that as part of this duty a judge must identify the defence.  The way in which he does so will necessarily depend on the circumstances of the particular case.  When the defendant has given evidence it will usually be desirable, though it may not always be necessary, to summarise his evidence.  When the defendant has answered questions in police interviews, as well as giving evidence, it may be appropriate for the judge to draw attention to consistencies or inconsistencies between interviews and the evidence.”

77.  Rose LJ went on to note, in circumstances where the appellant had not given evidence (page 6) :

“When, as here, the interviews were long, their terms had been rehearsed in evidence, reference to important parts had already no doubt been made more than once by counsel, and the jury had full transcripts of everything that had been said, it was not necessarily inappropriate in itself for the judge to deal with the interviews by specifically inviting the jury’s attention to relevant passages by reference to page numbers.  However, as we have said there were two questions of crucial significance raised in the course of the interviews, namely: the nature of the of the appellant’s intention in kicking when he did and whether or not he was a party to the joint enterprise at the final stage of Berry Hannon’s attack with a weapon, which may well have caused death.  In interview there were, as we have indicated, answers given bearing significantly on these two matters.  Accordingly, the learned judge should, in our view, have specifically referred to the relevant answers.”

The case of the 2^nd applicant : the closing speech of counsel

78.  As Mr McCoy pointed out, counsel for the 2^nd applicant addressed the jury at some length on the basis of the alternative defence adverted to in her exculpatory statements in her records of interview. He did so in what became ten pages of the transcript. In doing so, he identified passages in the second and third records of interview by reference to both page and counter number, which answers he read to the jury. The passages he read to the jury included not only her protestations of surprise at the fact that the 1^st applicant and Mo proceeded to strangle the deceased but also her statement to the police that she had been told by the 1^st applicant that, if the deceased did not disclose the whereabouts of Pao’s money, he would “Do her in”. Furthermore, counsel adverted specifically to the questions that arose from that statement that were put to the 2^nd applicant by the interviewing police officers, in particular as to what it was that she understood would happened to the deceased, including her statement at one point that she thought it possible that she might be killed. Similarly, he pointed out another answer in which she had said, “I did not expect that she would be killed.”

79.  In his concluding submission to the jury, in respect of this aspect of the evidence counsel for the 2^nd applicant said, “… even looking at them at face value, looking at those interviews and confessions made by the second accused at its highest all it does is make her part of a joint enterprise to make an appointment and to provide what she thought was a truth drug.” He went on to say :

“She was involved in doing unlawful acts in which case she is not guilty of murder because she had no intent to kill.  She is guilty only of manslaughter.”

80.  In our view, with respect, the judge failed to give a balanced and fair review of the 2^nd applicant’s alternative case in her summing-up. The passing reference to the exculpatory parts of the 2^nd applicant’s video records of interview, cited above at paragraph 72, did not adequately assist the jury in approaching the issues identified at length in the 2^nd applicant’s counsel’s closing speech. Indeed, it was so cursory as likely to denigrate those issues in the minds of the jury as being not worthy of consideration. By contrast, the judge twice reviewed at length a list of the inculpatory parts of the 2^nd applicant’s video recorded records of interview, which she directed the jury they were entitled to treat as proving the case on each count beyond reasonable doubt by circumstantial evidence.

81.  We are satisfied that in the circumstances of this case that, in order to give a balanced and fair summing-up, the judge was required to direct the jury’s attention to the passages in the records of interview that were relevant to the issue of the ambit and nature of the joint enterprise which, in her out-of-court statements, she admitted to being a party. Given that the relevance of the exculpatory out-of-court statements of the 2^nd applicant had only crystallised in the closing speech of counsel for the defence, in order to put the defence case fairly to the jury and to assist them appropriately, the judge ought to have read to the jury at least some of the exculpatory passages relied upon in support of her defence, and in particular to have explained to them the consequences, in terms of the available verdicts, were they to find that indeed the 1^st applicant and Mo had gone further than the plan agreed or contemplated by the 2^nd applicant.

82.  Furthermore, having directed the jury that there was available to them an alternative verdict to that of murder, namely that of manslaughter based on a dangerous and unlawful act, and having given the jury a single example of such an act, “such as an assault” the judge did not explain to the jury, by any reference to the evidence, the basis upon which they might return such a verdict.

Count 2 : preventing the lawful burial of the deceased

83.  Although Mr McCoy sought the quashing of the 2^nd applicant’s convictions in respect of both counts on the indictment, neither he nor Mr Zervos addressed any specific arguments to Count 2. In the circumstances of this case, that was an understandable approach. Of primary importance, was that the judge should have given the jury the correct directions and requisite assistance in relation to the alternative verdicts of murder and manslaughter, in particular in relation to the exculpatory assertions of the 2^nd applicant in her out-of-court statements. Their approach to a resolution of those issues gave context to their consideration of Count 2. Was she surprised and then frightened at the sudden killing of the deceased? Thereafter, did she act as she did out of fear or mental paralysis? Or, was she a party to joint enterprise to kill the deceased and dispose of the body? A balanced and fair review of the evidence was relevant to the jury on both counts.

THE PROVISO

84.  For the respondent, Mr Zervos submitted that, if the Court was against his primary arguments, in respect of the 2^nd applicant’s appeals against conviction, the court ought to apply the ‘proviso’ to section 83(1) of the Criminal Procedure Ordinance, Cap. 221. He pointed out that in Lam Chi Kwong v HKSAR (2008) 11 HKCFAR 623 the Court of Final Appeal had applied the proviso in an appeal from a conviction for murder, notwithstanding their determination that the jury had been misdirected on how they should deliberate. He contended that the case against the 2^nd applicant was overwhelming including, as it did, not only evidence of her movements captured on CCTV but also records of her frequent contact by telephone with the 1^st applicant. Further, he suggested that the judge’s failure to remind the jury of the exculpatory assertions made in the 2^nd applicant out-of-court statements was of benefit to the 2^nd applicant in that the inconsistencies between those assertions and her testimony were not highlighted before the jury. In the result, he submitted that the hypothetical ‘reasonable jury’ properly directed inevitably would have come to the same conclusion.

85.  For his part, Mr McCoy submitted that it was of no benefit to the 2^nd applicant, for the judge not to give the jury a balanced and fair review of her out-of-court statements, including exculpatory parts of her out-of-court statements that were relevant to the defence alternative to that articulated in her testimony.

CONCLUSION

86.  For the reasons set out above, in our judgment there is no merit in the proposed Grounds of Appeal advanced on behalf of the 1^st applicant in support of his application for leave to appeal against his conviction on the count of the murder of Ms Ip Sau Fun. Accordingly, his application is refused.

87.  For the reasons set out above, in our judgment there is merit in the Grounds of Appeal advanced on behalf of the 2^nd applicant in support of her application for leave to appeal against her convictions on the count of the murder of Ms Ip Sau Fun and that of preventing the lawful burial of her corpse. Accordingly, we grant her leave to appeal against those convictions and we treat the hearing of the application as the hearing of the appeal. The judge’s failure to remind the jury adequately of the exculpatory parts of the 2^nd applicant’s out-of-court statements and failure to explain to the jury how that evidence was relevant to the issue of what the 2^nd applicant foresaw as a possible incidence of the joint enterprise was a material non-direction; so too in relation to the failure to explain, in context, the circumstances in which a verdict of manslaughter was available. These were central matters and we do not think it appropriate to apply the proviso. In the result, we quash the 2^nd applicant’s convictions on both counts on the indictment.

CONSEQUENTIAL ORDERS

88.  From the outset, Mr McCoy informed the court that whilst he sought orders quashing the 2^nd applicant’s convictions he did not oppose the court ordering a re-trial nor did he seek an order that the 2^nd applicant be granted bail.

89.  In the result, we order that the 2^nd applicant be remanded in custody to stand trial on a fresh indictment; that the case be listed for a hearing for dates for re-trial to be fixed within 21 days and that the 2^nd applicant be re-arraigned as soon as practicable thereafter.