HKSAR v. LEE WAN KONG AND OTHERS

CACC85/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 85 OF 2011

(ON APPEAL FROM HCCC 120 OF 2010)

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J U D G M E N T

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

1. The applicants seek leave to appeal against their convictions on 10 February 2010 after a trial before Wright J and jury of a single count of the murder of Lee Tai Lung (“Lee”). The erstwhile 4^th defendant at trial was acquitted by the jury of that count of murder and the alternative 2^nd count, which the 4^th defendant alone faced, that he had conspired with the applicants and others to wound Lee with intent to do him grievous bodily harm. Similarly, the erstwhile 5^th defendant at trial was acquitted by the jury of the 3^rd count on the indictment, which he faced alone, namely that he had assisted the 2^nd and 3^rd applicants to leave Hong Kong, with intent to impede their apprehension or prosecution, Lee having been murdered by them, and he knowing or believing that they had murdered him.

The Indictment

2. The count of murder on the indictment averred that the applicants, together with other persons, murdered Lee in Hong Kong on 4 August 2009.

The killing of Lee

3. At about 4 a.m. on 4 August 2009 Lee, who was referred to by witnesses at the trial as ‘Tai Lung’, disembarked from the driver’s seat of a Mercedes Benz saloon car, which he had manoeuvred and parked next to the kerbside in the entrance area of the Shangri-La Hotel in Mody Road in Tsim Sha Tsui.  Lee disembarked from the car only after Man Pui Ying had himself disembarked from the front passenger seat.  Two female passengers disembarked from each of the rear doors to the car.  Then, after Lee had closed the front passenger door, a seven-seater van accelerated at speed towards where Lee was standing next to the Mercedes Benz and manoeuvred so that the front nearside of the seven-seater van collided with Lee throwing him into the air.  As a result, he landed on the ground some distance in front of the parked Mercedes-Benz.

4. The seven-seater van stopped and three men alighted and ran back to where Lee lay motionless, face down on the ground.  Man Pui Ying, who had begun running to where the seven-seater van had stopped, abandoned his pursuit of the vehicle and ran off in another direction.  When the three men reached where Lee lay on the ground, each of them delivered blows with large knives to his motionless body.  Then, a saloon car drove up and came to a halt next to where Lee lay and two men disembarked, one from the driver’s seat and the other from the front passenger seat.  Having looked in the direction of the prone body of Lee for a short time they resumed their seats in the saloon car, which drove off.  All the events described above were captured on various CCTV cameras attached to the walls of the Shangri-La Hotel and focused on the forecourt area.  The relevant film lasted 61 seconds.

5. Although Lee was alive when ambulancemen attended him at 04:08 on 4 August 2009 and when he was admitted to Queen Elizabeth Hospital shortly afterwards, he was certified as dead shortly before 6 a.m. that day.  The cause of death was either the fracture to his skull and related brain damage, caused when Lee landed back on the ground having been struck by the seven-seater car, or from the loss of blood caused by the severing of arteries and other injuries when he was chopped whilst lying on the ground.

THE PROSECUTION CASE

The roles of the parties

6. The prosecution case was that the applicants, together with others, were parties to a joint enterprise in which the parties intended to kill or to cause really serious bodily harm to Lee.  Each of the parties to that joint enterprise had different roles to perform: the 2^nd applicant was the driver of the seven-seater van; the 3^rd applicant, together with two other occupants of the seven-seater van, had attacked Lee with large knives while he lay on the ground; the 1^st applicant was the driver of a Mitsubishi Gallant saloon car in which, amongst others, the prosecution witnesses Lam Ka Chun (“Lam”) and Yeung Kin Wa (“Yeung”) were passengers, carrying out their roles as lookouts or, if necessary, to lend backup support.  The 4^th applicant and Man San Chung were passengers in the rear seat of a Honda saloon car.

The three vehicles

7. It was an admitted fact that the three vehicles had been stolen from places where they were parked: the Honda motor car between 7 a.m. on 30 July and 00:30 on 31 July 2009; the Mitsubishi motor car between 22:30 and 13:30 on 2 August 2009 and the seven-seater van between midnight on 2 August and 16:00 on 3 August 2009.  All three vehicles were found burnt-out in Tai Po on 4 August 2009, the Honda motor car and the seven-seater van being discovered in that condition at 04:30 that day.

Lam and Yeung

8. Crucial evidence in support of the prosecution case came from two accomplices, Lam and Yeung, who each gave evidence under an immunity from prosecution.  They had been parties to the joint enterprise to kill or cause really serious bodily harm to Lee and had been passengers in the Mitsubishi motor car, which was one of the three cars used by the killers at the scene of the killing.  Their role was to act as lookouts and, if necessary as backup, to the others.  Between them they said that they had witnessed Lee being struck by the seven-seater van and the subsequent attack on Lee by the three knife-wielding assailants.

Triad societies

9. Lam and Yeung explained their participation in the enterprise on the basis that they, and all the other parties to the joint enterprise, were members of the Wo Sing Wo Triad Society.  Lee was a member of the Sun Yee On Triad Society and had been attacked in revenge for an earlier assault by him on another member of the Wo Sing Wo Triad Society, namely Man San Chung.  It was an admitted fact that the latter’s true name was Leung Kwok Chung.  Lam and Yeung said that Man San Chung and the 4^th defendant at trial, namely Yeung Man Ting, were ‘bosses’ of a gambling Den at which they worked in Tung Chau Street Park.  For their part, they were employed as ‘lookouts’ to guard against raids by the police.  They had come to know the three applicants either as gamblers at the Den, ‘bosses’ or fellow ‘lookouts’.  Lam said that the attack on Man San Chung had occurred about four years before August 2009.  He understood that the assailant was Lee and, having received news of the injuries to Man San Chung, he and others had gone looking for Lee.  They were unsuccessful.

10. Man Pui Ying testified that Lee was his ‘Big Brother’ and they were both members of the Sun Yee On Triad Society.  On 23 July 2006, Lee and others had come to his aid when he was attacked by members of the Wo Shing Wo Triad Society while he was having a drink in a bar.  He saw Lee strike the head of Man San Chung with a bottle, cutting his face and neck.  Thereafter, Lee was concerned about his personal security and was normally accompanied by a group of men.

3 and 4 August 2009

Tung Chau Street Park

11. Lam said that in the early hours of the morning of 4 August 2009 he had gone to Tung Chau Park at the request by telephone of Ng Tong.  He understood that there was to be fighting.  There, he met Yeung and others.  Yeung and he boarded the Mitsubishi motor car.

12. For his part, Yeung said that the 3^rd applicant had telephoned him during the afternoon of 3 August 2009 and asked him to ‘chop’ someone that night.  He declined, but eventually agreed to act as a lookout.  As agreed, he went to Tung Chau Street Park at about midnight.  Yeung said that the 2^nd applicant drove away in a seven-seater van in which the 3^rd applicant and others were passengers.

Lok Kwan Street Park

13. Yeung and Lam travelled in the Mitsubishi motor car to Lok Kwan Street Park where they met up with the seven-seater van.  Then, they were joined by the Honda motor car, in which the 4^th applicant was seated in the front passenger seat and Man San Chung one of two passengers in the rear seat.  What had happened at Lok Kwan Street Park was controversial between Lam and Yeung.  The convoy of three vehicles moved off, first to Chinachem building and then to the vicinity of the Shangri-La Hotel.

The Shangri-La Hotel

14. Yeung said that he saw the seven-seater van enter the forecourt of the Shangri-La Hotel and strike Lee.  He and Lam were passengers in the Mitsubishi saloon car, which he said was moving at walking pace in Mody Road immediately outside the forecourt of the Shangri-La Hotel.  He saw the 2^nd applicant at the driving wheel of the seven-seater van as it stopped at the exit of the forecourt.  Then, he saw three men chopping Lee, as he lay on the ground in the forecourt of the Shangri-La Hotel.  He identified all three of them as men that he had seen in the seven-seater van earlier.  One of them was the 3^rd applicant. Then, the three men returned to the seven-seater van, which left the forecourt.

15. For his part, Lam said that the Mitsubishi motor car was stationary in a slip-road adjacent to the forecourt of the Shangri-La Hotel when he had heard squealing tires and had seen the seven-seater enter the forecourt.  He did not see Lee’s Mercedes-Benz entering the forecourt, nor did he see him being struck by the seven-seater van.  As a lookout, he was looking elsewhere.  Lam said that he saw the seven-seater van come to a halt at the exit of the forecourt.  Then, he saw a person lying on the ground in the forecourt.  He saw three persons, whom he recognized, running towards the prone figure holding what looked like knives. One of them was the 3^rd applicant.  He did not see what they did.  The three men ran back to the van as a car drove into the forecourt and stopped and two men alighted.  Then, the Mitsubishi motor car, in which he was a passenger, was driven away from the scene.

Subsequent events

16. Yeung said that following day he had met the 3^rd applicant at Tung Chau Street Park and had been told by him that he had chopped Lee.  Further, he and others who were present were advised by the 3^rd applicant to be careful because Lee’s people would be looking for them.

17. It was an admitted fact that Yeung identified the 1^st, 2^nd and 3^rd applicants at identification parades held on 15 and 16 September 2009.  Similarly, it was an admitted fact that Lam identified the 1^st applicant at an identification parade held on 22 December 2009.

Li Hon Kit

Passages in/out of Hong Kong by sampan: 1 and 4 August 2009

18. Li Hon Kit testified that, by arrangement with a friend on the Mainland, on 1 August 2009 he had transported four men on his sampan from Shekou in the Mainland to Sham Tseng Pier in Hong Kong.  It was agreed that each man would pay $5,000-$6,000 for what was to be a return journey.  He said that he had made the inbound journey to Hong Kong between about 8 and 11 p.m. on 1 August 2009.  It was an admitted fact that radar traces showed a vessel leaving Dachan Island in the Mainland at 23:18 and arriving at Sham Tseng Pier at 23:46 on 1 August 2009.

19. Li Hon Kit said that on the night of 4 August 2009 he had transported four men on his sampan from Sham Tseng Pier to Shekou.  The weather was very bad.  There was a typhoon.  He said that it seemed like they were the same four men that he had brought to Hong Kong on 1 August 2009.  At his request, Li Yuen Ho, the erstwhile 5^th defendant, accompanied him in the journey to Sham Tseng Pier, where Li Hon Yuen disembarked and the four men embarked on his sampan.  He had asked Li Yuen Ho to accompany them merely to add ballast to the boat, to balance it in rough weather.  He had received payment of a total of $36,000 from one of his four passengers for the two journeys, either at the commencement of the return voyage or on arrival in Shekou.

20. On 16 September 2009, Li Hon Kit identified the 2^nd applicant at an identification parade.  In evidence-in-chief, he said that he had done so because the 2^nd applicant looked very much like one of the passengers that he had conveyed on his sampan on those voyages on both 1 and 4 August 2009.  However, he said that he had not spoken to them and he had only seen them for a split second, as they were embarking and disembarking from the sampan.  In cross-examination, he accepted that on each occasion it had been dark at the piers.  He agreed that he could not be sure of his identification of the 2^nd applicant in the identity parade was in fact of one of the persons whom he had conveyed on his sampan in those voyages.

Oral statements made by the 2^nd applicant after his arrest

21. Following his arrest on 9 September 2009, and after he had been transferred from one vehicle to another, and whilst Detective Sergeant 50054 was explaining the reason for his arrest, namely that it involved the killing of Lee outside the Shangri-La Hotel on 4 August 2009 the 2^nd applicant said : 

“It is nothing to do with me. That was done by Man San Chung.”

22. After the officer had administered the words of caution, the 2^nd applicant replied :

“ It’s nothing to do with me, Man San Chung who handled the job. I was only responsible for stealing and driving a vehicle. I can’t tell anything further as it may result in death.”

THE DEFENCE CASE

23. None of the applicants, or their former co-defendants at trial, gave or called evidence in the Defence Case.  In cross examination, issue was taken on behalf of the applicants with the evidence of Lam and Yeung as it impacted upon each applicant.  However, broadly speaking it was contended on behalf of all the applicants that Lam and Yeung were unreliable and incredible witnesses whose testimony could not be accepted.  In particular, it was suggested that they were motivated to give false testimony, given that they had been granted immunity from prosecution in respect of the offence of murder.

24. Specifically, on behalf of the 1^st applicant it was suggested that Lam and Yeung did not know the 1^st applicant and that he was not the driver of the Mitsubishi motor car in the early hours of 4 August 2009.  Similarly, it was suggested on behalf of the 2^nd applicant that he was not the driver of the seven-seater van in the early hours of 4 August 2009.  It was suggested to Detective Sergeant 50054, which he denied, that the 2^nd applicant had not made the oral admission that the officer had recorded in his notebook, but which the 2^nd applicant had not signed.  On behalf of the 3^rd applicant it was suggested that he was not one of the knife-wielding attackers of Li as he lay prone on the forecourt of the Shangri-La Hotel.  It was contended that both Lam and Yeung had personal grudges against the 3^rd applicant.  In particular, it was suggested that the 3^rd applicant had not made any oral admission to Yeung as to participation in the attack on Lee.  Lam and Yeung rejected those suggestions and remained adamant in their testimony that the applicants were participants in the murder of Lee.

GROUND OF APPEAL AGAINST CONVICTION

Ground 1: the judge’s flawed directions in respect of the accomplices

25. It was submitted that, whilst the judge had given the jury some directions in his summing up as to their approach to the accomplice witnesses, Lam and Yeung, those directions were flawed in that they failed to emphasise sufficiently the ‘danger’ of the jury relying on their testimony in the absence of independent supporting evidence.

Grounds 2 and 3: the wrongful admission and treatment of evidence in respect of Triad societies

26. By grounds 2 and 3 it was contended that the judge had erred in admitting evidence in respect of the membership of Triad societies of various parties, including the applicants.  To have done so, was a material irregularity.

Ground 4: aspects of an identification evidence

As to the 1^st applicant

27. Of the evidence of Yeung, that the 1^st applicant was the driver of the seven-seater van in the early hours of 4 September 2009, it was submitted that, given that Yeung had identified another person as the driver in records of interview conducted of Yeung by the police following his arrest, the judge’s directions in respect of that evidence were inadequate.

As to the 2^nd applicant

28. It was submitted that the judge had erred in admitting the evidence of Li Hon Kit of his purported identification of the 2^nd applicant as a passenger on his sampan on 1 and 4 August 2009.  Further, that after the evidence had been received by the jury, in light of its weakness the judge ought to have ordered it withdrawn from them.  Alternatively, the judge ought to have directed the jury to disregard the evidence unless they found it supported by independent evidence.

As to the 3^rd applicant

29. It was contended on behalf of the 3^rd applicant that the judge had erred in permitting Yeung to view and inspect still frames of the CCTV video film taken on the surveillance cameras of the forecourt of the Shangri-La Hotel in giving his testimony of his identification of the 3^rd applicant and the role played by him in the attack with knives on Li as he lay on the ground.  Further, that the judge did not direct the jury sufficiently that the view afforded of the attackers of Lee as he lay prone on the ground was not that enjoyed by Yeung at the time of the attack itself, not being obscured or obstructed in any way as had been the view of Yeung.

Ground 5: the words attributed to the 2^nd applicant during and after caution

30. By ground 5, which ground counsel for the 2^nd applicant was permitted to add to his grounds of appeal against conviction at the end of the first day of the hearing, it was contended that the judge had failed to give the jury adequate directions of how to approach the contested oral admission of the 2^nd applicant during and after the administration of the words of caution.  It was submitted, that the judge ought to have directed the jury that the words were equivocal and that they ought to place no reliance on what the 2^nd applicant had said, unless they were satisfied that it was an admission to participation in an offence related to the murder or was an admission that the 2^nd applicant was in Hong Kong at the material time.

A CONSIDERATION OF THE SUBMISSIONS

Ground 1: the judge’s directions in respect of the accomplices

31. Mr Bruce was correct to concede that the judge did identify for the jury in his directions the material matters that arose for their consideration in the evidence of the accomplices, in particular Lam and Yeung.  The gravamen of his complaint was that the judge had not directed the jury that it was ‘dangerous’ for them to rely on their evidence in the absence of independent supporting evidence.

The judge’s directions as to the approach to the evidence of Lam and Yeung

32. At an early stage in his directions to the jury, the judge gave the following direction (page 10 J-M) :

“ The prosecution relies solely on the evidence of Lam and Yeung to identify the 1^st to 4^th accused as being involved in the attack on Tai Lung and the role which each played. Your assessment of the credibility and reliability of Lam and Yeung as witnesses is therefore fundamental to your decision. It is a task which you must approach with particular care.” [Italics added.]

33. In the sequence of the issues addressed in the summing-up, the judge immediately moved on to identify the aspects of their evidence which was relevant to the need to approach the testimony of Lam and Yeung with ‘particular care’.

Lies and inconsistencies

34. Of the evidence of the assertions made by Lam and Yeung out-of-court prior to trial, the judge said (page 10 M-O) :

“ You will likely be satisfied that Lam and Yeung each admitted that he had previously made statements to the police soon after their respective arrests, in which he lied and which conflicted with his evidence.”

Later, he reminded the jury (page 11 J-K) :

“ each of Lam and Yeung admitted that previous statements he made are inconsistent with his evidence in this court in a great number of respects.”

Of inconsistencies between their respective testimony, the judge said (page 11 K-N) :

“ You are likely also to conclude that there are striking differences between the evidence each gave in court as to the events on the night of the killing. You may also conclude, in respect of each of them, that there are contradictions between what one may have said in his evidence-in-chief andwhat he said later when being cross-examined.” [Italics added.]

35. In the context of the judge’s standard general direction that the jury may accept or reject all or some of the evidence of a witness, the judge went on to direct the jury that, in circumstances where they rejected a portion of the evidence of a witness (page 14 P-T) :

“ … obviously, you would then approach the rest of that evidence with caution and satisfy yourselves that it is reliable. You may decide that, for example, Lam was telling you the truth in regard to one matter but not in regard to another. You would not be obliged to reject all of his evidence but could rely upon that which you were satisfied was credible and reliable. Similarly with Yeung and with each of the other witnesses whom you have heard. [Italics added.]

It may be, in the context of this case, that you take the view that the differences between the evidence given by Lam and that given by Yeung are so great, or that there are so few matters in common in their evidence that you are unable to accept the evidence of both of them.  If you were to come to that conclusion, it would be open to you, if you are so minded to accept the evidence of one of them and to rely on that, but in order to do that, you would have to be satisfied that the evidence upon which you chose to rely is both credible and reliable.”

Immunity and motive

36. The judge reminded the jury that Lam and Yeung gave evidence under a conditional immunity from prosecution, having been arrested for the offence of murder: (page 12 G-P)

“ …each told you that he had participated in the events which led to Tai Lung’s death, in the sense that he was acting as a lookout or possible back up at the time of the assault. If you were to accept that evidence, then he would be liable to be charged with murder. The immunity is an undertaking by the Secretary for Justice not to prosecute the witness for the offence of murder provided he gives true evidence in this trial before you.

The prosecution asserts that that provides a powerful motive for him to tell the truth.  The defence asserts just the opposite, it provides him with a powerful motive to lie, then he has his own interest to protect by seeking, falsely, to implicate other persons.  The fact that they tell you that they participated in these events and the fact that they are testifying under immunity with the hope of avoiding prosecution are important features which you should take into account when assessing their credibility and reliability.”

Identification evidence

37. In respect of the identification evidence, the judge directed the jury (page 12 T-13 A) :

“ This is a trial where the case against the accused depends wholly on the correctness (of) one or more identifications or recognitions of the various accused which the defence allege to be wrong, even though the two witnesses, Lam and Yeung, testified that they recognised the various accused who previously were known to them.”

Accordingly, the judge directed the jury in standard terms, namely (page 13 G-I) :

“ …I must warn you of the special need for caution before convicting any accused in reliance on the evidence of identification.”

‘Striking differences’: the testimony of Lam and Yeung

38. Of the many differences in the testimony of Lam and Yeung, the judge suggested to the jury that there were two most “striking differences” (page 24 G-K) :

“ ...first, what happened or did not happen, at Lok Kwan Street Park and, secondly the positions of and movements of the Mitsubishi at the time of the killing of Tai Lung.”

(i)  Lok Kwan Park

39. The judge reminded the jury that whilst Lam and Yeung had each testified that they had arrived at Lok Kwan Park together in the Mitsubishi motor car, having travelled together from Tung Chau Street Park, and that the seven-seater van and the Honda motor car were also present, they gave markedly contrasting accounts of what happened at Lok Kwan Park.  Lam said (page 25 R-26 N) that everyone had disembarked from the vehicle, where they remained for about two hours.  More particularly, he said that the 2^nd applicant and Man Sam Chung had given instructions to Ng Tong and So Kai Man not to chop the vital parts of the prospective victim.  By contrast, Yeung had said that on arrival at Lok Kwan Park no one had disembarked from the vehicles and, in particular, no meeting took place between the men (page 38 J and 73 R).

(i) the position of the Mitsubishi motor car at the time of the attack

40. Similarly, the judge reminded the jury of the differences in the testimony of Lam and Yeung in respect of the position of the Mitsubishi motor car at the time each of them said that they witnessed aspects of the attack on Lee in the forecourt of the Shangri-La Hotel, Lam said (page 27 C-D) that the Mitsubishi motor car had halted at a slip road next to the Shangri-La Hotel.  By contrast, Yeung said (39 B-C) that the Mitsubishi motor car was travelling, “at a walking pace in the safety island outside the Shangri-La Hotel”.

41. After reviewing the evidence at considerable length, the judge gave the jury (page 66 N- 69 M) what he said was a very short summary of what he had directed them in respect of their approach to the evidence and the evidence relevant to each accused.  Having reminded the jury that Lam and Yeung had given evidence under immunity from prosecution, and that the jury might conclude that they had their own interests to serve, the judge directed the jury (page 67 H-J) :

“ You will no doubt conclude that they have contradicted one another in a number of aspects, some of them material, although you may conclude that, in other respects, each has not only been consistent in what he has said, that there has been a general consistency in the evidence of each of them.”

42. Finally, the judge reminded the jury of his earlier direction that, if they were to accept one of them to be credible and reliable in respect of part of his evidence and not in respect of all of his evidence, they may accept and rely on that part of his evidence about which they were satisfied, (page 67 U- 68 A) :

“ … but if you do so, you must approach that part of his evidence with particular caution.” [Italics added.]

The Law

43. Mr Bruce acknowledged at the outset that in The Queen v Chu Ip Pui [1997] HKLRD this court had approved in terms the judgment of the Court of Appeal of England and Wales delivered by Lord Taylor CJ in R v Makanjuola [1995] 2 Cr. App. R. 469, in which the consequences of the abrogation of the corroboration direction requirement was addressed.  Lord Taylor CJ said at 472D :

“ Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness’s evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness’s evidence. We stress that these observations are merely illustrative of some, not all, of the factors which judges may take into account in measuring where a witness stands on the scale of reliability and what response they should make at that level in their directions to the jury. We also stress that judges are not required to conform to any formula and this Court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness’s evidence as well as its content.”

44. In the addressing the issue in Chu Ip Pui, Mortimer JA said (page 552 D)

“ Accomplices do not by this reform suddenly become more credible or less dangerous as witnesses, but the approach is now left to the discretion of the judge. It is necessary that such discretion is unfettered so that he can achieve a fair trial.”

Conclusion

45. As noted earlier, no issue was taken that the judge failed to identify the frailties and imperfections of the evidence of Lam and Yeung that were relevant to jury’s consideration of their credibility and reliability as witnesses.  Clearly, he did so at considerable length, providing the jury with a succinct summary of the salient features at the end of that summing up.

46. We are satisfied that in directing the jury to approach the evidence of Lam and Yeung with “particular care” (page 10L) and directing them that, if they were to reject some of the evidence of one of them, before they were to rely on that witness’s other evidence they were to approach his evidence with “caution”, so that they could satisfy themselves that “it is reliable”, the judge brought home to the jury appropriately the correct approach to their evidence.  Certainly, the warnings that he gave to the jury lay firmly within his discretion.  That discretion did not miscarry.  It was not necessary for the judge to direct the jury that it was “dangerous” to rely on the evidence of Lam and Yeung, in the absence of independent evidence in support.

Grounds 2 and 3: the evidence in respect of Triad societies

Prosecution Opening: objection on behalf of the 4^th defendant

47. As Mr Tam pointed out for the respondent, although objection was taken during and after the prosecution opening, in the early stages of the evidence of Lam, by counsel on behalf of the 4^th applicant to the admission of evidence that he was a member of the Wo Shing Wo Triad Society, none of the applicants made any objection to the general evidence of the involvement of persons from two different Triad societies, or the specific allegation that all the applicants were members of a Triad Society, which the prosecution indicated that it proposed to adduce in evidence.  The prosecution said that the killing of Lee, a senior member of the Sun Yee On Triad Society, was revenge by Man San Chung, a senior member of the Wo Shing Wo Triad Society for injuries inflicted on him by Lee years earlier.  Man San Chung ran a gambling Den frequented by the applicants, the witnesses Lam and Yeung and the erstwhile 4^th Defendant at trial.  The latter was one of the bosses of that Triad Society, whereas the former were junior members of that Triad Society.

Ruling

48. In his reasons for ruling against the objection, in respect of evidence being led that the 4^th applicant was a member of a Triad Society, the judge said that he distinguished the decisions of the Court of Appeal and the Privy Council in the same case, but reported in the Privy Council as R v Law Shing Huen [1989] 1 HKLR 116, from the facts obtaining in the case before him.  Of Law, he said :

“…the murder was committed by two friends of the appellant who also happen to be members of the same Triad Society as he: there was no suggestion that the society had in an anyway organised the commission of the offence or was involved in it or that the victim was even a member of any Triad society, rather he was simply the new boyfriend of the appellant’s previous girlfriends.”

By contrast, he said of the case which he and the jury were trying: (page 575) :

“ There is direct and unchallenged evidence from which it would be open to the jury to conclude that the killing of Lee was a revenge killing organised by members of one society upon a member of another. In these circumstances the evidence of the membership of the respective societies is relevant.”

 Later, he added :

“ To exclude the evidence on the basis of the relationship between the various persons and the background against which these events occurred by omitting any reference to Triad societies would be to require the jury to arrive at his decision on an artificial basis.”

Finally, he said that he accepted the references to a Triad Society, “likely carry a stigma which may be prejudicial to accused.”  He indicated that he proposed to give appropriate directions to the jury to cure that prejudice.

Admissibility

49. We are satisfied that the judge was correct to determine, first that to exclude evidence of the relationship between the persons involved in the attack and Lee himself of any reference to Triad societies would be to proceed on an artificial basis and to deprive the jury of the true context of events and, second that a stigma attached to Triad Society membership and appropriate directions to the jury to neutralise such stigma were required.  That evidence was highly relevant and probative, albeit that leading it before the jury exposed the applicants to a degree of prejudice.  The probative value greatly outweighed the prejudicial value.

50. The fact that the three counsel representing the applicants, all of whom are highly experienced practitioners of criminal law, made no objection to the evidence being led at trial is itself significant.  The evidence was obviously admissible, but required appropriate directions to the jury dealing with issues of irrelevant prejudice that might flow from the evidence being led.

51. Clearly, the motive for the attack on Lee was the long-standing desire for revenge by Man San Chung for the injuries inflicted on him by Lee.  The fact that Lee was a senior member of the Sun Yee On Triad Society, whereas Man San Chung was a senior member of the Wo Shing Wo Triad Society was relevant evidence not only to the fact that revenge was pursued over such a period of time but also to the circumstances in which Lam and Yeung said that they readily agreed to be participants in the attack.  Such considerations were also relevant to the participation of the applicants and others.  Lam said that shortly after the attack on Man San Chung he and others had responded to a telephone call and had gone out looking for Lee, albeit unsuccessfully (page 8 R-S).  Lam responded to a call shortly after midnight on 3/4 August 2009 from Ng Tong, his ‘Big Brother’, assuming correctly that it was a call to arms (T. 112).  At the outset, he did so without knowing anything of the nature of the plan.  Yeung responded to a request by telephone on the evening of 3 August 2009 from the 3^rd applicant, whom he had said was a more senior member of the Triad Society than he was and, although he declined to act as a ‘knifeman’, agreed to be a lookout in the attack.  Yeung said that he had only come to know the target of the proposed attack at a late stage in the journey of the three vehicle convoy (T. 258).

52. Lam and Yeung each described their connection with the gambling Den at Tung Chau Street Park, at which place they encountered others, including the applicants, who frequented the Den.  Of those persons, the judge reminded the jury that Yeung had said (page 36 K), “no one at the gambling den was not a triad, it being a triad-run organization.”

Directions in respect of prejudice

53. At an early stage in his directions to the jury, the judge gave the jury specific directions as to the limit of the use that they might make of a finding that any of the accused was or were members of a Triad Society (page 9 P-T) :

“ In addition, it is necessary also that you understand that even if you were to conclude, as a matter of fact, that any or all of the accused was or were members of a triad society, or that you have heard evidence that the gambling establishments in Tung Chau Street Park was an illegal operation, this does not mean, simply by itself, that they are guilty of the offence of murder or any other offence on indictment. It would not prove that any of them is predisposed toward violent conduct.”

54. Immediately before he gave that direction, the judge had reminded the jury that it had been Yeung’s evidence that he had gone out fighting with members of the Wo Shing Wo Triad Society before he ever joined that Triad Society.  Of which, he said (page 9 H-I) :

“ which you may think shows that non-triad members may participate in activities in which triad members are also involved.”

55. Further, the judge gave similar directions as to the use to be made of the evidence of Detective Sergeant 50054, given in the context of his explanation for how the 2^nd applicant had been dealt with after his arrest in Tai Kok Tsui, that Man San Chung was known to him as a well-known, violent figure in the Wo Shing Wo Triad Society who occupied Tai Kok Tsui (page 9 K-O) :

“ The only purpose for which you may use that evidence is to enable you to decide on his state of mind at the time he arrested the 2^nd accused in so far as it related to no caution being administered to the 2^nd accused immediately after his arrest. It is not proof that any of the persons on trial was a member of Wo Shing Wo.”

He repeated that direction, in effect, later in his summing up, (page 61 E-N) adding :

“ It is not a matter which you are to take into account if you decide it to be necessary to determine whether any of the people in these proceedings were members of a triad society.”

Ground 4: aspects of identification evidence

Yeung’s identification of the 1^st applicant as the driver of the Mitsubishi motor car

56. Mr Bruce accepted that the judge drew the jury’s attention to the evidence of Yeung that, whilst he identified the 1^st applicant as the driver of the Mitsubishi motor car in his testimony, in video recorded records of interview conducted of him by the police and in a statement given to the police he asserted that the driver had been someone called ‘Ah So’.  Nevertheless, complaint is made that the judge did not assist the jury by directing them as to the use to be made of such an important inconsistency.

57. In his summing up the judge dealt with the developing testimony of Yeung in respect of this issue in chronological sequence.  Thus, in cross-examination, on behalf of the 1^st applicant the jury was reminded that Yeung had said (page 40 S) that it was not true that Ah So was the driver of the Mitsubishi motor car, “he had misremembered that.”  However, in describing Yeung’s testimony in cross-examination on behalf of the 2^nd applicant the judge reminded the jury that Yeung had accepted that, “he had lied about the presence of persons in the vehicles”.  Further, that Yeung accepted that in doing so he had done so intending to mislead the police (page 42 C-D).  In cross-examination on behalf of the 2^nd applicant, Yeung accepted as much in respect of his naming of ‘Ah So’ as the driver of the Mitsubishi motor car (T. 308 M).

58. Clearly, the judge had laid before the jury the developing tapestry of Yeung’s evidence as to his stipulation in out-of-court assertions that ‘Ah So’ was the driver of the Mitsubishi motor car: first, he explained that he had misremembered; then, he accepted that he lied; and finally, he said that he had lied in order to mislead the police.  Obviously, the jury was to examine that testimony in the context of the judge’s earlier direction in respect of the lies of Lam and Yeung (page 10 R-S) :

“ Each of the witnesses says that despite his earlier lies, he has now told you the truth. That is a matter for you to determine…”

(ii) The evidence of Li Hon Kit of his identification of the 2^nd applicant as a passenger on his sampan

59. Li Hon Kit was another witness who gave evidence under an immunity from prosecution.  Although Mr Bruce submitted in his written submissions that the evidence of the identification of the 2^nd applicant by Li Hon Kit ought never to have been admitted into evidence, he accepted that in the hearing no objection had been taking to the admission of the evidence at the time it was led.  Indeed, the identification of the 2^nd applicant by Li Hon Kit at an identification parade was the subject of an admitted fact.

Objection on behalf of the 2^nd applicant to the evidence being left to the jury

60. By contrast, in support of his submission that the evidence ought to have been withdrawn, in consequence of the evidence actually led at trial from Li Hon Kit, Mr Bruce pointed to the submissions made on behalf of the 2^nd applicant by his counsel, Mr McNamara in discussions held between the judge and counsel at the conclusion of evidence and prior to speeches.  There, it had been submitted by Mr McNamara of the identification, “it is not a positive identification and it shouldn’t go to the jury.”  He added that the jury should be told to ignore it.  The judge observed that it was an admitted fact that the 2^nd applicant had been identified on an identification parade by Li Hon Kit.  Of that, the judge said, “I can’t tell them to ignore the fact that he identified him on an identification parade.”

61. Counsel for the respondent invited the judge to leave the evidence of identification of the 2^nd applicant by Li Hon Kit to the jury, it being a matter of weight for them.

62. In the face of Mr McNamara’s suggestion that the judge direct the jury that, since Li Hon Kit had said that he was not sure of that identification, they were to ignore the evidence in the case of the 2^nd applicant the judge said (618 Q), “Well I can’t because it’s an admitted (fact) and therefore a proven fact that there was an identification.”

63. In the result, the judge determined (page 620 D) :

“ …it is a matter that should be before the jury but it is going to have to to (be) very very heavily qualified, the question of weight for that.”

The judge’s directions

64. In the summing-up, the judge reminded the jury of the admitted fact of the identification of the 2^nd applicant by Li Hon Kit (page 51 A-G).  Further, that it was also an admitted fact that the 2^nd applicant left Hong Kong through Lo Wu at 08:53 (p.m.) on 1 August and returned to Hong Kong at 10:40 p.m. on 4 August 2009.  It was in that context, that the judge invited the jury to have regard to the evidence of Li Hon Kit that he had carried four men on his sampan into and out of Hong Kong respectively on those dates.  Li Hon Kit had judged them to be the same four men.

65. Of the identification of the 2^nd applicant, the judge reminded the jury that Li Hon Kit had said that he had pointed him out on the identification parade because, “he looked very much like one person he had come across as his customer on 1 and 4 August” (page 51 T).  Then, he reminded the jury of the circumstances of the identification that Li Hon Kit accepted had obtained namely, that it was dark; that he had not spoken to the men; that he observed the four men only briefly when they were on the pier; and that he could only “roughly see their appearances”.  Finally, the jury was reminded that Li Hon Kit had said that he was not “sure” of his identification of the 2^nd applicant.

66. Of their approach to that evidence, the judge directed them to do so with caution, repeating his earlier direction of the “danger of even an honest witness being mistaken” (page 52 M-N).  He added :

“ You must take particular care in deciding how much weight, if any at all, you should attach to Li’s evidence on this identification. If you are not satisfied by his evidence that he has correctly identified the 2^nd accused as one of the passengers on the boat, then disregard it.”

67. At the end of the summing up, in his summary of the evidence, “…which you are likely to wish to take into account in respect of each accused” (page 66 O) in addressing the case of the 2^nd applicant, the judge adverted to the evidence of Li Hon Kit’s identification of the 2^nd applicant again (page 68 H-J) :

“ Depending on the weight, if any, which you find you are able to attach to the identification by Li Hon Kit at the identification parade, you may find that that is a factor which you are able to take into account.”

The judge’s directions in respect of the case against the 5^th defendant

68. The evidence that Li Hon Kit had picked out the 2^nd applicant at an identification parade and his testimony of why he had done so was evidence referred to by the judge in his directions to them in respect of the case of the erstwhile 5^th defendant at trial.  The judge identified (page 75 B-D) the evidence implicating the 5^th applicant as being the evidence of the witnesses Li Hon Kit and Choi Man Kai, the records of interview of the 5^th defendant and evidence of radar traces of vessel movements.

69. Of Li Hon Kit’s evidence, in respect of identification of one of the four men carried in the two voyages on his sampan on 1 and 4 August 2009 he said (page 78 R-U) that :

“ Although he had not seen the four Hong Kong men clearly during the journey, he accepted that he was later able to point out the 2^nd accused at an identification parade on 16 September because he looked very much like one of his customers, one of the four men whom he had conveyed back from Hong Kong to the Mainland on 4 August. You will recall that I have gone through, this morning, the evidence relating to that identification and how you should deal with it.”

70. Having reminded the jury that what the 5^th defendant said in his records of interview with the police was evidence only in the case of the 5^th defendant and was not evidence against any of the other defendants on trial (page 82 B-C), the judge told the jury that the 5^th applicant said that when he disembarked from Li Hon Kit’s sampan at the pier at Sham Tseng on the evening of 4 August 2009 he recognised two of the men waiting on the pier, one of whom he knew as ‘Ah Mao’, namely Lo Chin Wang, the 2^nd applicant.

The Law

71. There is no dispute that evidence of witnesses as to the appearance and description of a person, but not a positive identification of the person, can be admissible evidence.  Standing alone, it does not permit the conclusion that the person observed committed the crime.  However, it may be consistent with or support other evidence which leads to that conclusion.

72. In the judgment of this court in R v Chan Man Shing [1989] 2 HKC 186 the evidence of a victim of a robbery that the person that he had picked out on an identification parade was similar in appearance to one of the robbers was not evidence that the trial judge ought to have told the jury, as he did, to ignore.  In that case the other evidence against the applicant was in respect of a bloodstain found on clothing worn by the accused at the time of his arrest which was identified as being consistent to a high degree with the blood of a victim injured in the course of a robbery. In the judgment of the court, Pennlington JA said of the identification evidence :

“ Evidence of this quality, while not inadmissible, would not in itself be sufficient to found a conviction. We cannot however say that it is evidence which the jury should completely ignore.”

73. In Festa v The Queen [2001] 208 CLR 593 the High Court of Australia addressed the same issue.  The fact in issue was whether the appellant, Ms Festa, was one of the two people who took part in two bank robberies.  Witnesses to the first robbery attended committal proceedings and at the courthouse made qualified identifications of the appellant: one on the basis of her size and height, another that she “looked familiar” and a third that he was “about 75 per cent sure” by her voice and gait.  A witness to the second robbery picked out three photographs from an album of photographs as depicting females having the same layered hair and olive complexion as the female robber.  One of the photographs was a photograph of the appellant.

74. In his judgment, with which the majority agreed on this issue, Gleeson CJ said that the evidence was admissible.  Of the evidence of the first three witnesses, Gleeson CJ said (page 597, paragraph 6) :

“ Some of the evidence given by each of those three witnesses was plainly admissible. It was evidence of their observations of a female person, near the scene of the crime, at the time of the Biggera Waters robbery, who, although wearing a wig and disguised to an extent was of a physical appearance consistent with that of the appellant…”

The judge went on to note :

“ the significance of this evidence was not that, standing alone, it permitted the jury to conclude that the appellant was involved in the robberies. Indeed, standing alone, this part of the evidence of the witnesses did not even permit the conclusion that the female person whose behaviour was observed and described was the appellant. But, if accepted, it tied in with other evidence that one of the robbers was a female, and it showed that the appearance of the female was consistent with her being the appellant.”

75. Of the identification from photographs in respect of the second robbery, Gleeson CJ said (page 599, paragraph 13) :

“ The strength or weakness of evidence may depend in part on the use that may be made of it. Mr Hill’s selection of three photographs, including one of the appellant, of itself could not support a positive conclusion that the woman he saw was the appellant. But the evidence did not stand alone. And even if it only showed a woman he saw was consistent in appearance with her, that was a material fact.”

In addressing the argument made on behalf of the appellant, that the evidence ought to have been excluded, the judge said (page 599, paragraph 14) :

“ If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes in to play to justify withholding it from the jury’s consideration.  It is not enough to say it is “weak”, and, as already mentioned, whether it is weak might depend on what use is made of it.”

76. In a similar vein, McHugh J described the evidence identifying Ms Festa as the woman seen on the days of the robberies as “weak”.  However, he went on to say the (page 609, paragraph 51) :

“ But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.”

77. In R v George [2002] EWCA Crim (29 July 2002) the Court of Appeal of England and Wales addressed the issue of the admissibility of ‘qualified identifications’ in the appeal of George for his conviction of murdering Ms Jill Dando, a well-known television presenter, by a single shot at close range to her head on the doorstep of her home at about 11:30 a.m. on 26 April 1999.  Nobody witnessed the shooting.  However, nine witnesses testified in respect of the description and appearance of a person that they had seen, one the evening before, and the others either soon after 11:30 a.m. or in the hours before the shooting.  Although, they participated in video identification parades, the appellant having declined to participate in conventional identification parades, only one of them, Ms Susan Mayes identified the appellant positively.  On the appeal, objection was taken on behalf of the appellant to the trial judge having consented to the leading of evidence of qualified identifications from the other witnesses as to identity.

78. In the judgment of the court, delivered by Lord Woolf LCJ, in dismissing the appeal the circumstances in which such evidence might be admitted and its use were addressed (paragraph 34-6) :

“ …a defendant must not be convicted on evidence of a qualified identification alone.

However, there are at least two situations were a qualified identification may in appropriate circumstances be both relevant and probative. First, where although the weight of the evidence will still be less than positive identification, it supports or at least is consistent with other evidence that indicates the defendant committed the crime with which he is charged…..

In each case it will be for the Judge to decide whether the evidence is more prejudicial than relevant and probative bearing in mind the importance of protecting the position of a defendant against unfairness.”  [Italics added.]

79. In the result, the court determined (paragraphs 74-6) that the evidence had been properly admitted and that its effect was that each of those witnesses had seen the same man, there being not only an underlying unity of descriptions but also in the circumstances of what each witness saw the man doing, and that the man was the appellant: “There was a general consistency in the identification evidence”.  Also, it was noted :

“ Apart from the ‘identifying witnesses’ there was a considerable volume of other circumstantial evidence, independent of the ‘identifying witnesses’, which suggests there was no error made and coincidence is not the explanation for similarity in what the identifying witnesses stated they saw.”

80. In contrast to the circumstances obtaining in George, the qualified identification by Li Hon Kit of the 2^nd applicant, as being one of the passengers on the two voyages on his sampan on 1 and 4 August respectively, does not lend support to nor is it consistent with other positive identification evidence of those two specific events.

81. Given that Li Hon Kit had identified the 2^nd applicant at the identification parade on 16 September 2009, it is not surprising that no objection was made to the leading of his evidence as to identification of the trial itself.  The Admitted Facts, including one to that effect, is dated 1 February 2011, the day after Li Hon Kit’s evidence concluded.  The jury was reminded by the judge of the evidence of Superintendent Lowcock in respect of the conduct of the identification parade and the fact that they had watched a video recording of that identification parade, which they were invited to view again if they wished.  It follows that, in those circumstances, in particular given that there was no objection to the leading of the testimony, no justified criticism can be made of the judge for allowing the evidence to be led.

82. Further, given that Li Hon Kit had testified that he was not ‘sure’ that in identifying the 2^nd applicant on the identification parade he was identifying his passenger on those two voyages on his sampan on 1 and 4 August 2009, clearly the identification was not positive identification of the 2^nd applicant.  However, it was a qualified identification, in that he had testified as to why it was that he had picked out the person on the identification parade, namely because :

“ one person looked very much alike the one I did come across as my customer.”

He clarified that, by that, he meant the voyages of 1 and 4 August 2009.

83. Of course, that evidence was relevant to the issue of whether or not the 2^nd applicant was in Hong Kong on the early morning of 4 August 2009 when Lee was murdered.  Obviously, the admitted fact that the 2^nd applicant had left Hong Kong on the evening of 1 August 2009 and returned on the evening of 17 August 2009 tended to suggest otherwise.  If accepted by the jury, it was at least consistent with Lam and Yeung’s testimony that the 2^nd applicant was in Hong Kong at the material time.  In its turn that was consistent with their testimony that the 2^nd applicant was present in the forecourt of the Shangri-La Hotel and was a participant in the joint enterprise to murder Lee.  Also, if the jury accepted that following his arrest and during and after the time that the words of caution were administered to him that the 2^nd applicant had said, amongst other things, “I was only responsible for stealing and driving a vehicle” and by that he was admitting driving that vehicle at the time of the murder of Lee, his presence on the sampan was consistent with him being in Hong Kong, so that he was available to drive the vehicle.

84. Of course, as noted earlier, the qualified identification of the 2^nd applicant by Li Hon Kit was also relevant to the jury’s consideration of the case of the 5^th defendant. It was capable of lending support or at least was consistent with his admission in his record of interview with the police that he had encountered the 2^nd applicant, amongst a total of four males, on the pier at Sham Tseng on the evening of 4 August 2009 as he, the 5^th defendant, disembarked from Li Hon Kit’s sampan.

85. Obviously, Li Hon Kit’s identification of the 2^nd applicant was “weak”, so that it was necessary that the jury be directed to that effect.  We are satisfied that the judge did just that.  As set out earlier, it is clear that he directed the jury appropriately as to the difficult circumstances in which observation, for purposes of identification, was made: it was dark; it was a brief view; during the two journeys he had not been in a position to look at their faces and had only roughly seen their appearances.  Although the person looked like one of his passengers on those voyages, he could not be sure (page 51 A-J).

86. In particular, the judge reminded them to approach identification evidence, “with caution” and warned them of the “danger of even an honest witness being mistaken”.  In the result, he directed the jury :

“ ...you must give particular care to deciding on how much weight, if any at all, you should attach to Li’s evidence on this identification. If you are not satisfied by his evidence that he has correctly identified the 2^nd defendant as one of the passengers on the boat, then disregarded it.” [Italics added.]

87. The judge employed the same phrase in respect of the weight that might be attached to Li Hon kit’s identification, namely if any at all, when he summarised his directions to the jury towards the end of those directions (page 68 H-J).

88. Although it is clear that there were a number of bases upon which the jury could have reached their verdict of acquittal in respect of the 5^th applicant on count 3, the verdict is consistent with a rejection of Li Hon Kit’s qualified identification of the 2^nd applicant as a passenger on his sampan.

Conclusion

89. In the result, we are satisfied that the judge was not in error to have left the evidence, such as it was, of Li Hon Kit’s qualified identification of the 2^nd applicant to the jury nor, having done so, was he in error in not directing the jury to ignore that evidence.  In his directions to the jury, the judge laid bare the qualified nature of the identification and the frailties and difficulties attached to the original observations made by Li Hon Kit.  He directed them appropriately as to the caution with which the evidence was to be approached and the particular care needed to be employed by them in examining that evidence.

(iii)  The use by Yeung of still frames of CCTV film in his testimony in respect of the 3^rd applicant

90. Although complaint is made in ground 4 that Yeung was referred to still frames of the CCTV film of the forecourt of the Shangri-La Hotel during his evidence-in-chief, in particular in the context of his testimony in respect of the conduct of the 3^rd applicant, no such objection was taken at trial and the evidence was adduced.  Similarly, although during his evidence-in-chief Lam was asked to view still frames of the CCTV film, including those depicting the three knife-wielding assailants, no objection was taken to that evidence being led at the trial nor is complaint made in the appeal.

91. The fact that no objection was taken at trial to Yeung being referred to the still frames of the CCTV film is in no way surprising, given that by the time he was referred to those photographs, he had given considerable evidence of his knowledge of and contact with the 3^rd applicant both in the months before and on 3 and 4 August 2009.  By the latter dates, he had known him for half a year, seeing him five or six times a week at the Den at which the 3^rd applicant either performed the role of lookout or gambled himself (T. 250).  More particularly, as the judge reminded the jury (page 37 N-38 G) Yeung testified that the 3^rd applicant had telephoned him on the afternoon of 3 August 2009, trying to recruit him to be an assailant of the then unknown victim.  Eventually, it was agreed between them that he would be a lookout only.  As agreed between them, Yeung had gone to Tung Chau Street Park shortly before midnight on 3 August 2009, where he had met the 3^rd applicant and others.  The 3^rd applicant had left in the seven-seater van, sitting in the front passenger seat, whilst the van was driven away by the 2^nd applicant.  As instructed by the 3^rd applicant he had boarded a Mitsubishi motor car, driven by the 1^st applicant, which arrived afterwards.  They had travelled to Lok Kwan Street Park where he had seen the 3^rd applicant aboard the seven-seater van, together with the same persons he had seen earlier.  They were joined by a third vehicle and the three vehicles left in convoy, eventually arriving at the Shangri-La Hotel.

92. Yeung testified that, whilst the Mitsubishi motor car was being driven at a walking pace in the road adjoining the forecourt of the Shangri-La Hotel, he saw the seven-seater van enter the forecourt and strike Lee, after which it moved forward and came to a halt at the exit of the forecourt.  He saw that the 2^nd applicant was still the driver of the seven-seater van.  He recognised him by his face.  The other occupants of the seven-seater van had already disembarked from that vehicle and were chopping Lee.  Yeung recognised them as the person he had seen on board that vehicle earlier, including the 3^rd applicant.  Of how it is that he identified the 3^rd applicant, Yeung said (T. 262 M) :

“Because I had known him for a long time.”

He went on to say that the 3^rd applicant had a “fat build”.

93. Of his view of the three assailants, Yeung said (T. 263 B) :

“ The lighting is sufficient, I could see clearly, but there is a flower bed that blocked my view of the lower parts of their body.”

He said that he could see the upper parts of their bodies and agreed that he had no difficulty in seeing, “who was who”.  He had seen the 3^rd applicant re-boarding the seven-seater van, which was then driven away.

94. It was only after Yeung had given all of that evidence that he was asked to view three of the still frames taken from the CCTV film.  Obviously, the film, taken as it was from within the forecourt of the Shangri-La Hotel, did not replicate the view that Yeung said he enjoyed from the slowly moving Mitsubishi motor car of the 3^rd applicant. Those frames depicted an unobstructed view of the three knife-wielding assailants attacking Lee, as he lay prone on the ground.  Yeung identified the 3^rd applicant in photograph 55 as the assailant holding a raised knife.  He agreed that what he described as the 3^rd applicant’s fat build was evident in photographs 56 and 57.  Further, of how it was that he recognised the 3^rd applicant, he said :

“ Because previously in the fighting he did wear a cap, so I can see very clearly it’s him.”

He was sure it was the 3^rd applicant.

95. In cross-examination on behalf of the 3^rd applicant, Yeung said that he identified the 3^rd applicant, in part, because of this build and also because he had seen his face.  He disagreed with the suggestion that he was not able to identify the 3^rd applicant from the CCTV still frames, photographs 55-58.

The judge’s directions to the jury

96. In his directions to the jury, the judge reminded them that the scenes depicted in the CCTV film or the still frames did not show the particular view of any particular witness (page 4 F-H). Of the view that Yeung said that he had of the forecourt of the Shangri-La Hotel, the judge said (page 39 R-40 B) :

“ Specific features of his evidence you will want to keep in mind in assessing his ability to identify persons is that his observation of what was occurring in the Shangri-La forecourt must have been partially obscured at least by the hotel’s pillars and was, on his own evidence, partially obscured by a flower bed. In addition, if you accept as evidence, he was observing events from a constantly moving vehicle, albeit that it was moving slowly.”

97. Of Yeung’s evidence, identifying the 3^rd applicant as one of the knife-wielding assailants of Lee, the judge said (page 39 G-H) :

“ He was able to identify the three men who were doing the chopping as he could see who they were. He had known the 3^rd accused for a long time……he told you that he could see the chopping clearly even though he could not see the lower part of the bodies of three assailants, or Tai Lung lying on the ground, because they were obscured by a flower bed. He watched the CCTV recordings and said, after looking at Photograph Album No. 2, particularly photograph 56, that he was sure that the 3^rd accused was one of the assailants because he knew what he looked like when he was wearing a cap. He saw the 3^rd accused get back into the van which then headed off.”

98. Obviously, the reference to the testimony of Yeung, that he had been unable to see the lower parts of the bodies of the three assailants, brought home to the jury the fact that that the ‘live’ view of the events enjoyed by Yeung was different from that depicted in the CCTV still frames in which there was no such obstruction.

99. Given that Yeung’s testimony was that the 3^rd applicant was well known to him, that he had been with him over the course of several hours that very evening, having been recruited to take part in an attack, it was perfectly permissible to invite Yeung to view the video film and still frames of the actual attack to which he was a party.  (See the judgment of the Court of Appeal of England and Wales in the Attorney-General's Reference (No. 2 of 2002) [2003] 1 Cr. App. R. 21, page 321 at page 327, paragraph 19 (ii).)  Further, the judge directed the jury appropriately in respect of how they were to approach that evidence of identification.

Ground 5: the judge’s directions in respect of the alleged oral admissions of the 2^nd applicant to the police

100. The judge reminded the jury that the alleged oral admissions of the 2^nd applicant to Detective Sergeant 50054 had been recorded in the latter’s notebook but had not been signed by the 2^nd applicant.  Further, he told the jury that it had been suggested in cross-examination of that officer that the oral admissions had not been made (page 60 M), but that the officers had disagreed and there was no evidence to the contrary (page 64 L-M).  The controversial admission was (page 57 Q-T) :

“ It’s nothing to do with me, it was done by Man San Chung”.

That admission was followed later, after caution, by:

“ It’s nothing to do with me, it was Man San Chung who handled the job. I was only responsible for stealing a vehicle and driving a vehicle. I can’t tell anything further as it may result in death.”

101. Immediately after reminding the jury of that, the judge addressed the sequence of issues that arose, namely firstly, had the words been said and secondly, what was meant (57 T-58 B) :

“ Were you to find that he did utter those words to this 50054, it would be open to you, if you were so minded, to conclude that this was an admission that he had been driving one of the vehicles on 4 August which, in turn you may regard as supporting the evidence of Lam and Yeung.”

102. Having reviewed the evidence at some length, in respect of the first issue, the judge addressed both issues (page 64 G-Q) :

“ It is for you to decide whether or not you are satisfied by the evidence of these witnesses that the 2^nd accused did in fact say the words which you see recorded in exhibit P 121 ……..

If you are not sure that he said those words, then disregard them entirely.  Conversely, if you accept the evidence of the prosecution witnesses and are satisfied that he did say those words, then you would be entitled to take that into account when considering the case for and against him, particularly as to how it may impact on his apparent absence from Hong Kong as shown by the admitted facts.”  [Italics added.]

103. Although in the first instance the judge had suggested how the jury might approach determining the meaning of what the applicant had said, if they were satisfied he had uttered the words, he made it clear that whether they did or not was a matter for them, “if you are so minded”.  In the second reference, the judge made it clear that they were to view the words in an open-textured context, namely as relevant when considering the case ‘for and against’ the 2^nd applicant.

104. What the jury made of the meaning of the words was entirely a matter for them, and the judge was entitled to leave the matter in the manner in which he did.

CONCLUSION

105. In the result, we are satisfied that there are no merits in any of the proposed grounds of appeal against conviction.  Accordingly, the applications for leave to appeal against conviction of the applicants are refused.