HKSAR v. KWAN TAT YEE

CACC 213/2018

[2023] HKCA 441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 213 OF 2018

(ON APPEAL FROM HCCC NO 298 OF 2017)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  On 16 December 2022, the applicant filed a Notice of Motion applying to this Court for a certificate to the Court of Final Appeal on the basis that our decision on 7 December 2022, dismissing his appeal against a conviction for murder, involved the following points of law of great and general importance. In a jury trial:

“1. Is the Liberato direction applicable only when there was a conflict of evidence between the prosecution and the defence but not when there was a conflict between the evidence of the defence witness in court and his/her previous out of court statement?

2. When the accused did not give evidence but sought to rely on evidence from a defence witness whose evidence was challenged by the prosecution for being inconsistent with his/her out of court statement given previously to the police, is it a misdirection for a trial judge to direct the jury to decide whether what he/she was saying in court true or was the truth really what he/she was saying to the police on the earlier occasion, without giving the Liberato direction which could clearly convey the message that the jury could/should act on his/her evidence in court when considering the defence case even if they did not positively believe it but considered that it might be true?

3. Should the Liberato direction be re-framed along the following lines as suggested by the majority of the High Court in Australia in De Silva v R (2019) 375 ALR 1 at [12]:

‘(i) if you believe the accused's evidence (if you believe the accused’s account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police) you should put that evidence (account) to one side.’”

2.  The applicant was convicted after trial before a judge and jury of murdering his wife (the deceased).  In a video recorded interview, the applicant admitted to stabbing the deceased with a knife following a struggle.  The deceased suffered a stab and cut wound to the head and neck and two stab wounds to the chest, one of which was fatal.  The fatal wound entered the deceased’s chest to a depth of 14 centimeters, piercing her heart and penetrating her liver, causing massive bleeding and her death.  There were also cuts on the deceased’s fingers which may have indicated they were defensive injuries, but the pathologist was unsure that this was the case[1].

3.  To understand what was in issue at trial, it is important to note the following.  It was an admitted fact that the applicant caused the injuries to the deceased “due to a stab wound to the chest that went through the heart and penetrated into the liver, which would have caused death from massive bleeding”[2], by using a black knife (exhibit P1), which was 20 centimeters in length and 2 centimeters in width[3]. It was also an admitted fact that the applicant pleaded not guilty to the murder charge but guilty to the lesser charge of manslaughter which the prosecution had not accepted[4].

4.  At his trial, the applicant advanced the defences of diminished responsibility, provocation and unlawful and dangerous act manslaughter.  He did not give evidence.  He called a psychiatrist and his sister, who was present during the incident, to give evidence on his behalf.  His sister testified there was an argument and struggle between the applicant and his wife, but she did not know how the wife was stabbed.  This was in contrast to her statement to the police that when she was in her room, she heard it was very noisy but did not remember anything after walking out of her room[5]. The prosecution challenged her evidence in court as being inconsistent with what she had earlier told the police.  The judge summarized the sister’s evidence, including the cross-examination in which she was questioned about her previous inconsistent statement.  After a review of her evidence, the judge said it was for them “to decide where the truth is to be found in all of this”[6].

5.  Mr Eric Cheung, for the applicant, took no issue about the sister being cross-examined on a prior inconsistent statement to the police, which was in the form of a video recorded interview, as this went to her credibility as a witness.  He complained that the judge, having contrasted the sister’s evidence in court with what she had told the police, failed to give the jury a Liberato direction as regards her evidence, and there was a danger that the jury had not acted on it when considering the defence case, even if they found it might be true.  The terms of the ground of appeal read:

“The Trial Judge failed to give the Liberato direction to the jury as regards the Sister’s evidence but instead misdirected the jury by repeatedly inviting them to decide whether they believed her evidence, thereby creating a real danger that the jury had not acted on the Sister’s evidence when considering the defence case even if they found that it might be true.”

6.  As we explained in the judgment, the complaint about the failure to give a Liberato direction required that we address the terms and scope of the direction and its application in light of recent relevant decisions emanating from Australia.  However, Mr Cheung seemed to mainly focus his argument on the judge not telling the jury that they could act on the sister’s evidence in court when considering the defence case if they found that it “might be true”.

7.  The first question is not a point of law of great and general importance.  It is well settled that the Liberato direction may arise when the jury is invited to decide the case based on a selection between the credibility of the prosecution version and the defence version.  See Lee Fuk Hing v HKSAR[7]; Law Chung Ki & Another v HKSAR[8]; Jim Fai v HKSAR[9]; and HKSAR v Mosen[10]. The Liberato direction does not extend to a defence witness’s inconsistent statements or conflicting defence evidence.  Such a proposition is not conceptually compatible with the principle the Liberato direction seeks to address.

8.  Mr Cheung prays in aid the remarks of Chan PJ in Jim Fai[11] that if the jury think that the defence evidence pointing to innocence is true or may be true then they should acquit the accused.  However, Chan PJ also said that the direction to the jury as to how they should approach defence evidence is intrinsically linked up with the direction on the burden and standard of proof[12].  Previously, Bokhary and Chan PJ in Law Chung Ki[13] remarked whether that message was conveyed to the jury depends on the circumstances and the summing-up as a whole, and that it may be possible for that message to be sufficiently conveyed by general directions as to the criminal burden and standard of proof, provided that nothing said in the summing-up runs counter to that message.

9.  There is a danger in taking a “broad brush” approach with directions to a jury.  The suggestion that a jury should be told that an accused should be acquitted if the defence evidence “might be true”, depends on the nature and quality of the defence evidence.  It might be that the defence evidence is limited or ambiguous and would not provide a defence to a charge even if it might be true: HKSAR v Tam Ho Nam (No 2) [14].

10.  The second question misunderstands the application of the Liberato direction.  As we have already noted, the direction is concerned with the situation where the jury are invited to decide between the evidence relied upon by the prosecution and that by the defence in such a way that there is a danger that they wholly reject the defence evidence without considering whether it gave rise to a reasonable doubt[15].  This question raises as a point of law whether the Liberato direction applies to the situation where a defence witness’s evidence in court is inconsistent with his or her previous out-of-court statement.  It is an issue that goes to the witness’s credibility as to whether his or her evidence in court should be believed. 

11.  The third question stems from our reconsideration and reformulation of the Liberato direction, following  the majority of the High Court of Australia in De Silva v R[16]. The reformulated Liberato direction is an important and necessary adjustment to this instruction to a jury in respect of its terms and application.  It was apparent to us that the reformulation seeks to address a literal application of Brennan J’s statement to the direction and to define the parameters of the direction.  It is concerned with the situation where the prosecution and defence evidence stand in contrast with each other and seeks to ensure that the jury take into account the defence evidence where it gives rise to a reasonable doubt even though they have not fully accepted it.  

12.  A Liberato direction is usually applied when a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness or the accused’s account in a recorded police interview, and there is a reasonable likelihood that the jury will think that they must believe the defence evidence to be true before they can acquit the accused.  As we understand it, this usually arises in cases described as “word against word”, where a complainant and a defendant give evidence.

13.  Mr William Tam, SC, with Ms Chan Sze Yan, for the respondent, argued that the third point of law alone is academic because it will have no bearing on the result of the applicant’s case.  He submitted that a certificate on this point of law should be refused. 

14.  The grant of a certificate by the Court of Appeal is the first step in the process of applying for leave to appeal to the Court of Final Appeal on a point of law of great and general importance involved in its decision pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap 484.  The certifying court needs to be satisfied that the point of law (i) is involved in its decision; (ii) is reasonably arguable; and (iii) of great and general importance: Lee Kin Pong v HKSAR[17]; HKSAR v Fong Kwok Shan Christine[18].

15.  Whilst we have followed and applied the relevant Australian authorities in our judgment, we can see that the third point of law raises for consideration the terms and scope of the Liberato direction which the Court of Final Appeal may wish to consider and address.  Depending on how that point of law is resolved, it could have specific application to the present case and wide application in general.  For this reason, we do not consider the point of law is academic.  We are satisfied that the point is reasonably arguable and of sufficiently great and general importance to grant a certificate, which we do. 

[1]   Appeal Bundle, pp 41F-42N. 

[2]   Appeal Bundle, pp 10 and 13, Admitted Facts, at [11] and [25].

[3]   Appeal Bundle, p 9, Admitted Facts, at [8a].

[4]   Appeal Bundle, p 15, Admitted Facts (3), at [1].

[5]   Appeal Bundle, p 61P-R. 

[6]   Appeal Bundle, p 61P.  HKSAR v Kwan Tat Yee [2023] 1 HKLRD 289, at [85].

[7]   Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, at [25]-[29].

[8]   Law Chung Ki & Another v HKSAR (2005) 8 HKCFAR 701, at [15].

[9]   Jim Fai v HKSAR (2006) 9 HKCFAR 85, at [16]-[18].

[10]   HKSAR v Mosen [2011] 1 HKLRD 45, at [12]-[17].

[11]   Jim Fai, at [16].

[12]   Ibid., at [18].

[13]   Law Chung Ki, at [15].

[14]   HKSAR v Tam Ho Nam (No 2) [2021] 5 HKLRD 367, at [68].

[15]   HKSAR v Kwan Tat Yee, at [97]. 

[16]   De Silva v R (2019) 375 ALR 1.  See HKSAR v Kwan Tat Yee, at [102]-[111]. 

[17]   Lee Kin Pong v HKSAR [1998] 1 HKLRD 182, 183F.

[18]   HKSAR v Fong Kwok Shan Christine, unrep., FAMC 29/2016, 8 February 2017, at [3].