HKSAR v. TAM HO NAM

CACC 219 /2019

[2021] HKCA 1384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 219 OF 2019

(ON APPEAL FROM HCCC NO 331 OF 2017)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  The applicant was charged with the murder of Lau Shuk-fan (“the deceased”) on 29 April 2009 at his home in Yau Oi Estate, Tuen Mun, New Territories, contrary to common law and punishable under section 2 of the Offences Against the Person Ordinance, Cap 212.

2.  He was arraigned on 8 July 2019, and stood trial in the High Court before Deputy Judge Stuart-Moore and a jury.  He was convicted on 19 July 2019 by majority verdict, and sentenced to life imprisonment on the same day.  On 24 July 2019, the applicant filed a Notice of Application for Leave to Appeal against his conviction.

3.  The applicant’s leave application was initially heard before a different constitution of the Court of Appeal on 27 November 2020.  However, in the course of its deliberations following the hearing of the appeal, a new issue emerged from the convoluted history of the proceedings, on which the Court considered it needed further argument from both parties, since the matter had not been adverted to at the appeal at all nor was it the subject of a ground of appeal or submission.  Given that one member of the Court of Appeal had retired from the permanent judiciary since the hearing of the appeal, and the Court having reconvened with the two remaining judges to discuss the matter with the parties, it was ordered that the case should be heard de novo before another division of this Court so that the point could be properly addressed. 

4.  In due course, the matter raised by the Court was taken up by the applicant and articulated as an additional ground of appeal (Ground 1A) in a set of amended perfected grounds of appeal, dated 20 May 2021. At the re-hearing of the appeal before this Court on 20 August 2021, and having heard argument on the additional ground and renewed argument on the original perfected grounds of appeal, we reserved our decision and said we would hand down our judgment in due course.  This is our judgment and the reasons therefor[1].

The background to the trial

5.  The present trial was the third completed trial (or second re-trial) of the applicant by a judge and jury^[2].  A pre-trial review, or case management hearing, in respect of what was anticipated to be the third trial was originally scheduled to take place before Toh J on 9 April 2018.  At the hearing, which was in fact the third pre-trial review hearing before Toh J, the applicant discharged his then counsel, Mr Chan Siu-ming.  Further case management hearings were therefore deemed necessary before the same judge on 2 August, 11 September and 8 October 2018, at which the applicant was by then represented by the late Mr Gerard McCoy SC and/or Mr Kim McCoy. 

6.  The trial commenced before Toh J on 31 October 2018, at which a jury were duly empanelled.  Following the jury’s empanelment, and after Toh J had given a preliminary introduction to jurors about their role and the procedures in the trial, Mr McCoy (who had by this time also been joined by Ms Amanda Lee as part of the defence team) successfully argued, as we shall see when we address Ground 1A of the amended perfected grounds of appeal, for certain evidence not to be led by the prosecution.  Nevertheless, on the following day, Mr McCoy and his entire team of defence counsel were discharged at the insistence of the applicant.

7.  Since a jury had already been empanelled and were waiting to hear the evidence, the proceedings were then adjourned so that the Director of Legal Aid could appoint new counsel to represent the applicant.  On 1 November 2018, Mr Sean Kelly was assigned to appear for the applicant.  He was able to see the applicant in conference on Saturday, 3 November 2018. However, on the following Monday, 5 November 2018, Mr Kelly duly appeared in court to find that the applicant also wished to dispense with his services.  Accordingly, on being told in open court that the applicant preferred to represent himself, Toh J formally discharged Mr Kelly.  It was in these circumstances that it was felt necessary that the jury should be discharged on the same day, without the jurors ever having heard any evidence. The case was accordingly put back in the list in order to fix a new date for trial.

8.  In due course, the matter came back into the list for trial in July 2019.  To that end, three further pre-trial reviews were held, again before Toh J, although she was not to be the trial judge; on 5 March, 3 May and 20 May 2019.  At the first of these hearings, the applicant was unrepresented: at the latter two hearings, he was represented by Mr John Hemmings, instructed by the same solicitors who had previously been assigned by the Director of Legal Aid.  The trial proper commenced on 5 July 2019 before Deputy Judge Stuart-Moore (“the judge”), by which time Mr Hemmings had been joined by another junior counsel, Ms Priscilla Lau, as part of the defence team.  On 8 July 2019, following arraignment but prior to the commencement of a voire dire to determine the admissibility of two video recorded interviews (“VRIs”), the applicant again discharged both counsel as well as the solicitors and indicated that he would like to act in person.  It seems there was no conflict or difficulty between the applicant and Mr Hemmings or Ms Lau or the solicitors: as he later explained to the jury, he simply wished to represent himself[3].  Up until that point in this attempt to hold a third trial, the applicant had therefore discharged no less than seven counsel, including one highly experienced Senior Counsel and several very experienced junior counsel.  

9.  At the commencement of the trial, the applicant conducted the voire dire proceedings himself, by cross-examining witnesses and making submissions, but elected not to give evidence on the issue of voluntariness.  On 9 July 2019, the judge ruled the two VRIs admissible in evidence and gave brief reasons for his decision.  On the next day, 10 July 2019, a new jury were empanelled to try the case.  Following a trial, the jury convicted the applicant on 19 July 2019.

The prosecution evidence

10.  In the early evening of 29 April 2009, the applicant, then aged 18, killed the deceased, who was his girlfriend, by chopping her with a knife inside his flat in Yau Oi Estate, Tuen Mun (“the flat”).  The applicant did not dispute that he inflicted numerous chop wounds on the deceased, which caused her death.

11.  The applicant and the deceased had met and began dating during Lunar New Year 2009.  The deceased would sometimes spend the night at the applicant’s residence, which he shared with his mother and elder brother, Tam Pak-yan (“the/his brother”), who was PW1 at trial.  In about February 2009, the deceased moved into the flat, where she and the applicant occupied the lower bunk of a bunk bed, while the brother slept in the upper bunk.

12.  The brother testified that 29 April 2009 was the applicant’s first day at a new job.  The brother arrived home first, followed by the applicant.  At about 5:40 pm, a friend called Ah Fui (“PW2”), came to the flat with some orange juice.  The brother and PW2 subsequently left the flat, but the brother returned on his own at about 7 pm.  Unable to open the door to the flat fully because of the security chain, he thereupon knocked on the door and, when the applicant came to the door, he noticed that he was covered in blood.  The applicant then told his brother that he had killed someone and asked him, “Have you interfered with my girl?”  The brother denied doing so and the applicant closed the door.  The brother knocked again, whereupon the applicant opened the door and asked the brother to call the police.  This he did and police officers and ambulance men duly arrived^[4].

13.  The police officer who first attended the flat, PC 54346 (“PW5”), found the applicant and the deceased on the lower bunk of the bed.  PW5 asked the applicant what had happened, and the applicant responded, “Ah Sir, be quick.  Save my girl”^[5]. The applicant then got off the bed and PW5 noticed that he was also injured.

14.  An ambulance quickly arrived and the first ambulance man to enter the flat, Lau Chui-tim (“PW4”), confirmed that the applicant had two wounds (2 cm and 7 cm in length respectively) on what was described as both arms.  PW4 also found a 1 to 1.5 cm wound on the applicant’s neck above his right shoulder[6]. At the end of his evidence-in-chief, in answer to a question from the judge about any conversation he had had with the applicant inside the ambulance on the way to the hospital, PW4 said that “(the applicant) said to me that his elder brother and his girlfriend had an affair, and so he chopped his girlfriend”^[7].

15.  It was the prosecution case that the applicant had not been provoked but had intentionally chopped the deceased with intent to kill her or to cause her really serious bodily harm.  The defence case was that the applicant had chopped the deceased but had no intention to kill her, or even to cause her really serious bodily harm; alternatively, that he was provoked into killing her.  The applicant had formally entered a plea of guilty to manslaughter by way of provocation^[8], which offer had been rejected by the prosecution.

16.  Hence, the question for the jury was whether the prosecution had proved to the required standard that the applicant had a murderous intent at the time he chopped the deceased.  To this end, the prosecution relied on various admissions made by the applicant under caution.  It is necessary to set out the admissions in some detail because the suggested inconsistencies between the applicant’s accounts in his VRIs and his oral testimony, and their treatment by the judge, were a particular feature of this appeal.

17.  At 3:50 pm on 7 May 2009, some nine days after the killing of the deceased, the applicant was arrested for murder by DSgt 48109 (“PW7”) inside Tuen Mun Hospital.  Under caution, the applicant responded, “Ah Sir, I did not kill her with intent.  At the beginning it was with a view to scaring her but it did not occur to me that she would react in such a big way upon seeing me holding a knife”^[9]. This answer to caution was post-recorded in PW7’s notebook.

18.  Between 5:29 and 6:23 pm on 7 May 2009, the applicant participated in a VRI in Tuen Mun Police Station conducted by PW7 and DPC 49263.  The gist of the 1^st VRI was:

(i)  At about 5 pm on 29 April 2009, the applicant left his work at a restaurant in Tuen Mun and called the deceased on his mobile telephone.  The deceased told him that she was at the flat.  A minute or two later, the deceased sent the applicant a text message that his brother had returned to the flat, which information made the applicant anxious and caused him to hurry home.  When the applicant reached his residential building, he ran upstairs instead of taking the lift, since, if the deceased and his brother were having an affair, they would be able to see him on the CCTV camera^[10];

(ii)  At about 5:30 pm, upon entering the flat, the applicant saw the deceased watching television in the living room and his brother hanging up clothes on the balcony^[11];

(iii)  In the bedroom of the flat, the applicant confronted the deceased and asked her whether she was having an affair with his brother.  The deceased denied doing so, but the applicant kept questioning her and she fell silent.  The applicant took her response as a tacit admission^[12];

(iv)  Despite the applicant’s persistent questioning, the deceased would not admit that she was having an affair.  The applicant then went to sleep^[13];

(v)  After his brother and PW2 had left the flat, the applicant again confronted the deceased, who emotionally denied that there was anything going on between herself and his brother^[14];

(vi)  The applicant then searched his brother’s bed and found cigarette ends of a brand that the deceased usually smoked.  He also detected a strong smell of sweat on the brother’s bed and wondered why there should be such a strong smell if the brother had just arrived home.  He became confused, then angry.  The applicant also smelt shampoo on the deceased’s head, yet she denied having taken a shower^[15];

(vii)  The applicant took a chopper from the kitchen, intending to scare the deceased.  He confronted the deceased again as to whether she had had an affair with his brother, whilst holding the chopper behind his back.  As she sat on the lower bunk of the bed, the deceased denied the accusation and pushed the applicant away, telling him to “wake up”.  The applicant then chopped the deceased indiscriminately^[16];

(viii)  After striking the deceased several times, the applicant put down the weapon and went to make a telephone call to the police.  The deceased then took the chopper and struck the applicant twice in the neck.  Very angry, unable to control his emotions and with his mind blank, the applicant snatched the knife from the deceased and chopped her again all over her body^[17];

(ix)  The deceased lay on the lower bunk of the bed and asked the applicant to hold her.  The applicant thought of dying with the deceased, so he slashed both of his hands^[18]. He also chopped himself on the leg^[19];

(x)  The brother then knocked on the door, which had been fastened with a security chain, and the applicant opened the door, telling his brother that he had killed someone and asking whether he had had an affair with the deceased.  The brother denied it^[20];

(xi)  The applicant returned to the lower bunk of the bed and heard the deceased gasp.  He then asked the brother to call the police^[21];

(xii)  The applicant became suspicious about the deceased having an affair when, in March 2009, he had seen her playing “footsie” with the leg of his brother’s chair; and the brother had begun to draw pictures of the applicant, which he had never done in the past^[22].

19.  Between 10:18 and 10:50 am on the following day, 8 May 2009, the applicant took part in another VRI, this time conducted by PW7 alone.  The gist of the 2^nd VRI was:

(i)  The applicant repeated the basis on which he had entertained suspicions about his brother and the deceased^[23];

(ii)  PW2 had asked the applicant inside the flat why he looked irritated.  The applicant said it was nothing^[24];

(iii)  After PW2 and the brother had left the flat, at about 6:50 pm, the applicant and the deceased began to quarrel^[25];

(iv)  The applicant found drawings in the brother’s handwriting, cigarette ends and a strong smell of sweat on the brother’s bed, which led to a confrontation with the deceased^[26];

(v)  When the deceased denied knowing anything about the cigarette ends and fell quiet, the applicant went into the kitchen and took out a knife with the intention of threatening her^[27];

(vi)  The applicant held the knife behind his back and told the deceased she had one last chance to say whether she had been having an affair with his brother.  The deceased stood up, the applicant took out the knife and chopped the deceased.  The deceased pushed the applicant away and told him to “wake up”^[28];

(vii)  When the deceased shouted for help, the applicant covered her mouth and chopped her three or four times^[29];

(viii)  As the deceased told the applicant to “wake up”, the applicant chopped himself on the neck twice, his right leg twice and then his hand^[30];

(ix)  The deceased shouted for help and seemed to want to get her telephone in order to call the police, whereupon the applicant chopped her again about 10 times^[31];

(x)  The applicant walked out of the bedroom to drink some water. Seeing the deceased on the verge of death, and intending to die with her, he fastened the security chain to the door^[32];

(xi)  When the brother knocked on the door, the applicant asked him whether he and the deceased had been carrying on an affair, and then told him to call the police^[33];

(xii)  When the applicant was reminded that he had said in the 1^st VRI that his neck injuries had been inflicted by the deceased, the applicant stated that he did not want to “frame” the deceased after her death, and that during the 1^st VRI he had been very frightened and confused^[34]. The applicant was cautioned again and confirmed that everything he had said in the 2^nd VRI was the truth.  The applicant also said that he had not intended to lie in the 1^st VRI^[35].

The defence case

20.  The applicant elected to testify before the jury. He said he had grown up in a family marred by domestic violence and he had promised himself that he would never let anyone harm his mother.  He and the deceased had met in January 2009, after which they quickly became close; by February 2009, the deceased was living with the applicant in the flat^[36].

21.  The applicant alleged that the deceased had a sworn brother known as “Tai Kwai Gor”, for whom she would occasionally deliver dangerous drugs.  The applicant had asked the deceased not to get too close with Tai Kwai Gor, but the deceased told him not to interfere in her life.  Sometime in mid-March 2009, the applicant learned that the deceased was also in an intimate relationship with a man called “Pang Pang”.  The applicant asked the deceased about Pang Pang and she had promised not to see him again^[37].

22.  On one night at the end of March 2009, the applicant saw the deceased use her leg to touch his brother’s leg.  The applicant and the deceased had an argument over the matter.  The deceased lost her temper. Afterwards, Tai Kwai Gor had gone to the flat, given the applicant a beating and threatened to throw him off the building^[38].

23.  At about 5 pm on 29 April 2009, upon leaving work, the applicant had made a telephone call to the deceased and they talked briefly.  He took the light rail home.  In the lift lobby of his residential building, he happened to run into someone he knew and, therefore, chatted for about 10 minutes.  He then took a lift up to the flat.  The deceased and the brother were home.  The applicant showered and PW2 arrived at the flat.  The applicant chatted and watched television in the living room with his brother and PW2; and also played chess with PW2.  He then went into the bedroom to play computer games.  Shortly afterwards, his brother and PW2 left the flat^[39].

24.  The applicant wanted to be intimate with the deceased but the latter seemed reluctant.  The applicant asked the deceased if she had contacted Pang Pang, whereupon she became agitated and asked, “Do you think that there are only men … outside -- do you think that men could only be found outside?  While you were out, I could also have affairs with your elder brother on the bed in this house -- in this flat”[40].  The applicant recalled the incident when the deceased had touched his brother’s leg with hers.  He went up to the upper bunk bed, which he found was messy and giving off a strong smell of sweat; he also found some hairs.  He further found cigarette butts of a brand that the deceased usually smoked.  The applicant asked the deceased whether she was having an affair with the brother.  The deceased replied, “What if that person I had affair with is your elder brother?  You are so useless.  You do not have any money.  You should be very happy that I am with you.  You are trying to restrain me in so many ways.  I’m treating you as a male prostitute”[41].  The applicant slapped the deceased, whereupon she became more agitated and said she would get Tai Kwai Gor to cause trouble to the applicant’s family, first to his mother, then the brother, and that she would immediately call Tai Kwai Gor^[42].

25.  The applicant went to the kitchen and came out with a knife. He told the deceased he would not allow anyone to hurt his family.  On seeing the knife, the deceased said “How dare you take out -- to come out with a knife?  Are you going to chop me?  If you dare to chop me once, I definitely would ask Tai Kwai Gor to kill your whole family”[43].  She then rushed at the applicant, got hold of the knife, and struggled with him.  During the struggle, the knife came into contact with the deceased^[44].

26.  Upon seeing the deceased bleeding, the applicant immediately dropped the knife and reached for his mobile telephone to call the police.  While he was doing so, the deceased took the knife and attacked him on the back of his head.  They struggled together on the bed.  The deceased seemed out of control.  She kicked the applicant, swung the knife around randomly and caused chop wounds to his legs.  At one point the applicant was able to regain the knife.  The deceased threw herself on him, but the applicant dared not move for fear he would cut the deceased.  The deceased held onto the knife in the applicant’s hands and pressed the knife against his neck.  The deceased then said, “Go to hell.  Your mother would also go there to accompany you”[45].  On hearing this, the applicant became angry and frightened.  He began swinging the knife randomly.  The deceased tried to grab the knife, but the applicant kept swinging the knife with his eyes closed, and without thinking whether it would cause any harm to the deceased^[46].

27.  When the applicant opened his eyes again, he was shocked to find the deceased covered in blood.  The applicant thought she was dead. Thinking only of dying, the applicant cut both of his hands.  He became worried about the shock it would cause his family, so he went to lock the door. He returned to the bedroom and intended to record his last words with a filming device concealed inside a stuffed toy.  As he picked up the toy, his brother knocked on the door.  The applicant went to the door and told his brother that he had killed someone.  The applicant asked his brother whether he had had an affair with the deceased.  He replied “no”.  The applicant closed the door and went back to the bedroom where he heard the deceased breathing heavily.  The applicant told the brother to call the police and unfastened the chain on the door^[47].

28.  The applicant explained that during the two VRIs, he was in such a weakened mental state that he almost broke down.  He claimed there were doctors who said he was not fit to be interviewed^[48]. He was reluctant to tell the police about Tai Kwai Gor, for whom the deceased had delivered dangerous drugs, because it might shock his family.  Moreover, he felt it was pointless to say bad things about the deceased when she was dead^[49]. He stressed that what he had said in the 2^nd VRI was not “the whole truth” and that he had been “oppressed” by the police, without any further elaboration as to what the “oppression” entailed^[50].

29.  When the applicant was cross-examined as to the existence of Tai Kwai Gor, the applicant alleged that there were photographs of him in the deceased’s mobile telephone, which had not been made an exhibit.  The applicant also complained that the police had failed to seize the stuffed toy containing a filming device which may well have recorded the killing of the deceased^[51].

30.  The applicant further called two witnesses to testify as to his non-violent disposition^[52].

The perfected grounds of appeal

31.  Mr Eric Cheung, solicitor-advocate acting on behalf of the applicant together with Mr Jason Kung, has advanced five grounds of appeal^[53].  Each of the grounds of appeal are set out below, together with the reply of Mr Ira Lui, with him Ms Angel Yuen, on behalf of the respondent.

Ground 1A – the ambulance conversation

32.  Mr Cheung complained that there was a material irregularity in the course of the trial when the judge himself elicited inadmissible and prejudicial evidence of the conversation between PW4 and the applicant, which the prosecution had earlier undertaken not to adduce.

33.  The matter had come about in this way.  On the first day of the abortive trial before Toh J, namely, 31 October 2018, Mr McCoy SC, then representing the applicant, indicated his objection to that part of PW4’s anticipated evidence where the applicant had allegedly said to him on board the ambulance, “My elder brother and my girlfriend have affairs so I chopped my girlfriend” (“the Ambulance Conversation”).  Mr McCoy’s position was that the Ambulance Conversation was of doubtful accuracy and, in any event, was more prejudicial than probative^[54]. Toh J indicated to prosecuting counsel, Mr Martyn Richmond, that, if she were to be asked to rule on the issue, she would agree that the Ambulance Conversation more prejudicial than probative[55]. Accordingly, Mr Richmond undertook not to adduce the Ambulance Conversation but said he would call PW4 to testify only on what he had seen when he attended the flat (“the Undertaking”)^[56].  

34.  In a subsequent pre-trial review on 5 March 2019, also before Toh J, Mr Richmond confirmed the Undertaking, as a result of which the applicant, who by then was acting in person, agreed not to require other witnesses in order to challenge the Ambulance Conversation^[57]. Upon enquiry in writing by Mr Cheung for the purposes of this appeal, in accordance with the guidance of this Court in HKSAR v Apelete (No 1)[58], Mr Richmond has confirmed that the Undertaking remained unchanged when the trial eventually came on before the judge (Deputy Judge Stuart-Moore)^[59].

35.  In accordance with the Undertaking, Mr Richmond did not question PW4 during examination-in-chief about the Ambulance Conversation^[60]. However, of his own motion, and apparently unaware of the Undertaking, the judge himself asked PW4 whether he had spoken to the applicant at any time, which led to the witness revealing the Ambulance Conversation^[61].  Mr Richmond did not alert the judge to the fact of the Undertaking, nor did he do so before and/or during the summing-up; and nor was anything said about the matter by the applicant, who by that stage was acting on his own behalf.

36.  Mr Cheung has argued that the prosecution should have informed the judge of the Undertaking and the reason for it before trial, as it was the duty of prosecuting counsel to raise errors of law with the judge: see HKSAR v Tse Hin Yeung^[62]. His failure to do so led the jury to consider a piece of inadmissible and prejudicial evidence in reaching its verdict.

37.  Accordingly, Mr Cheung submitted that this was a material irregularity, which was not susceptible of the application of the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap 221, because:

(i)  the applicant had been deprived of a fair trial by the admission of the Ambulance Conversation when, as a result of the Undertaking, the unrepresented applicant had agreed not to call other ambulance men to give evidence on the matter;

(ii)  it was impossible to gauge how the Ambulance Conversation had impacted on the jury’s assessment of the applicant’s credibility, in particular, because the Ambulance Conversation was inconsistent with his evidence that he was provoked by the deceased’s threat to ask Tai Kwai Gor to kill his family;

(iii)  the judge did not give any guidance to the jury as to how it could use the Ambulance Conversation^[63], and it was therefore unknown how the jury might have used this piece of evidence. When a judge admits a piece of evidence which is capable of being prejudicial, it is incumbent on him to give clear directions to the jury as to how the evidence may and may not be used^[64].

38.  For the respondent, Mr Lui did not object to leave being granted on this ground of appeal.  Notwithstanding prosecuting counsel’s failure to inform the judge of the Undertaking and the judge’s apparent unawareness of the same, Mr Lui submitted that the admission of the Ambulance Conversation did not have a significant effect on the outcome of the case and would not have materially affected the jury’s decision.  He invited the Court to consider applying the proviso, on the basis that:

(i)  although the applicant was unrepresented, he was obviously aware of his legal rights^[65]. From the fact that he initially requested to call another ambulance man to give evidence after PW4, but withdrew his request on the following day, the applicant clearly attached little importance to PW4’s evidence[66];

(ii)  apart from simply summarising PW4’s evidence^[67], the judge did not give the Ambulance Conversation undue weight or prominence by referring to it in any other context or part of the summing-up;

(iii)  prosecuting counsel did not cross-examine the applicant on the Ambulance Conversation;

(iv)  the judge did not comment on the Ambulance Conversation, nor did he contrast and compare it with the accounts advanced in the applicant’s VRIs or evidence;

(v)  ultimately, the applicant’s evidence was not inconsistent with the Ambulance Conversation, inasmuch as the killing stemmed from the alleged affair which the applicant believed the deceased had had with his brother.

Ground 1 – the failure to give a Liberato direction

39.  Mr Cheung complained that the judge repeatedly invited the jury to find the truth among the applicant’s accounts in the VRIs and his evidence without ever giving the Liberato direction in his summing-up.  He argued there was a real danger that the jury would have been given the impression they could only find provocation established if they considered the applicant’s evidence to be true.  The judge failed to make it clear that they could still act on the applicant’s evidence, even if they only considered it may or might be true.

40.  Mr Cheung has identified several parts in the summing-up where the judge commented that the applicant had advanced a much stronger account of provocation in his evidence than in his 1^st VRI^[68] and left the jury to decide where the truth lay^[69].  He further contended that the judge unfairly suggested to the jury that the applicant’s evidence and his accounts in the VRIs were competing and conflicting accounts, when in reality they were not.

41.  Although the judge reminded the jury of the burden of proof, and told them in terms that the applicant did not have to prove his innocence, he went on to leave it to the jury “to decide whether the version [the applicant] gave 10 years ago is the true version of what happened in that bedroom, or the one he gave you 10 years later, two days ago”^[70]. It was said that a simple comparison between the various accounts, without more, offended the principle laid down by Jim Fai v HKSAR^[71] and HKSAR v Mosen^[72].  Mr Cheung submitted that otherwise correct directions on the burden of proof were insufficient to cure the lack of a Liberato direction, and the position was similar to that in HKSAR v Lee Wai Kei^[73].

42.  It should be noted that Grounds 1(4), (5) and (7) of the amended perfected grounds of appeal were not addressed in the applicant’s written submissions and have not been argued in oral submissions before us.  We do not propose to deal with them other than to say that they do not afford reasonably arguable grounds of appeal against conviction.

43.  For his part, Mr Lui accepted the need for a Liberato direction in the present case.  However, he submitted that one must examine the summing-up as a whole to see if the message has been sufficiently conveyed; indeed, in some circumstances, it might be possible for the Liberato message to be conveyed by general directions as to the criminal burden and standard of proof, providing that nothing said in the summing-up ran counter to that message^[74].  Even where such a direction should have been given, but was not, the omission would not automatically result in the quashing of the conviction.  

44.  The real question was whether the suggested absence of a Liberato direction might have created a real risk of the jury finding against the defendant where his evidence gave rise to a reasonable doubt^[75]. Mr Lui contended that the judge’s oral directions, as well as his written directions, on both murder and provocation sufficiently conveyed the Liberato message to the jury^[76]. He also pointed out that Note 1 of Specimen Direction 44A stipulated that the direction would be required to be modified where there was an objective element in issue (as in provocation), which may result in a conviction despite the truth or possible truth of the defence account.

45.  Mr Lui relied upon the decision in HKSAR v Chan Tam Fu[77], which, he argued, bore strong similarities with the present case.  Chan had been convicted of murder, having pleaded guilty to manslaughter by reason of provocation. He had alleged in a cautioned statement that he had become angry and emotional during an argument with his wife and stabbed her with a knife, when his only intention was to scare her.  Yet, in his evidence, he stated he had intended to commit suicide in front of his wife.  On appeal, the principal ground advanced was the lack of a Liberato direction.  The Court found that, the only live issue being provocation, the trial judge had adequately directed the jury in respect of the burden and standard of proof, with the Liberato message being built into the directions on murder and provocation.  The Court found no material misdirection and upheld the conviction, without finding it necessary to invoke the proviso.  

46.  Mr Lui submitted that the judge had given written directions as well as oral directions in respect of the ingredients of murder.  On the partial defence of provocation, detailed written directions were also given and the jury were told repeatedly that it was for the prosecution to prove that this was not a case of provocation^[78]. When the jury sought further directions on provocation, the judge again instructed them that it was for the prosecution to prove it was a case of murder and not a case of provocation^[79]. Relying on HKSAR v Zhou Limei^[80], Mr Lui added that there was no duty on a judge to give a Liberato direction in respect of every factual dispute in a summing-up.

Ground 2 – the inadequate Mushtaq direction

47.  Mr Cheung complained that the judge had failed to give a full and proper Mushtaq direction following the applicant’s evidence that he was “oppressed” by the police to participate in the VRIs when he was unfit to do so^[81]. The mental or psychological condition or state of the accused was part of the circumstances to be taken into account when assessing whether the admissions were to be regarded as reliable or safe.  The applicant had stated that, at the time of participating in the VRIs, he was physically and mentally weak, having just been released from a 10-day stay in hospital (of which 8 were in the intensive care unit).

48.  In light of this evidence, which was said to give rise to an issue of voluntariness, Mr Cheung argued that the judge had failed to convey the twin objectives of the Mushtaq direction, as identified in HKSAR v Yiu Chi Ming[82], namely, that the jury should be told: firstly, that if they found a defendant’s confession was or may have been obtained in circumstances of involuntariness, oppression or in consequence of anything said or done which was likely to render any confession unreliable, they must disregard it; and secondly, that they must disregard such a confession even if they found that it was true.

49.  Mr Cheung submitted that, at the outset and throughout the summing-up, the judge repeatedly represented the applicant’s evidence on provocation as contradictory to, or as much stronger than, the assertions he had made in his VRIs, and invited the jury to decide where the truth lay.  These directions proceeded on the basis that the jury should have taken into account the contents of the VRIs and, therefore, effectively took away the option that the jury could (or indeed must) disregard the VRIs if they found the applicant might have been oppressed to participate in the interviews in the first place^[83].

50.  When the jury sought further guidance on the meaning of ‘provocation’ a few hours into their deliberations, the judge referred to the VRIs as well as the applicant’s evidence^[84].  Mr Cheung suggested that the judge did not direct the jury again on the issue of the voluntariness of the VRIs, but proceeded as if those confessions had been made voluntarily.  He contended that, as a matter of fairness, the jury should have been reminded that, if they considered that the admissions in the VRIs were or might have been obtained by oppression, they must disregard them in considering the issue of provocation.  Mr Cheung submitted that the further directions might have had the effect of overtaking any earlier directions in the summing-up.

51.  Mr Lui, for the respondent, accepted that the judge did not give the specific terms of Specimen Direction 39^[85].  However, he submitted that, despite omitting the express “might be true” limb of the Mushtaq direction, the judge had made it abundantly clear that the jury could only consider and act on the applicant’s admissions upon satisfaction of both the voluntariness and truthfulness of the applicant’s admissions in his VRIs^[86].  Mr Lui referred to Yiu Chi Ming, where it was held that “the question is really about whether the direction given by the judge contains all that is required by law and does so in a way which would clearly convey to the jury the key message of the Mushtaq direction”^[87].  He submitted that the judge’s instructions that the jury would “need to disregard the answers he gave” and “put them to one side because answers which are forced out of people have no value at all”^[88] would have sufficiently conveyed the two key messages of the Mushtaq direction.  This case was readily distinguishable from the circumstances in Tse Hin Yeung and HKSAR v Lee Wai Ka[89], where the respective judges merely directed the jury to disregard the confessions if they were not sure that the confessions were true.  Mr Lui argued that, while the judge’s direction was not a perfect rendition of Specimen Direction 39, it did not render the conviction unsafe and unsatisfactory.

52.  The respondent disagreed that the fact that only the accounts in the VRIs had been referred to in the written directions was problematic because the judge had emphasised that other directions in law given orally were equally important^[90], and the written directions had been prepared before the applicant gave evidence^[91]. The jury could not have failed to appreciate that they must take into account all other evidence of provocation.  Mr Lui argued that there was no reason to consider the written directions in isolation.

Ground 3 – the inadequate good character direction

53.  Mr Cheung contended that while the judge had correctly resolved to give a good character direction, he made an unfair comment in respect of the applicant and failed to give the propensity limb of the direction. The impugned passage in the summing-up was as follows[92]:

“The defendant is somebody who has no previous convictions with the police. He has a clean character and whilst that does not of course provide him with a defence, it should be taken in favour of him because he has given you lengthy evidence in this trial. There is a difficulty with that, of course, because he also gave many answers to the police which he does not now say are true. He says what he told you in the witness-box is true, not what he told the police about the important matters. Some things are not so important.

But it is right to say that the law regards clean character as something which is in a defendant’s favour insofar as his credibility, the believability of his evidence is concerned. But obviously you are going to have to look at all of the circumstances in this case and decide where the truth is to be found because his evidence obviously provides much stronger evidence of provocation than he ever gave to the police when he provided his answers there.” (Emphasis supplied)

54.  Firstly, Mr Cheung submitted that the judge gave the above directions on the assumption that the jury would accept that the admissions in the VRIs had been made voluntarily.  Moreover, the italicised parts substantially negated the effect of the good character direction, which was unfair because the judge expressed his personal view about the applicant’s credibility, when the applicant was relying on his evidence to support his defence of provocation.

55.  Secondly, Mr Cheung submitted that the judge failed to give any propensity direction when the applicant not only had a clear record, but two defence witnesses had testified as to his non-violent character^[93]. He submitted that the judge should have reminded the jury that a man of good character might be unlikely to indulge in very serious violence unless he had been provoked, for which proposition he relied on Langton v The State[94] and Paria v The State[95].  Mr Cheung advocated that in the present case, a propensity direction, be it in the basic form or in the terms of Langton and Paria, was required to guide the jury in their consideration of the defence of provocation.

56.  Mr Lui, on the other hand, argued that it was within the judge’s broad discretion not to give a propensity direction since he had unequivocally admitted to a brutal killing.  He referred to Tang Siu Man v HKSAR (No 2)[96], in which the Court of Final Appeal had held that the principles enunciated in the English Court of Appeal in R v Vye, which imposed an obligation on English judges to give a good character direction in appropriate circumstances, was not to apply to Hong Kong courts where trial judges retained a wide margin of assessment^[97].  As such, Mr Lui submitted that the applicant’s contention for the requirement of a propensity direction, whether in its standard form or with the Paria refinement, should be viewed with caution, particularly when a line of cases indicated that a failure to give such a direction was unlikely to constitute a material error^[98].  The ultimate test, as held in Tang Siu Man (No 2), was whether the summing‑up as a whole was fair and balanced.

57.  Mr Lui submitted that the judge had fully reminded the jury of the evidence of the brother, DW2 and DW3 as to the applicant’s non‑violent disposition^[99]. In the circumstances, there was no basis for saying that the absence of a specific propensity limb would render the summing-up unfair and unbalanced.

58.  Finally, Mr Lui did not agree that the judge’s use of the word “difficulty”[100] in relation to the applicant’s good character was an expression of personal opinion, since it was no more than an accurate depiction of the state of the evidence and the fact that a direction of credibility could not assist the applicant in respect of his admissions to the police, which were specifically disavowed.  The judge had correctly emphasised that the applicant’s good character supported the “believability of his evidence”[101] at trial.

Ground 4 – miscellaneous matters

59.  Mr Cheung’s Ground 4 was a catch-all ground, which complained of the judge’s failure to give various standard directions in accordance with the Specimen Directions in Jury Trials promulgated by the Hong Kong Judicial Institute. 

60.  Mr Lui’s stance was that the judge’s lengthy summing-up, spanning two days, must be read in its entirety: when that was done, none of these complaints, individually or collectively, could render the conviction unsafe or unsatisfactory.

Discussion

Ground 1A

61.  We shall deal first with the matter which arose from the Court’s own consideration of the papers, and which was adopted as a ground of appeal by Mr Cheung. We say at once that it is regrettable if the judge was not aware from a perusal of the court papers of what had happened at the pre-trial reviews and the abortive trial before Toh J.  But it is even more extraordinary that prosecuting counsel should have sat through the eliciting by the judge of the Ambulance Conversation without intervening to point out that an Undertaking had been given, which he must have known about because he gave it himself.  Or that he did not inform the judge of this fact, even after the Ambulance Conversation had been given in evidence, so that the judge could at least have considered what, if anything, to do about it by way of direction in his summing-up.

62.  However, rather more fundamentally, we have some difficulty in understanding why the Undertaking was ever given in the first place.  It seems to us that the statement made by the applicant to PW4 was plainly relevant, admissible evidence, on which the question for the jury was its weight; given that the applicant had cross‑examined PW4 on the basis that he was wearing a mask at the time and PW4 may have misheard what he said, and that what he in fact said was “my elder brother and my girlfriend had an affair, so I had an argument with my girlfriend”[102]. We note from the judgment of this Court following the first trial that the Ambulance Conversation was led at that trial, without objection, for it is specifically referred to in the Court’s recital of the prosecution case[103].  Similarly, it is clear from the judgment of this Court following the second trial that this evidence was again led at the re-trial, also without objection, and it is also referred to in that Court’s recital of the facts of the case[104].  Yet, rather extraordinarily, no mention was made of this fact by either leading counsel or prosecuting counsel at the hearing before Toh J, when the Undertaking was given[105].

63.  In any event, we agree with Mr Lui that what PW4 recalled the applicant saying was not inconsistent with the defence being advanced, which was that the chopping arose out of an argument with his girlfriend over a perceived affair.  Indeed, given that this was one of the first explanations the applicant gave after the arrival of the police and ambulance men, it tended to provide support at a very early stage for his eventual defence of provocation.  At least it could not be alleged against him that he had invented the quarrel with his girlfriend over the affair with his brother for the first time during his VRIs some nine or ten days later.

64.  When one looks at the way the evidence was dealt with in the summing-up, we do not think that the matter was prejudicial, certainly not as detrimental to the applicant’s case as Mr Cheung now suggests. Indeed, it seems to us to have been consistent with the case he ran.  The applicant testified that when his brother tried to enter the flat at the time of the killing, he asked him if he had had an affair with the deceased, and the brother said “no”[106]. His whole preoccupation at the time, therefore, seems to have been whether the deceased had been having an affair with his brother.  It is to be noted, although by no means a significant factor, that the applicant also made no mention of the Undertaking to the judge at any stage.  Although we grant leave to appeal on the point, we reject the ground of appeal.  The question of the application of the proviso did not, in our judgment, arise.  If we are wrong on that, we would have had no hesitation in applying the proviso since we do not believe this evidence made the slightest difference to the jury’s verdict.

Ground 1

65.  It has been said many times by appellate courts that it can be misleading to take a single sentence out of a lengthy summing-up and read it in isolation and out of context.  As Li CJ put it in Tam King Hon v HKSAR[107]:

“A summing-up must of course be fair. In considering whether it contains material misdirections, the directions complained of must not be looked at in isolation but must be examined in their proper context. Ultimately, it is the effect of the summing-up as a whole on the jury that has to be assessed.”

Moreover, judges are encouraged to identify and address the real issues which are relevant for the jury’s determination in a particular case.  It is not helpful to throw in every conceivable direction out of an abundance of caution, without any distillation of what is necessary and what is not.  As the Scottish Court of Appeal explained in Black and Another v HM Advocate[108]:

“In considering the adequacy and sufficiency of a judge’s charge to a jury it is at all times necessary to keep in view the circumstances of the particular case under review, its simplicity or complexity, and the legal issues which require to be brought to the attention of the jury. Now great elaboration of these issues can be as confusing to the members of the jury as failure to deal with those which are relevant and require to be explained can be misleading. As has been said time and again, the charge must be considered as a whole and not dissected piecemeal in order to detect errors or omissions which, taken out of context, may be used in support of arguments directed to demonstrate particular misdirections or non-directions.”

66.  It has been held by this Court in Chan Tam Fu[109] that when it comes to the giving of a Liberato direction, the summing-up must be viewed as a whole to see whether the message has been effectively conveyed to the jury[110]:

“Even if the Liberato direction is not given, but should have been, the omission will not automatically result in the quashing of the conviction. The issue that arises then is the consequences of this omission, in the context of the particular case. By reference to that context, it is necessary to determine whether, by reason of the omission, the conviction is rendered unsafe. This involves having regard to the summing-up as a whole, in order to determine whether the Liberato message has been conveyed by another form of words or whether the failure to give the correct direction may have given rise to confusion in the minds of the jury on the issue and created a real risk that the jury would have made any finding against the defendant contrary to his evidence if it had given rise to a reasonable doubt”.

The importance of this statement is that not only must an appellate court look to the summing-up as a whole to see whether the message has been effectively delivered but, even it has not, there must be some assessment of whether there has actually been any real prejudice to the applicant as a result, in the context of his particular case.  We note that the Appeal Committee of the Court of Final Appeal refused leave to appeal from the Court’s decision in Chan Tam Fu^[111].

67.  In terms of context, it is obviously important to identify the ultimate questions for the jury in a particular case.  In the present case, for example, the applicant was not seeking an outright acquittal from the jury.  The very first statement he himself made to the jury, when commencing his evidence, was[112]:

“I would like to first tell you that I will plead guilty to the charge of manslaughter. I know that manslaughter is also a very serious offence and I could be sentenced to a very heavy punishment. I would also like to say that even though the judge would apply 25 years as the starting point for the charge of manslaughter, I would still be willing to accept that. What I would like to tell you all is that back in those days, I did not have the intention to kill the deceased.” (Emphasis supplied)

Later in cross-examination, the applicant agreed that he had unlawfully killed the deceased and again repeated, “I admit all along to the offence of manslaughter”[113]. Accordingly, the judge appropriately told the jury in the first part of his summing-up, “[t]he question in this case for you to decide is was it murder or was it manslaughter.  That is the question”[114].

68.  It seems to us, therefore, that if the judge had given the full terms of Specimen Directions 2 and 44A in relation to the applicant’s evidence, namely “he must be acquitted if that account may be true” (Specimen Direction 2.2), and “I have previously told you that if the account given by the defendant is or may be true, then the defendant must be acquitted” (Specimen Direction 44A.1), it would have confused the jury because the applicant was not asking to be acquitted altogether; and, moreover, he did not stand to be acquitted if the jury thought his evidence may or might be true.

69.  It is for this reason that Note 1 to Specimen Direction 44 stipulates that the direction should be qualified where, for example, provocation is an issue.  And that is exactly what the judge did.  The judge directed the jury, both in his written instructions[115] and in his oral directions that[116]:

“If you are sure that the defendant unlawfully killed Lau Shuk-fan, intending to kill her or to cause her really serious bodily harm, the defendant is guilty of murder unless you conclude that this was or may have been as a result of provocation. Provocation is not a complete defence. It is a partial defence reducing what would otherwise be murder to the lesser offence of manslaughter. Because the prosecution must prove the defendant’s guilt, it is for the prosecution to make you sure that this was not a case of provocation and it is not for the defendant to establish that it was.” (Emphasis supplied)

Since the essential evidence of provocation came from the applicant himself, the instruction that the jury must not convict of murder if the killing was or may have been as a result of provocation would have properly qualified the Specimen Directions concerned.  We cannot, therefore, accept Mr Cheung’s argument that “looking at the summing-up as a whole, the Judge failed to sufficiently bring home to the jury that they should act on the applicant’s evidence to determine the issue of provocation if what he said might be true”[117]. The above excerpt from the summing‑up made it quite clear that the jury were to acquit of murder if they thought that the applicant may have been provoked; or, put another way, that what the applicant said about being provoked might have been true.  This direction came at the outset of the judge’s directions (both written and oral) on provocation.  As the Court in Zhou Limei[118] made clear, there is no duty on the judge to keep repeating a Liberato direction in respect of every factual dispute that emerges in the course of a summing-up. 

70.  Inasmuch as there remain other aspects of Ground 1 which, although not argued before us, are part of the applicant’s overall complaint that the judge’s summing-up was unfair and unbalanced, we reject them.  There is no merit in Ground 1 and leave to appeal is accordingly refused.

Ground 2

71.  It is useful to understand the Court’s resolution of the Liberato complaint in Ground 1 before analysing the allied complaint that the judge did not give a so-called Mushtaq direction; for the essential argument under Ground 2 is that the jury were again not told that they must disregard the VRIs, if they concluded that they were or might have been obtained as a result of oppression or at a time when the applicant was or might have been unfit to be interviewed.

72.  Before we address the argument, it needs to be remembered that the House of Lords in Mushtaq were called upon to consider a specific statutory provision in that jurisdiction, namely, section 76(2) of the Police and Criminal Evidence Act 1984 (known as “PACE”), which is in these terms:

“If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused, it is represented to the court that the confession was or may have been obtained – (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.” (Emphasis supplied)

Hong Kong does not have this statutory provision: it has the common law.

73.  That is not to say that different tests apply, but the language of the various judgments of their Lordships in Mushtaq was necessarily directed at, and designed to deal with, the language of the statute, and to consider whether the trial judge’s directions had given proper effect to that language.  As they saw it, there was no real difference in substance with the common law position.  Lord Rodger of Earlsferry, with whose reasoning the majority agreed, considered that “[i]n giving effect to the policy of Parliament in this way, your Lordships are merely reverting to the approach laid down by the Court of Criminal Appeal (Lord Goddard CJ, Byrne and Parker JJ) in R v Bass [1953] 1 QB 680”[119].  Citing with approval the decision in Bass where, in addition to the judge directing the jury to apply the celebrated principle of Lord Sumner in Ibrahim v The King[120], the Court had gone on to say that the judge[121]:

“… should further tell them that if they are not satisfied that it was made voluntarily, they should give it no weight at all and disregard it”,

Lord Rodger continued[122]:

“It seems clear that the courts saw the direction to disregard the confession in such circumstances as part and parcel of the jury’s exercise of attributing the appropriate weight to the confession: in circumstances where they found that it had not been voluntary, for reasons going back to the time of Lord Hale, they should give it no weight and should disregard it.”

74.  Lord Carswell, in a separate judgment, although concurring with the majority’s disposition for slightly different reasons, held:

“In my opinion the requirements of the common law, if they stood alone, would be satisfied by returning to the wording of the direction set out in the decision of the Court of Criminal Appeal in R v Bass [1953] 1 QB 680…”

His view, however, was that, because of the wording of section 76(2) of PACE[123]:

“… the judge should direct the jury in more prescriptive terms than the Bass direction, to the effect that unless they are satisfied beyond reasonable doubt that the confession was not obtained as a result of oppression, they must disregard it”.

75.  The notion that Mushtaq was a departure from Bass and the common law was rejected by Lord Phillips in the Privy Council decision of Wizzard v The Queen[124]:

“The relevant principle derived both from section 76(2) of PACE and article 6 of the EHCR is the principle against self-incrimination. That is a long recognised principle of the common law. The approach in R v Bass accorded with that principle. The approach in Chan Wei Keung v The Queen did not. The latter decision was a false step in the development of the common law. R v Mushtaq has re-established the correct approach…”

The Court of Final Appeal in HKSAR v Pang Hiu San[125] referred to this very passage in Lord Phillips’ judgment with approval, when it held that “the common law is as stated in R v Mushtaq and Wizzard v The Queen”[126].

76.  The question for this Court is whether the judge’s direction accords, not with the specific wording of the statutory provision in PACE, but with the common law.  In addressing that question, it is necessary to look at the two paragraphs of the judge’s directions together to see the contrasting point he was making.  The direction was[127]:

“Can I say this; that if the defendant was forced against his will to take part in those interviews so that he just gave random answers, then you need to disregard the answers he gave in the video recorded interviews. Put them to one side, because answers which are forced out of people have no value at all.

If on the other hand you are sure that there are admissions in those interviews which were made of his own free will and you are sure that you can rely on them as to the truth of what happened, then of course you take them into account.”

We can see no material difference between the way the judge put the matter for the jury and the way the Court put the matter in Bass, the statement of the common law approved in Wizzard and Pang Hiu San. The judge had made appropriately clear that only if the jury were satisfied that the applicant was not forced to take part in the interviews against his will could they consider his answers in those interviews.

77.  In Yiu Chi Ming[128], this Court conducted an extensive examination of relevant authority in Hong Kong since the decision of the House of Lords in Mushtaq[129]. The Court identified what it termed “two key principles” to be derived from that decision, whilst noting that Mushtaq was concerned with the statutory regime and language of PACE[130]:

“…The first key principle is that both the common law and human rights law require that the jury be told that if they found that any confession made by an accused was or may have been obtained in circumstances of involuntariness, oppression or in consequence of anything said or done which was likely to render any confession unreliable then they must disregard it. The second key principle is that the jury must clearly understand that they must disregard such a confession even if they are sure it is true.”

The Court in Yiu Chi Ming had earlier observed[131]:

“Thus, in the present case the question is really about whether the direction given by the Judge contains all that is required by law and does so in a way that would clearly convey to the jury the key message of the Mushtaq direction…”

78.  We must, therefore, ask ourselves whether the two key principles of Mushtaq were made clear to the jury in the present case.  If we break down the judge’s directions, the judge told the jury in respect of the first principle[132]:

“… if the defendant was forced against his will to take part in those interviews so that he just gave random answers, then you need to disregard the answers he gave in the video recorded interviews. Put them to one side, because answers which are forced out of people have no value at all.”

Mr Lui has argued convincingly that if the jury were directed that answers obtained in such circumstances were valueless and should be disregarded, then not only was the judge directing them that such answers were unreliable but, by telling them to put them to one side, he was removing any risk that the jury might have compared the applicant’s evidence with what he had said in his VRIs, which is Mr Cheung’s main concern. Accordingly, the first key principle of Mushtaq was effectively conveyed to the jury.

79.  The judge then went on immediately to direct the jury that[133]:

“If on the other hand you are sure that there are admissions in those interviews which were made of his own free will and you are sure that you can rely on them as to the truth of what happened, then of course you take them into account.”

The respondent has argued that the effect of this passage was that the jury could only take the answers contained in the VRIs into account if they were sure of their voluntariness.  Conversely, if they were not sure of their voluntariness, they could not take them into account, which addressed the second key principle of Mushtaq.  We agree with Mr Lui’s analysis.  If the two passages are looked at together, the twin principles of Mushtaq were adequately conveyed to the jury; and, as we have said earlier, the common law position was fulfilled.

80.  Mr Cheung conceded on this aspect of the ground that if, in the first passage, the judge had said “if the defendant was or may have been forced against his will to take part in those interviews so that he just gave random answers, then you need to disregard the answers he gave in the video recorded interviews” (words in italics added), then his argument that a proper so-called Mushtaq direction was not given would fall away.  So, what this argument comes down to is a complaint that the judge left the jury with the impression that they must be sure the applicant was oppressed into taking part in the VRIs before ignoring them, when all they needed to find was that he may have been oppressed.  However, when the directions in the summing-up are viewed in context and as a whole, this argument is unrealistic.

81.  As we have said, it is important that appellate courts do not simply lift a sentence out of a summing-up which appears not to conform to a particular Specimen Direction or statement of the law approved by our courts, but examine the direction in context, having read the summing-up as a whole to see whether the message has been effectively conveyed and the summing-up is otherwise fair.  If something has not been conveyed to the jury by the judge’s directions which should have been conveyed, then the appellate court must nevertheless consider how material the matter is and whether, if it is material, it may properly be met by the application of the proviso.

82.  Again, the context was that there was no question in this particular case of the applicant being acquitted altogether. He admitted in his own evidence before the jury that he was guilty of manslaughter and, as we have seen, the judge directed the jury that the ultimate issue which fell for their decision was whether the applicant was guilty of murder or guilty of manslaughter.  In that context, the judge was at pains to emphasise to the jury repeatedly that the applicant did not have to prove anything at all, that the prosecution had to prove that he was guilty of murder and disprove the defence that he was only guilty of manslaughter:

“… there are two sorts of manslaughter the defendant has raised as a defence and he does not have to prove anything. It is the prosecution that must produce evidence against him which establishes that this was not manslaughter. This was murder.”[134]

“He is effectively saying he acted under provocation and in any event never intended to kill or cause serious harm to his girlfriend. So he said, ‘I plead guilty to manslaughter’. Well, he does not have to prove that, as I say, and I cannot repeat it often enough. It is not for him to prove. It is for the prosecution to prove it was murder.”[135]

“Because the prosecution must prove the defendant’s guilt, it is for the prosecution to make you sure that this was not a case of provocation and it is not for the defendant to establish that it was.”[136]

“… those two potential defences to murder of manslaughter by reason of provocation or because of an unlawful dangerous act, you need to keep those in your mind when you consider whether this has been proved by the prosecution to have been murder, always remembering the defendant does not have to prove anything. He does not have to prove anything at all.”[137]

“Now, the defendant himself did not have to give evidence. He has chosen to give evidence and that is his perfect right, of course. He is not obliged to give evidence because he does not have to prove anything. No one has to prove anything when they are facing a criminal charge.”[138]

“… I thought I would just summarise what the defendant’s version was to you and also to the police in his interviews about provocation. He does not have to prove it. The prosecution must show that this was a case of murder, not provocation.”[139]

83.  These six recitations from the summing-up are not in fact an exhaustive list of the times the judge made the same point.  But from them, the jury would have understood that: (i) the ultimate issue for them was whether the verdict should be murder (as the prosecution contended) or manslaughter (as the applicant contended).  A complete acquittal was not an option in this case; (ii) the prosecution had to prove murder and disprove manslaughter; (iii) the applicant did not have to prove anything at all and, specifically, did not have to prove his defence.

84.  We have already recited, in the context of the Liberato argument (Ground 1), that the judge told the jury expressly that “the defendant is guilty of murder unless you conclude that this was or may have been as a result of provocation”.  Since the essential evidence of provocation came from the VRIs and the applicant’s oral evidence, the jury would have understood that a much lower test was applicable to his evidence.

85.  Furthermore, when the judge gave his directions on provocation, he repeatedly referred to what “would or might have caused” an ordinary, sober person of the applicant’s age and background to do when faced with the provocative words and conduct offered to him.  Indeed, in this context, he used the word might or may on some eleven occasions[140]. We accept that the judge was dealing here with the objective assessment of how the ordinary man might have reacted to the provocation testified to by the applicant.  Nevertheless, the repeated references to how an ordinary person in the applicant’s position may have reacted reinforced the repeated directions that it was the prosecution, not the defence, who had the task of proving anything to the highest standard of beyond reasonable doubt.

86.  The judge in his opening statements of law in his summing-up, explained to the jury[141]:

“If you decide on any piece of evidence against the defendant’s interest, do so only because you are sure of it. If you are not sure of a piece of evidence, do not hold it against the defendant”.

Later, he directed them how to approach the defence put forward by the applicant[142]:

“… always remembering the defendant does not have to prove anything. He does not have to prove anything at all”.

The plain and simple words “anything at all” would have been understood by a jury to mean precisely what they say, yet Mr Cheung’s argument presupposes that while the jury may have understood the applicant did not have to prove his defence, they may have thought he did have to prove his allegations of “oppression”.

87.  If we put these many directions in the summing-up together, we cannot conceive that the jury would have thought that the applicant, who did not have to prove anything whatsoever, somehow had to prove his allegations of “oppression” before the jury could ignore his VRIs. Reverting to what the judge did say, namely, “… if the defendant was forced against his will to take part in those interviews so that he just gave random answers, then you need to disregard the answers he gave in the video recorded interviews”, we are satisfied that the jury would not have considered the VRIs if they were not sure of the police evidence and thought that what the applicant said about them might conceivably be true.

88.  But even if Mr Cheung were correct and the judge did not specifically use the words “or might have been oppressed”, that would not be the end of the matter.  There is the question of prejudice.  As the passage from Chan Tam Fu above[143] made clear, one must look at “the consequences of this omission, in the context of the particular case”.  On this matter, we are bound to observe, as a matter of record, that at his previous trial (the retrial before Saw J), not only did the applicant not object to the admissibility of what he had said under caution upon arrest and later in his two VRIs, he made specific formal admissions at that trial that everything he had said was voluntary.  In a document headed Admitted Facts, dated 5 September 2011, the following admissions were made and signed on his behalf by experienced defence counsel “under s.65C of the Criminal Procedure Ordinance, Cap 221”:

“3. At about 3:50 pm on 7 May 2009, Detective Sergeant 48109 arrested and cautioned the Accused for murder. Under caution, the Accused answered voluntarily and his words were subsequently post-recorded in the notebook of Detective Sergeant 48109 and signed by the Accused voluntarily for confirmation. The said notebook is now produced and marked Exhibit P14.

4. Detective Sergeant 48109 and DPC 49263 interviewed the Accused between 5:29 pm and 6:23 pm on 7 May 2009 at Tuen Mun police Station and the interview was video-recorded. The Accused was questioned and he answered the questions voluntarily. The video tape accurately recording the said video-recorded interview is now produced and marked as Exhibit P16. The accurate transcript of the interview and its certified English translation are now produced and marked as Exhibits P16A and P16B respectively.

5. Detective Sergeant 48109 interviewed the Accused between 10:18 am and 10:50 am on 8 May 2009 at Tuen Mun Police Station and the interview was video-recorded.  The Accused was questioned and he answered the questions voluntarily.  The video tape accurately recording the said video-recorded interview is now produced and marked as Exhibit P19.  The accurate transcript of the interview and its certified English translation are now produced and marked as Exhibits P19A and P19B respectively.”

89.  The matter does not end there.  In the Clerk’s log of proceedings prior to this trial, Toh J was informed no less than three times at three different pre-trial reviews that there would be no voire dire: on 2 August, 11 September and 8 October 2018.  On each occasion the applicant was represented; once by junior counsel, twice by leading counsel.  Indeed, on 8 October 2018, leading counsel expressly told the judge that there was no issue in respect of voluntariness.  On 31 October 2018, which was the first day of trial before Toh J and a jury, leading counsel only raised the question of the admissibility of the Ambulance Conversation.  It was not until 5 November 2018, with the jury having already been empanelled, that the applicant, by this time representing himself, indicated that he objected to the admissibility of the VRIs.  There appears to have been no argument over the matter and the judge simply ruled that a voire dire was required, before dismissing the jury and ordering the case to be vacated and re-fixed.

90.  From that moment on, nobody, whether judge, prosecuting counsel at trial or either counsel before this Court appears to have addressed the issue that the applicant was in fact still bound by the admissions he had made under section 65C of the Criminal Procedure Ordinance; which no doubt explains why the applicant was never asked a single question in cross-examination about the admissions he had previously made when putting forward his case of “oppression”. Section 65C is in mandatory terms and applies to retrials:

“(3) An admission under this section for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial);

(4)  An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter.”

91.  Admissions which have been formally and solemnly made under section 65C of the Criminal Procedure Ordinance are rightly made very difficult to withdraw and only then, with the leave of the court.  In R v Lee Shek-ching[144], the Court rejected a defence submission that “the primary question was whether the prosecution would be prejudiced by allowing the withdrawal of the admissions, and … that in a capital case the widest latitude should be given to the defence upon an application to withdraw an admission”.  In the present case, Toh J was certainly alive to the fact that the applicant had not challenged the post-record at his previous trial, for she directly asked the applicant at the pre-trial review on 5 March 2019 whether, since he had made no challenge to the post-record at his previous trial, he was adhering to that position at this re-trial.  The applicant answered that he would challenge the post-record.

92.  Moreover, at the pre-trial review on 20 May 2019, Mr Hemmings, then acting for the applicant, correctly observed that the applicant had made admissions at the previous trial and that it may be necessary, therefore, for him to make an application for the admissions to be withdrawn.  However, Toh J made it clear that she was only designated to deal with pre-trial matters and, indeed, this was Toh J’s last involvement with the handling of this case.  This appears to have been the last mention of the admissions which the applicant had previously made: the matter was never brought up or mentioned again, either by Mr Hemmings (before instructions were suddenly withdrawn from him on 8 July 2019), Mr Richmond, the applicant or the judge (by this time, Deputy Judge Stuart-Moore); and no application to withdraw the previous formal admissions was ever made.  Instead, the trial proceeded and the applicant’s formal admissions as to voluntariness were simply ignored and effectively treated as though they had never been made.

93.  We are not to be taken as saying that the applicant was not, even in these rather extraordinary circumstances, entitled to a so-called Mushtaq direction.  But the fact that the applicant had formally conceded voluntariness and admissibility at his second trial, a position he adhered to during various pre-trial reviews until he decided to represent himself, and that he never applied to withdraw those admissions, would be relevant to whether or not he suffered any real prejudice.  Remarkably, he was extremely fortunate in never having to explain his previous formal admissions to the jury, who knew nothing about them at all. 

94.  But, there is an even more fundamental problem for the applicant in this matter.  The applicant’s evidence of what he himself termed as “oppression” was hardly very cogent or convincing.  Indeed, the judge had to prompt him to say anything about it at all[145]:

“COURT: Mr Tam, do you want to tell the jury anything about why you said the things that we have seen on the video recording to the police?

A: You mean at that time?  At that time since my mental status was so weak, that I nearly broke down at that time.  At that time, I thought that this is the end of everything.  My girlfriend has died, I could not take this, I could not take in this whole incident, nor did I want to pass any comment, bad comment, on my girlfriend which has already died.  And also, while I was staying in the intensive care unit in the hospital, I had the same dream every night, and that dream left very deep impression on me.  And that dream is that while I got to the downstairs of the building that I lived, where I was talking with my friend at the lobby, I kept on pressing the button for the lift. However, no matter how many times I pressed on the button, the lift did not come so I have to run up using the staircase to go there.  I want to get back immediately to stop the thing from happening, however, this is only a dream.  And I was also of the view that if I told the police about Tai Kwai Gor, and the fact that my girlfriend had delivered dangerous drugs for him, this may cause very great impact on my family members.  And besides there are doctors who said that I was not suitable to be interviewed by the police and my mood was such that I thought that it was the end of the world.  No matter what I say, it would be of no use.  And I was of the view that it was pointless for me to pass any bad comment on my girlfriend who had already died.”

It may be remembered that the two VRIs took place some nine and ten days after the killing, and after his discharge from hospital.

95.  During cross-examination by the prosecution, the judge intervened again to prompt the applicant to explain why he had “just said something at random”[146]. His answer was[147]:

“A. At that time the – my mood was in a very complicated state. It was a very complicated background that I had just gone through. I was very worried. For instance, the Tai Kwai Gor that I had mentioned and also my family, someone might take revenge on them. And as a matter of fact, I do not want to criticize my girlfriend, and also the police make a strong request of me. Although I was not willing to participate in the video recorded interview, I was told to participate. When I was in a state of know-how, and I had no -- I was not able to defend myself, I have been oppressed by the police to make a statement to them. So I was being asked by them to answer question. Although I was not willing to answer the question, if I do not say such thing, what else could I say? I could simply say something at random or something that does not make sense. And one can also see that the answers that were given by me in these two video recorded interviews was a very chaotic one, and as a matter of fact by the time that I gave these two interviews, I had just been released from the hospital after a 10-day stay there, out of which 8 days I was in the intensive care unit. And also the facts were that I was only 18 years of age then and that was the first ever visit I had to the police station.”

96.  We have some difficulty in understanding what the “oppression” to which the applicant referred was.  Not wanting to be interviewed does not prevent law enforcement officers asking questions.  It is not ‘oppression’ for police officers to conduct interviews of suspects in homicide cases who would rather not be interviewed.  Nobody made the applicant answer as he did, or speak randomly: indeed, it was he who said he was willing to answer questions[148]. It may be noted that Dr Isaac Bruce Yang had given evidence for the prosecution as PW16, whose evidence was summarised by the judge as follows[149]:

“Dr Yang said that the defendant was kept at hospital until 7 May and was released from hospital when he was both physically and mentally fit to be discharged. That, as you know, is important evidence because it is disputed by the defendant who later produced to you something which was said by a lawyer in the Magistrates’ Court to the effect that he was not fit to be interviewed. All right, you have heard what Dr Yang had to say.”

Furthermore, the prosecution also called Dr Eugenia Lok Yung-ching as PW17, who stated that not only was the applicant “mentally and physically fit to leave hospital”[150], he was “mentally fit to be interviewed by the police”[151].

97.  It is well to remember that voluntariness does not depend on the convenience and preference of an accused: oppression does not arise because an accused finds it inconvenient or would prefer not to be interviewed.  As explained by Li CJ in Secretary for Justice v Lam Tat Ming & Another[152], oppression in this context is:

“… conduct by a person in authority which tends to sap and does sap the will of the accused so that he makes the statement. See R v Prager (no 2) [1972] 1 WLR 260; Li Wai Fat & Others v R [1977] HKLR 531.”

98.  We have no doubt that the jury would not have been at all impressed by the applicant’s assertions of “oppression”, such as they were.  Moreover, we fail to see on this evidence how the applicant was conceivably oppressed by articulating his defence of provocation under caution.  He may, with hindsight, have been concerned about the details he left out during the interview, but the essentials of his defence were there.  On this evidence, there was no need for a so-called Mushtaq direction. But, even if there was, we are quite satisfied that the judge made it clear to the jury that they could only act on the VRIs, if they were sure of their voluntariness and truth.

99.  We would point out that in Mushtaq, the House of Lords had in fact held[153]:

“…that in this case there was no evidence whatever of oppression, or of any other improper means, for the prosecution to disprove or for the jury to consider. The directions to the jury as to what they might do if they found that the confession had been obtained by oppression or any other improper means was, accordingly, unnecessary and unduly favourable to the appellant. In these circumstances, the fact that the judge did not go further in his direction cannot possibly affect the fairness of the appellant’s trial or the safety of his conviction.”

While in Wizzard, the Privy Council said[154]:

“Mushtaq was a case where, on analysis, the evidence laid no foundation for a conclusion by the jury that the defendant’s admissions had been obtained by oppression, so the issue of the appropriate direction was academic. The same has proved to be true of the present case.”

We would make the same observations of the present case.

100.  The second part of this ground takes issue with the use of the word “actually” by the judge in the sentence[155]:

“You see how the defendant reacted to the questions and you will be able to judge for yourselves whether, as he said late in his evidence to you last night, or yesterday afternoon I should say, he said that he actually was oppressed by the police into giving evidence at all”. (Emphasis supplied)

This is a very semantic argument, in which Mr Cheung effectively invited us to interpret the word “actually” as if the judge was directing the jury to consider whether the applicant was “really” oppressed; thus, so the argument goes, the jury may not have appreciated that they only had to be satisfied that he might have been oppressed.

101.  We cannot accept this interpretation.  If one looks at the scheme and structure of the summing-up, the impugned sentence came at the end of a section in that summing-up, which was well before the judge dealt with the content of the VRIs and was at that stage concerned with the question of timing, namely, how the applicant was kept in hospital from 29 April until 7 May 2009; how he was taken before a magistrate on 7 May 2009; how he was taken back to hospital where he was arrested and cautioned at 3:50 pm that day; and how he was subsequently interviewed at Tuen Mun Police Station between 5:29 pm and 6:23 pm also on the same day.  He concluded this section by saying, “So there you have all the timing”[156].

102.  He then immediately commented that the jury were “allowed to look at all of the evidence and you have seen the interview”[157].  It was in that context that the impugned sentence was said.  It seems to us that the judge at this stage of his summing-up, namely, before embarking on any directions in respect of the VRIs, and before going through the detail of the VRIs, was reminding the jury, in the context of timing and the applicant’s hospitalisation, that the applicant was contending that he was thereby oppressed into giving the interview.  We do not interpret the word “actually” as “really”: if anything, given the context and its position in the sentence, we think the word was used in the sense of “in fact”; particularly since the applicant had only mentioned “oppression” right at the end of his cross‑examination, after prompting from the judge.

103.  This ground exemplifies the importance of not extracting a single sentence from a lengthy set of instructions and reading it out of context, divorced from the scheme, structure and other directions of the summing-up as a whole.  If one does so, one risks, as we were in this case, becoming ensnared in semantic and esoteric arguments that have lost touch with the reality of the issues in the case. 

104.  In our judgment, the jury would not have thought there was any onus on the applicant to establish anything at all in this case; neither his partial defence of manslaughter nor the veracity of anything he said in evidence or the voluntariness of anything he said in interview.  The repeated and constant theme of this summing-up was that it was for the prosecution to prove its case and disprove the applicant’s case beyond reasonable doubt, while the defence had to prove nothing.  We are not prepared to grant leave on this ground and wholly reject the applicant’s argument.

Ground 3

105.  The complaint that the judge did not give the propensity limb of the good character direction must also be seen in context, particularly given the applicant’s admission to the brutal killing of the deceased in his VRIs and his evidence.  Again, his case, which he emphasised twice in evidence, was that he was guilty of manslaughter, having unlawfully killed the deceased.  We do not in those circumstances think the judge should have given a propensity direction.

106.  In R v Richens[158], on facts which bear certain similarities with the present case, not least that the appellant there was 17 years of age at the time of the killing, Lord Taylor LCJ held[159]:

“The appellant accepted that he had been guilty of a violent killing, and the only issue was whether he had planned it or acted under provocation. While, even in those circumstances, it might have been preferable for the judge to direct the jury on both limbs, we consider that it was open to him to decide in his discretion - as he must be taken to have done - not to do so. The present case can be contrasted, for example, with a case where an employee of good character who has long been in a position of trust without taking the opportunity to be dishonest, is charged with defrauding his employers. In such a case it would, we think, be difficult to justify as a proper exercise of discretion a decision not to give a direction on the second limb. The present case, however, is one where the possible relevance of good character to propensity was much more tenuous.”

Richens, which was approved in the leading case in England and Wales of R v Vye[160], was more recently described in R v Hunter[161] as providing “useful guidance on the proper approach to a defendant who admits another offence”.  It should be remembered, however, that the position in Hong Kong is governed by the Court of Final Appeal’s decision in Tang Siu Man (No 2),  in which it was held that[162] “[t]here is no need in this jurisdiction to impose the Vye and Aziz[163] regime on trial judges”.

107.  In our judgment, the judge’s directions as to character, limited as they were to credibility, cannot be faulted.  In any event, it should be noted that the judge fully reminded the jury of the evidence of two prosecution witnesses and two defence witnesses as to the applicant’s non‑violent character and disposition[164].

108.  As for the Langton or Paria gloss, this matter has already been addressed by Stock VP (as Stock NPJ then was) in HKSAR v Wong Lau Hing[165], where he noted that[166] “despite the suggestion in Langton and Paria, the standard directions on good character and propensity in murder/provocation cases have not been changed in the directions suggested for judges in England and Wales”.  Having been taken to The Crown Court Compendium – Part 1: Jury and Trial Management and Summing Up (December 2020), the proposition remains good in that jurisdiction today.

109.  To be fair to Mr Cheung, he did recognise, in the light of these authorities, that he had an uphill task on this particular ground.  We find nothing in this ground and refuse leave to appeal.

Ground 4

110.  This ground was in part derived from what were said to be the judge’s failures to follow Specimen Directions 1, 29, 37, 44A and 55.  Some of these alleged failures have been addressed in dealing with the previous grounds of appeal.  We do not propose to repeat the arguments, which were confined to a few lines in one paragraph of Mr Cheung’s written submissions. Other than Specimen Directions 37 and 44A, no further arguments were advanced in relation to the other Specimen Directions.  Irrespective of whether a judge follows a Specimen Direction to the letter, an appellate Court will always look to see if the message has been effectively conveyed and, if it has not, whether the departure is in any way significant, bearing in mind that the fairness of the trial is the paramount concern.

111.  Given that the judge’s summing-up has been subjected to a minute dissection of the language he used (or did not use), we desire to say that the applicant received a very fair trial.  Although it was his own choice (for whatever reason) that he should be unrepresented, having dismissed his counsel, with whom he told the jury he “did not have any dissatisfaction”[167], and who were described as “all very good legal teams”[168], “so good”[169], “very experienced”[170] and “committed in assisting me in my case”[171], he conducted a perfectly competent defence by himself, for which he was actively assisted from time to time by the judge.  We can detect no unfairness, bias or pejorative comment from the judge in the summing-up or throughout the trial. 

112.  Indeed, there are two respects in which the applicant was very fortunate indeed.  The first, we have already touched upon under Ground 1A.  We can see no justification for the Undertaking given by prosecuting counsel, particularly when the evidence of PW4 had been led without objection at both of his previous trials.  Unfortunately, Toh J was not apprised of this fact when she agreed that the evidence should not be led.

113.  The second, which we regard as rather more important, is that the applicant at his first trial had given evidence, which was so entirely different from his evidence before the jury in the present case that we wondered at one stage whether the applicants were the same.  In its judgment at the appeal following the first trial, the Court recited the defence case in the following terms[172]:

“The primary case advanced by the applicant at trial was that, at the time of the killing of the deceased, he was suffering from an abnormality of mind induced by disease that substantially impaired his mental responsibility for his acts in causing her death. Alternatively, he relied on the partial defence of provocation.

The applicant testified at his trial, as did two psychiatrists called on his behalf. He said that he consumed “ice” about two or three times a month. He had done so two or three days before the date of the death of the deceased. He accepted that he harboured suspicions that his girlfriend was having an affair with his elder brother. However, he denied that he was connected in any way to the death of the deceased. He said that whilst he was talking to his girlfriend he heard voices telling him that nobody liked him and it was better that he die. Then, his girlfriend’s head metamorphosed into that of a pig. Having obtained a chopper from the kitchen he struck the deceased some blows with the chopper. Then, he desisted in his attack. Whilst he was making a telephone call to the police the deceased attacked him with the same chopper. He testified that it seemed that his assailant wanted to take his life. In his first record of interview (counters 444 – 450) he had said that in consequence he felt “very angry” and could no longer control his emotions. He regained possession of the chopper and resumed his attack on the deceased.

Dr CH Yuen and Dr Sylvia Chen were the two psychiatrists called in the defence case. Dr Yuen, who had examined the applicant as early as 11 May 2009 and on thirteen subsequent occasions, expressed the opinion that the applicant was not schizophrenic but that he might have been psychotic at the time of the offence. In his opinion, it was possible that the applicant was suffering from such an abnormality of mind as substantially impaired his responsibility for what he had done.

Dr Sylvia Chen, who examined the applicant once only on 30 April 2010, was of the opinion that the applicant was definitely suffering from an abnormality of mind such that his mental responsibility for his acts was substantially impaired.”

114.  Needless to say, the applicant at the trial with which we are concerned was never tackled on any of his previous story: he did not repeat anything about, nor was there any cross-examination in respect of, diminished responsibility, metamorphosed pigs’ heads, drugs or psychotic episodes. Indeed, the last thing the applicant said in examination-in-chief, before the judge helpfully prompted him to explain why he had said what he did in the VRIs, was[173]:

“I do not have any criminal records, and I have no history of mental illness.”

This was a rather breath-taking claim in view of the defence he had run at his first trial.  Equally, there was no mention at all in the applicant’s evidence at the first or second trials of Tai Kwai Gor, who is now said to have been such a prominent feature of the deceased’s alleged provocation.

115.  Yet at no stage was the applicant ever cross-examined about these and other variations in his evidence as inconsistent statements on oath before a court.  It is not clear why the applicant was never questioned about such extraordinary changes in his account.  Perhaps prosecuting counsel was not aware of them: if that is so, he should have been. Whatever the position, the judge certainly knew of these differences because he expressly referred to them when sentencing the applicant on 19 July 2019[174]:

“Much of the defendant’s story about provocation given to this jury was never given before.  He had made up what was obviously a better story than in his previous trials.  In his first trial he spoke about thinking that his girlfriend had become some kind of monster with the head of the pig that he was fighting and he put up some mental defence.  In the second trial he did not say half the things that he said about provocation that he said in this case and the jury may well say, “Why weren’t we told any of this?”  And, in fact, I ask myself the same question.”

116.  The final question the judge posed was perhaps directed at prosecuting counsel for not cross-examining the applicant on these issues, as he could have done.  Nevertheless, it remains the fact that the applicant was dealt an extremely fair hand by both prosecuting counsel and the judge throughout this trial.  Indeed, notwithstanding that the applicant had given evidence and called two witnesses, Mr Richmond refrained from making a closing address for the prosecution.  We have already dealt with how the applicant was simply able, without objection or any leave being granted in accordance with the law, to challenge the admissibility of his VRIs, when he had earlier made formal admissions as to their voluntariness.  Assertions that the applicant was deprived of a fair trial by the judge (or prosecuting counsel) so that his conviction was rendered unsafe and unsatisfactory should be seen against that background. Leave to appeal on Ground 4 is refused.

117.  This case further exemplifies why it is important to appreciate the history of a case and for an appellate court to ensure it has a complete and thorough overview of the evidence and issues at trial when adjudicating a ground of appeal, or invoking (or not invoking) its other remedial powers.

Conclusion

118.  Ultimately, we have found nothing in this appeal which causes us to have any concern about the safety of the conviction.  Although we grant leave to appeal on Ground 1A only, we dismiss the appeal on Ground 1A and refuse leave to appeal on all other grounds.  The appeal is accordingly dismissed.

[1]  We should add that after reserving our decision on 20 August 2021, we received further handwritten letters from the applicant in person, dated 22 and 24 August 2021, as well as other documents, which we have had formally translated.  They are more directed at the issue of sentence, should we be minded to allow the appeal and substitute a verdict of manslaughter.  We have read them and bear them in mind.

[2]  The applicant first faced trial (in HCCC 312/2009) before Wright J and a jury, at which he was unanimously convicted on 17 May 2009.  Subsequently, his appeal against conviction was allowed by the Court of Appeal, who ordered a re-trial: see HKSAR v Tam Ho Nam [2011] 2 HKLRD 436.  A second trial (in HCCC 69/2011) took place before Saw J and a jury, at which he was again found guilty, by a majority verdict of 6:1, on 19 September 2011.  The applicant applied for leave to appeal against his conviction to the Court of Appeal, which dismissed his application: see HKSAR v Tam Ho Nam (Unrep., CACC 405/2011, 11 October 2012).  On further appeal to the Court of Final Appeal some 5 years later, on the basis of the Court of Final Appeal’s judgment in HKSAR v Liang Yaoqiang (2017) 20 HKCFAR 1 on the law of provocation, the applicant’s appeal was allowed: see HKSAR v Tam Ho Nam (No 2) (2017) 20 HKCFAR 414.  A re-trial was ordered by the Court of Final Appeal.  The present appeal arises out of that re-trial, which was the appellant’s third trial.

[3]  Appeal Bundle (“AB”), pp 304T-305J.

[4]  AB, pp 28H-30N.

[5]  AB, pp 30O-31F.

[6]  AB, p 301J-M.

[7]  AB, p 302F-G.

[8]  An offer was made in open court on 5 July 2019; as well as during the applicant’s evidence on 16 July 2019, at AB, p 304O.

[9]  AB, p 36G-R.

[10]   AB, pp 98-113, counters 71-200.

[11]   AB, pp 113-115, counters 206-220; AB, p 123, counters 289-290.

[12]   AB, pp 117-120, counters 238-264.

[13]   AB, pp 124-125, counter 306.

[14]   AB, pp 125-129, counters 308-348.

[15]   AB, pp 130-134, counters 350-379.

[16]   AB, pp 130-138, counters 350-414.

[17]   AB, pp 139-148, counters 428-500; p 206, counters 974-975.

[18]   AB, pp 148-152, counters 502-530.

[19]   AB, pp 204-206, counters 962-979.

[20]   AB, pp 152-156, counters 536-560.

[21]   AB, pp 157-158, counters 566-578.

[22]   AB, pp 179-181, counters 761-772.

[23]   AB, pp 217-218, counters 27-36.

[24]   AB, pp 231-232, counters 143-154

[25]   AB, pp 237-238, counters 199-212.

[26]   AB, pp 239-245, counters 214-264.

[27]   AB, pp 246-247, counters 273-282.

[28]   AB, pp 249-254, counters 298-336.

[29]   AB, pp 254-255, counters 339-350.

[30]   AB, pp 256-258, counters 362-378; pp 262-264, counters 412-428.

[31]   AB, pp 265-269, counters 437-478.

[32]   AB, pp 271-277, counters 495-546.

[33]   AB, pp 282-286, counters 584-612.

[34]   AB, pp 258-260, counters 379-394.

[35]   AB, pp 259-260, counters 389-394; p 293, counter 670.

[36]   AB, p 305M-T; pp 306M-307C.

[37]   AB, p 307D-S.

[38]   AB, pp 307T-309A.

[39]   AB, p 309G-Q.

[40]   AB, pp 309T-310A.

[41]   AB, p 310F-H.

[42]   AB, pp 309Q-310L.

[43]   AB, p 310N-O.

[44]   AB, p 310M-Q.

[45]   AB, p 311K-L.

[46]   AB, pp 310S-311O.

[47]   AB, pp 311P-312N.

[48]   AB, p 313J-K.

[49]   AB, p 313B-L.

[50]   AB, p 323L-Q, pp 323Q-324H; pp 325H-326J.

[51]   AB, pp 328J-332G.

[52]   AB, pp 72B-73G.

[53]   By the Amended Perfected Grounds of Appeal, dated 20 May 2021.

[54]   AB, pp 340O-342M.

[55]   AB, p 344A-C.

[56]   AB, p 344K-Q.

[57]   AB, p 345Q-R.

[58]   HKSAR v Apelete (No 1) [2019] 5 HKLRD 574.

[59]   At [2] of Mr Martyn Richmond and Mr Kelvin Man’s letter dated 19 March 2021.

[60]   AB, pp 300A-301T.

[61]   AB, pp 301U-302G.

[62]   HKSAR v Tse Hin Yeung [2016] 4 HKLRD 136, at [21].

[63]   AB, p 31N-U.

[64]   HKSAR v Nancy Kissel (2010) 13 HKCFAR 27, at [145].

[65]   See examples at AB, p 63A-P; p 323D-I; p 345.

[66]   It might, in this connection, be noted that this was not a ground of appeal articulated by the applicant, until this Court drew Mr Cheung’s attention to the matter.

[67]   AB, p 31F-U.

[68]   AB, pp 8H-9O, p 10M-Q.

[69]   AB, p 42D-J, p 64J-O.

[70]   AB, p 64J-O.

[71]   Jim Fai v HKSAR (2006) 9 HKCFAR 85.

[72]   HKSAR v Mosen [2011] 1 HKLRD 45.

[73]   HKSAR v Lee Wai Kei [2016] 5 HKLRD 795, at [24]-[26].

[74]   HKSAR v Chan Tam Fu [2016] 1 HKLRD 608, at [61]-[72].

[75]   HKSAR v Or Chung Yeung [2004-2005] HKCLRT 108, at [13]-[20]; HKSAR v Chan Tam Fu [2016] 1 HKLRD 608, at [72].

[76]   AB, pp 7T-8A; p 10C-H; p 15F-O; p 20I-N; p 22F-N; p 23J-K; p 27A-D; pp 27S-28B; p 64I-O; p 81D-I; p 83F-I.  See also the written directions at AB, pp 335-337.

[77]   HKSAR v Chan Tam Fu [2016] 1 HKLRD 608.

[78]   AB, p 20I-N, p 21F-S; pp 22E-23K; p 25A-F; pp 25Q-26M; 81D-I.

[79]   AB, pp 335-337.

[80]   HKSAR v Zhou Limei [2020] HKLRD 234, at [55]-[60].

[81]   AB, p 313C-M.

[82]   HKSAR v Yiu Chi Ming [2021] 1 HKLRD 876.

[83]   AB, p 42D-J; p 64E-O.

[84]   AB, pp 81D-83L.

[85]   AB, pp 41I-42J.

[86]   AB, p 42D-F.

[87]   HSKAR v Yiu Chi Ming [2021] 1 HKLRD 876, at [42].

[88]   AB, p 42A-C.

[89]   HKSAR v Lee Wai Ka [2020] 2 HKLRD 1431.

[90]   AB, pp 11R-12A.

[91]   AB, p 23B-H.

[92]   AB, pp 63T-64I.

[93]   AB, pp 72B-73G.

[94]   Langton v The State (2000) 56 WIR 491.

[95]   Paria v The State (2003) 62 WIR 471.

[96]   Tang Siu Man v HKSAR (No 2) (1997-1998) 1 HKCFAR 107.

[97]   Ibid., at 130B-F and 133C-134A.

[98]   R v Vye [1993] 1 WLR 471, at 477B-D; Tang Siu Man v HKSAR (No 2) (1997-1998) 1 HKCFAR 107, at 128B-I; HKSAR v Wong Lau Hing [2013] 5 HKLRD 85, at [17]-[22]; HKSAR v Liang Yaoqiang (Unrep., CACC 393/2010, 30 October 2013), at [71]-[74]; R v Richens (1994) 98 Cr App R 43, at 46-47.

[99]   AB, p 30B, p 30J-N; pp 72B-73G.

[100] AB, p 64B.

[101] AB, p 64F.

[102] AB, p 303G-K.

[103] HKSAR v Tam Ho Nam [2011] 2 HKLRD 436, at [3].

[104] HKSAR v Tam Ho Nam (Unrep., CACC 405/2011, 11 October 2012), at [14].

[105] AB, pp 339-342.

[106] AB, p 312G.

[107] Tam King Hon v HKSAR (2006) 9 HKCFAR 206, at [15].

[108] Black and Another v HM Advocate, 1974 SLT 247, at 250.

[109] HKSAR v Chan Tam Fu [2016] 1 HKLRD 608.

[110] Ibid., at [72].

[111] HKSAR v Chan Tam Fu (Unrep., FAMC 19/2016, 9 February 2017), per Ribeiro, Tang and Fok PJJ.

[112] AB, p 304O-R.

[113] AB, p 326L.

[114] AB, p 13A-B.

[115] AB, p 335.

[116] AB, p 20I-N.

[117] Skeleton submissions of the applicant, dated 11 June 2021, at [24].

[118] HKSAR v Zhou Limei [2020] 1 HKLRD 234, at [59].

[119] Mushtaq, at 1531C-D.

[120] Ibrahim v The King [1914] AC 599.

[121] R v Bass [1953] 1 QB 680, at 684.

[122] Mushtaq, at 1531F-G.

[123] Mushtaq, at 1538E-F.

[124] Wizzard v the Queen [2007] UKPC 21, at [37].

[125] HKSAR v Pang Hiu San (2014) 17 HKCFAR 545, at [43].

[126] Ibid., at [54].

[127] AB, p 42A-F.

[128] HKSAR v Yiu Chi Ming [2021] 1 HKLRD 876.

[129] R v Mushtaq [2005] 1 WLR 1513.

[130] Yiu Chi Ming, at [55].

[131] Ibid., at [42].

[132] AB, p 42A-D.

[133] AB, p 42D-F.

[134] AB, pp 7T-8B.

[135] AB, p 10E-J.

[136] AB, p 20L-N.

[137] AB, pp 27R-28B.

[138] AB, p 64I-L.

[139] AB, p 81G-I.

[140] AB, p 22K; p 22P; p 22S; p 23I; p 25D; p 25S; p 26A; p 26I; p 74G; p 74J; p 79O.

[141] AB, p 15Q-R.

[142] AB, p 28A-B.

[143] At [66] supra.

[144] R v Lee Shek-ching [1987] HKLR 31.

[145] AB, p 313B-M.

[146] AB, p 326A.

[147] AB, p 326B-J.

[148] AB, p 89, counters 11-12 (1^st VRI); p 212, counters 3-4 (2^nd VRI).

[149] AB, p 33E-H.

[150] AB, p 35F-G.

[151] AB, p 35H-I.

[152] Secretary for Justice v Lam Tat Ming & Another (2000) 3 HKCFAR 168, at 177F-G.

[153] Mushtaq, at [58].

[154] Wizzard, at [39].

[155] AB, p 37F-I.

[156] AB, p 37E.

[157] AB, p 37E-F.

[158] R v Richens (1994) 98 Cr App R 43.

[159] Ibid., at p 47.

[160] R v Vye [1993] 1 WLR 471, at 477B-D; G-H.

[161] R v Hunter [2015] 1 WLR 5367, at [10].

[162] Tang Siu Man (No 2), at 133B-C.

[163] R v Aziz [1996] AC 41.

[164] AB, p 30B; p 30M-N; p 72B-P; p 73E-F.

[165] HKSAR v Wong Lau Hing [2013] 5 HKLRD 85.

[166] Ibid., at [22].

[167] AB, p 304T-U.

[168] AB, pp 304U-305A.

[169] AB, p 305F-G.

[170] AB, p 305A.

[171] AB, p 305A-B.

[172] HKSAR v Tam Ho Nam [2011] 2 HKLRD 436, at [5]-[8].

[173] AB, p 313A-B.

[174] Transcript on sentencing, p 2M-Q.