HKSAR v. HAU KING YEUNG

CACC 375/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 375 OF 2005

(ON APPEAL FROM HCCC NO. 120 of 2004)

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R E A S O N S   F O R   J U D G M E N T

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Stuart-Moore, VP (giving the reasons for judgment of the Court):

Background

1.  The applicant (D2 at trial) was originally indicted for murder with two others, Wong Wai-man (D1) and Lee Kar-yeung (D3).  The offence was committed on or about 17 December 1996.

2.  Shortly described, the lengthy chronology relating to this case is that on 26 May 1998, the applicant, together with D1 and D3 were convicted following a trial before Beeson J and a jury but, on 3 November 2000, their appeals against conviction were allowed in the Court of Final Appeal and a retrial was ordered.  A second trial then took place before Gall J resulting once again in the conviction of the applicant, D1 and D3.  The applicant and D1 applied for leave to appeal against conviction.  D3, who was fifteen years old at the time of the offence, sought leave only in respect of his sentence of 24 years’ imprisonment.  On this occasion, the Court of Appeal allowed the appeals against conviction and ordered a further retrial for the applicant and D1.  Following a petition to the Chief Executive pursuant to section 83P of the Criminal Procedure Ordinance, Cap. 221, on behalf of D3 and his consequent appeal being allowed, he in due course appeared with the applicant and D1 when the second retrial was listed before Tong J.  Applications were made on their behalf to stay the proceedings.  These were refused and D1 and D3 then pleaded guilty to murder.  A voir dire then took place to determine the admissibility of the applicant’s statements under caution.  These were ruled to be admissible and on 29 August 2005, one juror having been discharged during the trial, the applicant was convicted of murder by a majority of 5 to 1.

3.  The applicant sought leave in these proceedings to appeal against his conviction for murder.  At the conclusion of the hearing on 24 October 2006, we dismissed the application and we now give our reasons for so doing.

The prosecution’s case

4.  The grounds of appeal render it unnecessary to go into the facts in any depth and an analysis along the lines given to us by Mr Reading SC on the respondent’s behalf will suffice for present purposes.

5.  The prosecution called five witnesses.  These included the deceased’s mother and elder brother (PW1 and PW2 respectively) who, between them, provided background information about the deceased, aged twenty-four, who had left home during the evening of 17 December 1996 never to return.

6.  The applicant was arrested on 8 March 1997 by a police officer (PW3) at Room A, Front Portion, 1^st Floor, 12 Fuk Chak Street, Tai Kok Tsui, Kowloon, which was also the place identified in the murder count as the scene of the crime.  Under caution, the applicant replied: “Ah Sir, at the time, I did not kill him intentionally.  We killed him inexplicably as if manipulated by supernatural being.”  A written record of this was made soon afterwards which the applicant signed to acknowledge the accuracy of the answer he had provided.

7.  Later, PW3 interviewed the applicant and a video-recording was made of this.  In essence, the applicant admitted that he, together with D1, D3 and a fourth man, had killed the deceased in the flat.  He explained that he and D1 had each borrowed about HK$100,000 from the deceased and they were falling behind with their repayments.  He said that the deceased had discovered D1’s address and had threatened to visit D1’s family if the debt was not repaid.  As a result, he said that there was “such an idea of solving it with this way”.

8.  The applicant said that the flat in question was rented in his name and he and the others lived there.  During the morning of 17 December 1996, the applicant prepared tools, including a wooden pole and a roll of string for the attack.  He then led the deceased to the premises, having given him some excuses.  When the four of them pinned the deceased down on the bed, he said: “Don’t you people do that.  Let’s have a talk if there is any problem.  If it is concerning money, no need to repay.  Don’t make troubles”.  The applicant grabbed the deceased’s neck with both of his hands and also pinned down his arms during the struggle.  He had also tried to strike the deceased with a screwdriver but struck D1 by  mistake.  One of them strangled the deceased by putting a television antenna around his neck and one of them covered the deceased’s nose with a cloth.  Three minutes later, the deceased started to struggle less.  He said that the four of them had gone out of control.

9.  After the attack, the applicant said that several of them were very confused at that time and guessed that the deceased was not yet dead.  A quilt was taken to cover his body and the applicant also took the deceased’s wallet.  The applicant and the others then changed their clothes and found transport to take them to Wanchai to have a meal.  The applicant withdrew HK$20,000 from the deceased’s account with the use of the ATM card in the wallet.  This was shared amongst the four of them.  After the meal, they took a taxi to play billiards and they then played mahjong until the early hours of 18 December 1996.  This was followed by tea at a restaurant before tools were purchased to help with the disposal of the corpse.  These included saws, towels, plastic bags and cartons.  The applicant said that he sawed the head off the corpse and D1 cut off the legs but as they found it difficult to cut up the body they were not able to cut it into more pieces.  The dismembered body was then put into plastic bags and cartons and dumped in Tai Po.  The applicant cleaned up the premises.  No part of the deceased’s body was ever found.

10.  The admitted facts revealed that the applicant, D1 and D3 left Hong Kong for Macau at more or less the same time during the evening of 18 December 1996.

Defence case

11.  The applicant, aged 20 at the time of the offence, elected to testify.  He said that he and the others discussed a plan on 15 December 1996.  He said that the plan was not to kill the deceased but was just to make him unconscious, inflict bruises on him and to apply pressure.  They planned to tie him up so that they could negotiate about the loan.  He said that things had not happened according to plan in that D1 ended up strangling the deceased to death using the antenna wire.  He admitted that, collectively, they had killed the deceased and described this as a case of “the plan to have a talk having gotten out of hand”.

12.  In relation to the caution statements, it was alleged that the police officers had assaulted and threatened the applicant, offered inducements to him, and attempted to deceive him.  They had also coached him so that he would give a clear confession to murder.  The applicant said that the answers in the video-recorded interview had not all come from his own mind.  Many of the answers were distorted versions of what had happened.  The distortion came from the material PW3 had given him and made him read before the interview.

The issue

13.  There was no dispute that the applicant had been directly concerned in killing the deceased.  The prosecution alleged that the only proper inference to be drawn from the applicant’s admissions was that this was a premeditated case of murder by the four men who had carried it out.  The applicant’s case, on the other hand, was that he lacked an intent to kill or to cause grievous bodily harm at the time of the killing and, in this regard, the applicant had entered a plea of guilty to manslaughter which the prosecution had not accepted.

Grounds of appeal

14.  Mr Graham Harris, who did not appear for the applicant in the court below, raised five grounds of appeal.

(1)    Judge’s refusal to grant a permanent stay of proceedings

15.  It was submitted that, having regard to the “highly unusual circumstances” which had arisen in the case, the judge was wrong to have refused an application for a permanent stay of proceedings.  Mr Harris described this court’s decision to order a third trial on the same charge of murder as “almost unprecedented”, particularly when the guilty verdicts in the two earlier trials had been by majorities of 6 to 1 and 5 to 2 respectively and when, by the stage the order for a second retrial was made, the case was already very stale.

16.  Mr Harris referred, in support of his argument, to the Privy Council’s decision in Charles and Ors v The State [2000] 1 WLR 384.  In that case, the appellants’ convictions for murder were overturned by the Court of Appeal in Trinidad and Tobago on the ground of a misdirection to the jury and a retrial was ordered.  In the second trial, the jury were unable to agree on verdicts and a retrial was again ordered.  This resulted in the conviction of the appellants whose appeals to the Court of Appeal were dismissed.  They then appealed to the Judicial Committee which held, allowing the appeals, in words taken from the headnote of that case, that:

“… the question whether a retrial should be stayed on grounds of delay was primarily one for the trial judge, and was to be answered by reference to local conditions and practices at the time and to questions of public interest as well as of fairness to the defendant; that since the matter was raised before the trial judge the defendants were entitled to raise it on appeal before the Judicial Committee notwithstanding that they had not raised it before the Court of Appeal; and that, although the Judicial Committee would not readily interfere with a judge’s discretion in such a case, to allow the prosecution to proceed a third time on a charge of murder more than nine years after the event, when on the first occasion the conviction had been quashed on appeal and on the second the jury had failed to agree, was an abuse of the criminal process; and that, further, the judge’s failure to make allowances in his conduct of the trial for the difficulties facing the defendants only added to the problems caused by the delay.”

17.  We shall deal in due course with the separate issue concerned with delay as this forms the basis of another ground of appeal albeit for present purposes, on the facts of this case, we are satisfied that the delay to which this case has, for understandable reasons, been subjected was not such that it justified a stay of proceedings.  The evidence was not complicated.  Much of it had been recorded in writing, on videotape or was admitted and the applicant had been provided with transcripts of the evidence he had given in the earlier trials.  Furthermore, all of the witnesses were still available.  In our view, Tong J, well aware of the obvious length of the delay, was right to have concluded in the exercise of his discretion that the delay had not deprived the applicant of the opportunity of receiving a fair trial.

18.  The main basis put forward by Mr Harris for this ground was that it was unconscionable for the applicant to have been made to undergo a third trial for murder.  However, Mr Reading pointed to the way in which Charles and Ors v The State (above) has been commented upon in Archbold [2006] at paragraph 4-45 based upon a reference to the English Court of Appeal’s decision in R v Henworth [2001] 2 Cr App R 47.  From this case, Mr Reading cited a passage from the judgment of Kennedy LJ, referring to the decision in Charles and Ors v The State, in which having identified a background of considerable delay in Charles and Ors, he continued (at pages 51-52):

“21    Obviously, against that background, delay formed a very important part of the submissions being made on behalf of the appellant to the Privy Council.  At page 387 Lord Slynn said this:

‘The State accepts that it is a common practice, though not a rule of law, for the prosecution to offer no evidence where two juries have disagreed but that here the position is different; only one jury was unable to reach a verdict. It was thus for the prosecution to decide whether the public interest in the conviction of criminals required the second retrial to go ahead subject to the discretion of the trial judge to stay the proceedings for abuse of process.’

22      At page 390G he said:

‘It must be stressed that the complaint here is not just on the ground of delay but also on the ground that it was quite wrong that these defendants should have been put on trial not for the second but for the third time after so many years and when one conviction had already been quashed and when one jury had been unable to agree on a verdict.’

23     We interpose there that that shows, as Mr Clegg readily conceded, that what follows was clearly in the circumstances obiter.  But Lord Slynn went on:

‘It may be contrary to due process and unacceptable as a separate ground from delay that the prosecution having failed twice should continue to try to secure a conviction. In this case however both factors fall to be considered.’

24     It is that penultimate sentence on which Mr Clegg places considerable reliance.

25     We see no reason to think that when saying what he did, Lord Slynn intended even to suggest that there should be some new principle of law such as that for which Mr Clegg now contends.  If we are wrong as to that, we respectfully reject the suggestion that any such principle should be said by this Court to exist.  Where a serious crime has been committed and it is shown that there is a case to answer as far as a defendant is concerned, there is a clear public interest in having a jury decide positively, one way or the other, whether that case is established.

26     Having said that, we recognise the possibility that in any given case a time may come when it would be an abuse of process for the prosecution to try again.  Whether that situation arises must depend on the facts of the case which include, first, the overall period of delay and the reasons for the delay; second, the results of previous trials; thirdly, the seriousness of the offence of offences under consideration; and, fourthly, possibly, the extent to which the case now to be met has changed from that which was considered in previous trials.”

19.  We observe in the present case, unlike the situation in Charles and Ors, that the three juries which tried the applicant for this murder were on each occasion able to reach an acceptable majority verdict.  Clearly, this was a case of the utmost gravity which, in the public interest, required resolution especially bearing in mind that the applicant had, by his own admission, played an unlawful part in killing the deceased and the evidence supporting the allegation was unaffected by the passage of time.

20.  Accordingly, as there was no proper basis for the judge to have stayed the proceedings, this ground failed.

(2)   Directions to the jury about delay

21.  It was submitted under the 2^nd ground of appeal that even if the 1^st ground failed and the judge’s ruling on the stay application was not found to be at fault, nevertheless it was incumbent on the judge to give adequate directions to the jury as to “the possible prejudice to the applicant of facing a trial some eight years and seven months after the event”.  Mr Harris argued that while such directions had been given at an early stage in proceedings, it would have been “more satisfactory” for these directions to have been repeated during the summing up.

22.  This was a point of no real substance.  Mr Harris was unable to point to any prejudice suffered by the applicant which had arisen from the delay of many years before his third trial and he was left saying that it was a “point of principle”.

23.  There was, in our opinion, no basis for having raised this as a ground of appeal.  There was either prejudice, or possible prejudice, or there was not.  If there was none, there was nothing for the judge to address.  This ground was misconceived.

24.  In fact, for the sake of completion, and as Mr Harris accepted, the judge gave a very full direction to the jury on the delay at the outset of the trial when he said to the jury who had just been empanelled:

“In this particular case and during the trial, I believe you will hear reference to evidence which was given on a previous occasion.  Please do not speculate about the nature of the previous occasion.  In our system of justice there are various reasons for, and circumstances, under which witnesses will give evidence on an issue on more than one occasion.  It is unnecessary and it would not help you for me to describe how and when, or such circumstances, can arise.

Another point.  As you can see from the indictment, the alleged incident had taken place in December 1996.  So we are now concerned with events which are said to have taken place a long time ago, almost nine years ago, in fact.  Now this is important.  You should not speculate on why this matter comes before the court now.  Again, in our system of justice, there are occasions when a long period of time passes between the events in question and the trial of an accused in connection with those events.

It is unnecessary, and it will not help you for me to describe how and when or such circumstances can arise.  As I said, you should not speculate why this trial takes place before you now.  There is no question of fault to be attributed to any party; you should simply concentrate on the evidence before you and make a decision accordingly.

However, in assessing the evidence, you should make allowances for the fact that with the passage of time, memories fade; witnesses, whoever they may be, cannot be expected to remember with crystal clarity, events which occurred almost nine years ago.  Sometimes the passage of time may even play tricks on one’s memories.  You should also make allowances for the fact that from the accused’s point of view, the longer the time since an alleged incident the more difficult it may be for him to answer.  You only have to imagine what it would be like to have to answer questions about events which are said to have taken place almost nine years ago to appreciate the problems which may be caused by the lapse of time between the alleged event and this trial.  If you decide that because of this the accused has been placed at a real disadvantage in putting forward his case, take that into account in his favour at the end when deciding if the prosecution has made you sure of his guilt.”  (Appeal bundle pp. 516-517)

25.  It was obviously sensible to give this direction at that stage of the trial and the topic was returned to in brief form in the summing up.  No more, in the present circumstances, was called for and Mr Harris’ suggestion that the judge should have repeated the same direction he had given on the first day of this retrial was without force as nothing had occurred during the trial which could justify this.

(3) and (4)  The discharge of a juror

26.  It was submitted in the 3^rd ground that in the unusual circumstances of the case, the discharge of a juror during the evidence being given by the applicant, which reduced the jury to six, was a material irregularity.  In the 4^th ground, it was suggested that the judge had failed in his summing up to address the juror’s discharge properly.  These grounds can be taken together.

27.  Again, we have to observe that these grounds lacked any substance.  Mr Harris’ argument largely rested on a contention that “no consideration at all seemed to have been given to discharging the whole jury and recommencing the trial before a fresh jury”.  This is both correct and unsurprising.  Defence counsel made no application for the discharge of the juror and he informed the judge, in forthright terms, of his approach to the problem, saying:

“My Lord, I’m most grateful for the time.  I have discussed the matter with my learned friend.  I have, with my learned friend’s permission, spoken to the accused albeit he’s giving evidence.  I am firmly of the view, my Lord, that the best course of action in this case would be to at this time release this particular juror.

……

I realise it reduces the numbers, I realise there are potential problems with that, but I think it’s the best course of action, my Lord, and I would recommend that course to your Lordship.”  (Appeal bundle p. 319)

28.  The judge then, also in clear terms, excused the juror from further attendance, concluding with the words:

“Now, in light of this framework and having received further communication from the company concerning the particular juror, I think in the circumstances and having discussed with counsel, the court would release the particular juror now.  So your further assistance is not required in this case.  We are sorry to lose you at this stage but I think in the circumstances this is a relatively speaking a better course to take.  So Madam, I think you can go now, and the rest of you will continue with the trial.”  (Appeal bundle p. 323)

29.  There was no confusion as the jury would have been well aware of the problem which one of their members was facing.  There was, it follows, no need for any further direction to the jury and, for the reasons we have given, there was no basis for discharging the whole of the jury.

30.  These grounds were devoid of merit.

(5)     Allegation of lying

31.  In the 5^th ground, it was alleged that prosecuting counsel at trial had “wrongly and unfairly attributed to the applicant in cross-examination evidence which he [counsel] claimed the applicant had given in evidence-in-chief” and had gone on to say that the applicant had been “caught out lying”.  It was submitted that this error was never corrected and, in a case where the applicant’s credibility was crucial to his defence, this was said to have been a material omission on the part of the judge.

32.  The point which Mr Harris raised had obviously escaped everyone’s attention at trial and certainly it was neither made the subject of a complaint by defence counsel nor even regarded as worthy of re-examination by him.  This is, however, no criticism of trial defence counsel as the point, even if technically correct, appears to be so obscure as to be unworthy of consideration.

33.  The applicant was cross-examined from 2.40 pm on 24 August 2005 until about 1.00 pm on 25 August 2005.  During that time, prosecuting counsel suggested to the applicant that he had lied about the use of “delaying tactics” to avoid assisting the deceased with the storage of pirated goods whereas the applicant had made reference to “delaying tactics” in regard to the deceased’s request that the applicant should smuggle a gun from the Mainland into Hong Kong.  In the circumstances, it did not matter in the slightest what the delaying tactics related to as it was prosecuting counsel’s point that the evidence which the applicant had given about the storage of pirated goods was a recent fabrication as it had never been mentioned by the applicant in earlier proceedings.  Furthermore, the judge covered the topic of ‘lies’ fully in the summing up so that no complaint could be made, or indeed has been made, that the jury was ignorant of the proper approach to be taken to any lies which they were satisfied had been told by the applicant.

34.  This ground, being bereft of merit, failed.

Conclusion

35.  For the reasons we have given, the application was dismissed.