HKSAR v. ARIF AQIB AND ANOTHER

CACC 223/2020

[2022] HKCA 1030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 223 OF 2020

(ON APPEAL FROM HCCC NO. 56 OF 2019)

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J U D G M E N T

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Introduction

1.  The 1^st and the 2^nd applicants, who were D1 and D2 at trial and who would be so referred to in this judgment, were jointly charged with one count of murder (Count 1)^[1] and two counts of wounding with intent (Counts 2 and 3).^[2] On 3 December 2020, they were convicted after trial before Yau J (the “judge”) and a jury by a majority verdict of 6:1 on all counts.  On 17 December 2020, D1 was sentenced to life imprisonment whereas D2 was sentenced to 20 years’ imprisonment. 

2.  D1 and D2 both seek leave to appeal against conviction and, originally, D1 also sought leave to appeal against sentence.  However, at the leave hearing, D1 confirmed that he would abandon the application for leave to appeal against sentence and his application was accordingly dismissed. 

The Prosecution Case

3.  On 13 November 2017, at around 11:00pm, at Ngau Tau Kok Road Playground (“the playground”), while a group (“the victim group”) was gathering and drinking at the pavilion, several males armed with knives/choppers/metal poles attacked the group.  As a result, Waqar Hamed (“the deceased”) died and Singh Jaskarn Brar (“PW4”) and Mohammad Yasin (“PW5”) were seriously injured. 

4.  The prosecution suggested that the reason for the attack was animosity between Tyson (“PW1”) in the victim group, and Sing Fai as well as KK in the attack group.  While it was accepted that D1 and D2 did not take part in the actual attack, the prosecution asserted that they were acting in a joint enterprise with those who actually attacked the victim group, knowing that the group of assailants would use knives/choppers/metal poles.  The prosecution further said that each of the applicants had a specific role in the joint enterprise: D1 was responsible for driving people to the scene to carry out the attack whereas D2 was responsible for guiding the assailants to the playground. In a nutshell, this was the prosecution case. 

Evidence Against D1

Prosecution Witnesses

5.  More particularly, the prosecution relied on the evidence of PW1 and PW4. 

6.  PW1 told the jury that he had an argument with Sing Fai and KK about a month before the attack.  At the material time, he was drinking and chatting at the pavilion with the victim group.  Shortly before the attack, he saw three vehicles, namely a grey Toyota 7-seater (“the 7-seater”), a white-colour 7-seater (“the white van”), the driver being one Ansib Mahmood (“Ansib”) as identified by PW1, and a black/dark blue saloon car (“the black car”) driven by D1, circling the playground at low speed.  When the deceased appeared, PW1 greeted him and when PW1 returned his attention to the vehicles, he saw the attackers rushing towards them. 

7.  PW4, the victim in count 2, also said that about 10 minutes before the attack, he saw D1 driving the black car slowly past the playground twice, looking in their direction. 

8.  Apart from PW1 and PW4, the prosecution also relied on the undisputed evidence of two passers-by, PW2 and PW6, who apparently saw the 7-seater and the armed assailants. 

D1’s VRIs

9.  In D1’s 3^rd and 4^th video recorded interviews (“VRIs”), D1 said: Sing Fai and KK showed him a photo of the victim group (including PW1, PW3, PW4 and PW5) when they were at the Pakistani Club and said they had to go to the group in D1’s car.  Before getting on board D1’s car, Sing Fai and KK talked to Ansib, the driver of the white van which was parked nearby.  After D1 had driven for about two minutes, Sing Fai took over; Sing Fai and KK then started talking about “beating them.” 

10.  D1 further admitted circling the area after they had arrived and Sing Fai was keeping an eye on the victim group. Then, Sing Fai telephoned someone to hurry up and talked about how many people were still there at the playground. 

11.  Later, the white van with 2 to 3 passengers on board and the 7-seater full of passengers wearing masks, gloves and caps also arrived.  The passengers alighted from the 7-seater, holding knives and iron bars.  D1 said that D2 then got off his car and signalled the people to cross the road, pointing at the people in the playground.  The men ran towards those people and Sing Fai started moving the car.^[3] D1 was scared because he did not know the attackers would come with cleavers/choppers.  He therefore told Sing Fai to stop the car.  He then got off and ran away to hide himself. 

12.  At trial, the prosecution asked the jury to reject D1’s assertion that he was initially not aware of the attack. It was also the prosecution’s position that D1 had driven the black car all the way to Ngau Tau Kok without any change of driver.  That was why PW1 and PW4 were able to identify D1.  The prosecution further said that D1 knew full well that their group was going there to carry out the attack with knives and metal poles. 

Evidence Against D2

Prosecution Witnesses

13.  Both PW1 and PW3 testified that they saw D2 near the scene shortly after the attack. 

D2’s Post Record

14.  D2, after his arrest, was said to have uttered these words which were repeated in the post-record, “Ah Ki (D1) drove me there, but I did not chop anyone”.^[4]  

D2’s 3^rd and 4^th VRIs

15.  In gist, D2, in his 3^rd and 4^th VRIs, said: while they were at the Pakistani Club, KK told him that he later would need to bring some people to the “temple”.  He asked but was not told why and he ignored KK.  Then KK took D2 aside, assaulted him to make him scared and told D2 to follow his instructions. 

16.  After the dinner, D2, as instructed, boarded D1’s car.  Nomi and KK also got on board.  While on board, KK told him again that he needed to take some people there.  D2 said he would not do it unless he was told the reason.  KK repeated that D2 needed to bring some people there and these people would carry “Ka Chaan”, meaning weapons, and they were to “beat or hit” some people there. 

17.  D1’s car later stopped at a location in Ngau Tau Kok which was about 5-6 minutes’ walk to the pavilion.  A white van which D2 believed carrying Sing Fai arrived.  Then Sing Fai, KK and others had a meeting.  D2 alighted from D1’s car one or two times to approach them but was threatened by Sing Fai and was sent back.  Sing Fai made further threats and told him to guide the people up the “temple” or they would “cut him” first. 

18.  The 7-seater then arrived.  D1 boarded the 7-seater and honked to signal people to get on board.  Sing Fai made D2 sit on the 7-seater and there were people carrying weapons.  KK made threats to D2 again.  He was very scared.  When D2 said he would not do it, D1, who was then the driver of the 7-seater, told him that Sing Fai and KK were dangerous people and he had to do what they said, otherwise they would kill D2 and his family. 

19.  D2 said he had no choice.  He then walked a little bit ahead.  After telling the position of the “temple”, he returned himself.  He later heard noises and entered a shop.  He saw the attackers running past the shop and he went home. 

20.  The prosecution relied on D2’s admission that he had guided the attackers, with knives and metal poles, to the playground to effect the attack; but asked the jury to reject the part when D2 said he was forced to do so because of the threats.

The Defence Case

21.  Both applicants elected to testify.  In respect of their VRIs, they both said that what was contained in the last two interviews was untrue and was the result of improper conduct of the police. 

22.  D1’s version, in summary, was that he had lent his car to Sing Fai and KK during the wedding banquet and he had not driven his car to the vicinity of the playground.  D1 later got back the car somewhere in Ngau Tau Kok.  He then gave a lift to D2 and Nomi, dropping Nomi off in Jordan and D2 in Ngau Tau Kok.  The victims, including the deceased, were his friends. 

23.  Likewise, D2 said in court that after attending the wedding banquet together with D1 and Nomi, D1 gave him a lift home, but D1 dropped him off in Ngau Tau Kok, saying that he had some urgent things to do.  While walking home, D2 heard screaming and shouting.  He became scared and entered a shop.  He saw people running past outside the shop and he encountered some of the victims.  The victims, including the deceased, were his friends. 

The Summing-Up

24.  The judge’s summing-up lasted 4 days and 8 handouts were distributed to the jury: (1) murder, (2) joint enterprise, (3) the case against the defendants, (4) wounding with intent, (5) wounding under section 19 of the OAPO, (6) assault occasioning actual bodily harm, (7) identification evidence; and (8) duress. 

25.  In the course of the summing-up, the judge said:

“ And just to summarise, now there is no evidence that either one of the defendants took part in actually attacking the victim group. In fact, Ms Crebbin tells you that it is not the case of the prosecution that the two defendants physically attacked the victim group, or indeed, Waqar, Jaskarn or Yasin.

So the only way you can be sure that anyone of the defendants are responsible for the acts or act which caused the deaths of Waqar and indeed, in the injuries of Jaskarn and Yasin, is on the basis of joint enterprise or joint responsibility.”^[5]

26.  After the jury had retired to deliberate, they asked a total of three questions in that evening and in the following morning which were dealt with by the judge having heard submissions from the parties.  The present applications mainly arise from the jury’s questions and the judge’s further directions. 

Questions from the jury and the directions

Question 1:

“If D1 or D2 knows the attack (with weapons) prior departing the club, get on the car and arrived the scene. After getting off the car but without performing the role, e.g. pointing the park, guilty or not?”

27.  The judge, after discussing with counsel, said^[6]:

“ … So basically, the question is the two defendants allowed them to be carried on the car knowing that the people were going to attack other people with weapons but the two defendants did not do anything, would they be guilty? So that is the question. Now, there are different scenarios.

Now, firstly, you have to decide who was driving the car. … who does the car belong? Now, say, if you are sure that the 1^st defendant was driving the car, knowing that the people were going there to carry out attack on other people, of course, you would have no difficulty to find that he was assisting those people to take them there. So if, say, 1^st defendant was not driving the car but if the car belongs to the 1^st defendant, the 1^st defendant allow other people to use his car to go to attack other people, again, it may be that you would have little difficulty to find that this was assistance given by the attackers.

Now, if the car did not belong to the 1^st defendant or also did not belong to the 2^nd defendant and both of them were not driving, the car was driven by somebody else, and D1 and D2 knowing that they were going to attack people, other people with weapons, allowed themselves to be carried on the car, then the matter will require very close scrutiny by you. You have to decide whether allowing oneself to be carried on a transport knowing that the people were going to perpetrate an attack to other people, amount to part of the joint enterprise. The concept here is encouragement.

Now, for joint enterprise. If somebody else encourages another person to do a crime, that will still make the person part of the joint enterprise. Say, for example, if you know that I am going to commit a crime, you tell me, “Oh, go ahead, do it. That’s very good decision. Go to do it.” Then, that may very well amount to encouragement.

… So the matter you have to consider is whether their presence in the vehicle is mere presence or amounted to encouragement. I have told you mere presence will not make the person part of the joint enterprise.

Now, for encouragement here, you have to be sure that D1 and D2, firstly, had the intention to encourage those people to carry out the attack. Say, if they just wanted to take a lift to go to that place, that is all, then that will not be encouragement. They must, first of all -- you must satisfy beyond reasonable doubt that when they were being carried on the transport, they had the intention to encourage those people to attack other people.

And the second question for you to consider is whether their presence in the car amounted to encouragement. So again, you have to be sure that their presence in the vehicle amounted to encouragement.

You must be sure of these two matters before you can find them part of the joint enterprise. Now, this is a very high standard of proof. So with such evidence, you have to be very, very careful in making your determination about whether this amount to encouragement according to the principles I have told you.

Then, of course, for the Defendant 2 here, there is no evidence he owned a car. There is no evidence he could drive a car. So I think the scenario of the car being driven by him or the car belong to him should not be, among things, you can find as proof beyond reasonable doubt here.

                  So, of course, after you -- if you should find beyond reasonable doubt that they were part of the joint enterprise, of course then you have to go to other matters which I have told you the prosecution have to prove beyond reasonable doubt in determining whether they are guilty or not guilty of the offences.”

Question 2:

“If just base on video 3 & video 4 (defendant’s voluntary statement). But without other facts/evidence, is it sufficient for the prove?”

28.  In answering this question, the judge first gave a summary of the 3^rd and 4^th VRIs of the two applicants.  He then directed the jury to consider the following.

29.  For D1, the judge said^[7]:

“ Now, based on this two interviews, the question you have to ask yourself is, after he had known that those people were going to perpetrate an attack on other people, he continued to travel in the car; he did not ask KK to stop the car; he did not ask those people to get off the car; he allowed the people to use the car to get to the destination. So again here, you have to decide whether such evidence would amount to assisting those people who are going to perpetrate the attack. That is a question for you to decide. You have to consider the whole circumstances to answer this question.

                  And of course, again here, you have to answer that two questions, did he had the intention to assist?  And did what he do or what he did not do amount to an act which make him part of the joint enterprise according to the principles of joint enterprise I have told you.  So that is a question for you to decide.”

30.  For D2, the judge said^[8],

“ … So before they set off to leave the Pakistani Club -- that says -- the 2^nd defendant came to know that they were going to attack people with “Ka chann [chaan]”. And then, they travelled on-board of the car of the 1^st defendant, driven by the 1^st defendant and with a number of people on-board. So they went to the Ngau Tau Kok. And then the 2^nd defendant also admitted that he guided the people to the playground for the people to attack the other group of people there.

   Now, on the strength of these two interviews of the 2^nd defendant.  Now, it may be that you should have little difficulty to come to the conclusion that he was part of the joint enterprise for the attack.  And of course, then you have to consider whether he knew that knives and metal pipes were to be used in the attack to consider the fourth matter in the murder charge I have told you and also other related matters in the other offences depending on your finding whether he knew knives and metal pipes were to be used.  So that will again be a question for you to decide.   

   After, say, if you should come to the conclusion that he was part of the joint enterprise, then you consider the fourth matter which I tell you about in the murder charge and similar matters which you have to consider for the rest of the charges, ie the intention of the 2^nd defendant and whether what happened was within his contemplation or he could foresee there was a real risk of what had happened, which I have given you directions already.  Yes.”

Question 3:

“Are we allowed to use the VRI of D2 to support the other witnesses’ evidence to prove D1 is guilty? (For example, D1 drove the Altezza and circled around the Ngau Tau Kok Playground in VRI of D2. This can support the evidence of Tyson and Jaskaran. Also, VRI of D2 mentioned D1 became the driver of 7-seater and this can explain why the CCTV of 11 Ting On Street showed the driver was wearing white shirt but not a black shirt/T-shirt that D1 should be wearing that night.) In this case, are we still using evidence of D2 to against D1 which is not allowed? Or we are just supporting other evidence which is fine?”

31.  For Question 3, counsel for D1 raised with the judge that D2 did not mention in his VRIs that D1’s car had circled the playground.  In fact, D2 specifically answered that he did not know anything about circling.^[9] Secondly, the claim that D1 became the driver of the 7-seater was said not to have been supported by the CCTV footage.  D1’s case was that it was a lie told by D2. 

32.  At the end, the judge gave the following direction^[10]:

“ For the third question, the simple answer is “no”. You can only use what a defendant says in his video-recorded interview against that defendant only. Not for any other purpose. So the answer is “no”. But here, certain thing which I have to remind you. Now, in fact, D2 did not say in his video-recorded interview that the car circled around in that area. In fact, that is D1 said, not D2. So that evidence can be used against D1, not D2.

And the second part. Now, the second part, again the simple answer is “no”. But you have to bear in mind that although it was said in the video-recorded interview of the 2^nd defendant as to what happened there, such scenario was not depicted in the CCTV. That is also a matter you have to take into consideration.”

D1’s Grounds of Appeal

33.  Mr Mitchell, counsel for D1 in the present application but not in the proceedings below, advances 6 grounds. 

(1)  Ground 1: failure to direct on the absence of evidence regarding D1’s knowledge of the weapons

34.  Ground 1 complains that, on the issue of joint enterprise, the judge failed to direct the jury that there was no direct evidence to prove D1’s knowledge of the weapons or to tell them that there was no evidential basis to draw such an irresistible inference. 

35.  Mr Mitchell submits that Question 1 is predicated on the basis that the applicants knew that weapons would be used in the attack before leaving the club.  And such knowledge would have been a crucial consideration in proving the elements of “intention” and “foresight” of the charges.  However, there was no such evidence in D1’s last two interviews.  Mr Mitchell also makes the point that the act of D1 running away upon seeing weapons would negate any suggestion of prior knowledge of the weapons.  The effect of this material omission in the judge’s directions might have been compounded by the fact that D2 had mentioned in his last two VRIs that those people would carry “Ka Chaan”, thereby misleading the jury that there was such evidence, whether directly or by way of inference. 

(2)  Ground 2: direction on encouragement

36.  Ground 2 contends that the judge erred by directing the jury to consider participation by way of encouragement as a passenger on board a vehicle when, during the trial, it had all along been the prosecution’s case that D1 had been an active participant in the joint enterprise, playing the role as the driver of the black car. 

37.  Mr Mitchell submits that the concept of encouragement was introduced for the first time in answering Question 1 and had widened the basis upon which D1 could be convicted beyond that of joint enterprise.  This new direction at such a late stage, it is suggested, could well have confused the jury and provided an alternative basis for a conviction in circumstances where they were otherwise unsure. 

(3)  Ground 3: failure to direct on material inconsistency regarding the identification evidence of D1

38.  By ground 3, Mr Mitchell complains that the judge erred in failing to give a specific direction on the material inconsistency between, on the one hand, what D1 said in his VRIs and the image captured by the CCTV (suggesting that D1 was not the driver of the black car), and on the other hand, the evidence of PW1 and PW4 (suggesting that D1 was the driver of the black car). 

39.  Mr Mitchell submits that based on Question 3, the jury seemed to have some doubt about the identification evidence of PW1 and PW4 and was attempting to resolve it by relying on D2’s VRIs which was not permissible.  Thus, it is suggested that the judge should have emphasised to the jury that there were material discrepancies which the jury needed to resolve having regard to the basis upon which the prosecution presented D1’s role in the joint enterprise. 

(4)  Ground 4: failure to direct on withdrawal from the joint enterprise

40.  It is contended by this ground that because D1 had said in his 3^rd VRI: “they have come with cleavers/choppers to fight so I didn’t even know, I got scared and ran away from there”^[11], the judge erred in failing to give a direction on the issue of withdrawal from the joint enterprise. 

41.  Mr Mitchell submits that even if it had been accepted by the jury that D1 shared with the others a common intention to “beat those people”, the jury should have been directed to consider whether by asking Sing Fai to stop the car, alighting from the car and running away, such amounted to evidence of D1 having effectively withdrawn from the enterprise (HKSAR v Lee Kwan-kong & Ors^[12] and HKSAR v Chu Yiu-keung^[13]). 

(5)  Ground 5: direction on the use of the discrepancies in D1’s and D2’s accounts

42.  This ground arises from the following part of the summing-up where the judge told the jury:

“ … when you look at the two interviews of the 1^st defendant and 2^nd defendant, you can see there are obvious discrepancies in the versions given by each one of them. Such discrepancies are of course a matter you may like to consider in your determination of the credibility and reliability of the evidence of the two defendants.”^[14]

43.  It is contended that while this direction was given in the context of credibility and reliability, it was akin to asking the jury to compare the statements made by co-defendants in order to determine the truth (Wong Wai-Man & Others v HKSAR)^[15]. 

(6)  Ground 6: lurking doubt

44.  By this ground, Mr Mitchell seeks to argue that because of the poor quality of the identification evidence and/or errors/failures/omissions in the judge’s directions, there is a lurking doubt as to the safety of D1’s conviction, rendering it unsafe and unsatisfactory in all the circumstances.  In particular, it is submitted that the judge had failed to give a warning concerning identification by two persons as per the relevant specimen direction,^[16] which would have warned the jury that it did not necessarily follow just because two persons had identified D1 as the driver of the black car that their identifications were correct. 

D2’s Grounds of Appeal

45.  Mr Mughal, also the trial counsel for D2, advances 7 grounds of appeal.  Grounds 1, 2 and 6 are identical or similar to D1’s grounds 1, 2 and 5 (“the common grounds”). 

(1)  The Common Grounds

46.  Apart from what has been canvassed by Mr Mitchell before this court, Mr Mughal makes the following additional points regarding the common grounds. 

47.  By ground 1, Mr Mughal emphasises that the entire prosecution case against D2 was based and premised on D2’s role of pointing out, signalling, guiding, or indicating the direction of the pavilion to the assailants (“the ascribed role”).  However, not only did this evidence come solely from D2’s last two interviews, the CCTV footage neither captured D2 nor the ascribed role when the assailants alighted from the 7-seater. 

48.  By ground 2, Mr Mughal adds that the judge had initially indicated that he had not made up his mind, but without informing counsel of the exact formulation of the further direction, the judge then directed the jury on participation by encouragement.  This late addition might have given the jury the wrong impression that they could convict D2 on the basis of mere presence which resulted in prejudice and disadvantage to D2. 

(2)  D2’s other grounds

49.  Mr Mughal submits that Grounds 3, 4, 5 and 7 are all interrelated:

-  Ground 3 complains that the judge failed to specifically direct the jury that there was a material contradiction between the ascribed role and the CCTV footage which did not depict any such role or the presence of D2. 

-  Ground 4 complains that the judge failed to direct the jury that on viewing the CCTV footage, the assailants seemed to know where to go without any guidance. 

-  Ground 5 complains that the judge failed to give the jury a specific direction on the material inconsistency between D2’s 3^rd and 4^th VRIs and the CCTV footage, warning the jury that they should place no weight on the contents of the VRIs.

-  Ground 7 complains that the convictions of D2 are unsafe and unsatisfactory having regard to the above material contradictions. 

50.  The common thread of all these grounds is the suggested importance of the CCTV footage and the allegedly inadequate direction from the judge on this matter.^[17]

Consideration

Common ground 1: sufficiency of evidence

51.  Very early in the summing-up, the judge had already told the jury^[18]:

“ I am now going to deal with the question of inferences. You have heard Ms Crebbin suggesting to you that you should draw inferences against the two defendants. So I have to tell you the meaning of drawing of inferences. Some facts can be proven by direct evidence. …

Some facts, however, may be established by indirect evidence when you are asked to draw inferences from facts which you find to have been proven beyond reasonable doubt. …

…

In this case the prosecution seeks to prove that the two defendants acted in joint enterprise with the attackers in murdering Waqar and causing really serious injuries to Jaskarn and Yasin. The prosecution says that from the facts they have proven you can draw the inferences that the two defendants were members of such a joint enterprise. The defence, of course, say on the other hand that there is insufficient evidence for you to draw such an inference.

…

Ms Crebbin says that the evidence of PW2, the lady, and PW6, the gentleman, which is not disputed by the defence, supports the evidence of Tyson in seeing a silver-grey Toyota Picnic seven-seater car driving past the playground twice. …

…

As I understand the position, Ms Crebbin further says that if the 1^st defendant and Ansib only happened to drive past the place, they would not have driven their cars so slowly and looked at the group of victims in the pavilion and, more importantly, would not have driven past there for two times. Ms Crebbin tells you that they were doing the reconnaissance before the attack. …

…

You may also like to consider the evidence of the presence of the 2^nd defendant at the scene shortly after the attack. …

…

   The prosecution also relies on the video-recorded interviews of the defendants as well as the post-record of the 2^nd defendant. … The prosecution is saying that not everything said by the two defendants in the video-recorded interviews are true.  Ms Crebbin asks you to treat their contents as evidence that the 1^st defendant drove Sing Fai, KK, Nomi and the 2^nd defendant to the scene for them to effect the attack on the victim group with knives and metal poles and that the 2^nd defendant guided the attackers to the playground for the same purpose.”

52.  Therefore, the fact that the prosecution had no direct evidence about the applicants’ participation in the joint enterprise was brought home to the jury right from the very beginning and the jury should have been under no illusion that there was any direct evidence.  The jury was told specifically to “consider whether you can infer from all the facts which you find to have been proven in this case as to the intention of the two defendants.”[19] (emphasis added)

53.  Although not described in these identical terms, it is clear that the prosecution relied on the following matters to invite the jury to draw the inference that the applicants were parties to the joint enterprise with full knowledge of the use of weapons by the assailants when they travelled to the playground:

(1)  the proximity in time and place of the appearance of the vehicles at the scene;

(2)  the proximity in time and place of the appearance of the applicants and the assailants at the scene;

(3)  the vehicles circling the place at low speed (the reconnaissance);

(4)  the open display of weapons by the assailants when alighting from the 7-seater; and

(5)  the incriminating statements respectively made by the applicants in the VRIs. 

54.  If accepted by the jury, these matters could provide a very solid foundation for the prosecution’s suggested inference for the jury was entitled to consider why else would the assailants and the applicants act in the way they did.  Therefore, for my part, I do not agree with Mr Mitchell and Mr Mughal that there was no, or an insufficient, basis to arrive at the inference contended for.  On the evidence adduced, the jury was fully entitled to draw the irresistible conclusion that the applicants, at the time, were acting pursuant to a joint enterprise. 

55.  Concerning Mr Mitchell’s worry that the jury might have misused D2’s reference to “Ka Chaan” in his VRI against D1, I should point out that, throughout the summing-up, the judge had repeatedly told the jury that the cautioned statements of a defendant could not be used against another defendant, saying, at one stage, that, “You have been told this again and again.  I think you may have felt sick to hear that again but this is important.”^[20]  In the circumstances, there is simply no basis to suggest there was a risk that, despite such strong and repeated reminders, the jury would not follow the direction of the judge. 

56.  In short, given the evidence and the judge’s early and clear direction about the drawing of inference, I do not consider this ground to be reasonably arguable. 

Common ground 2: the late direction on encouragement

57.  For easy reference, I repeat Question 1 below which relates to this common ground:

“ If D1 or D2 knows the attack (with weapons) prior departing the club, get on the car and arrived the scene. After getting off the car but without performing the role, e.g. pointing the park, guilty or not?”

58.  Firstly, it is clear that Question 1 was formulated with an important assumption: “If D1 or D2 knows the attack (with weapons) prior departing the club, …”.  At trial, parties agreed that the prosecution case was one of inference and there was no direct evidence concerning the applicants’ knowledge of the use of weapons prior to their departure from the Pakistani Club.  In the circumstances, it would appear to me that this assumption might actually be the conclusion which the prosecution asked the jury to reach. 

59.  To elaborate further, if the jury was sure, from the other proven facts, that D1 or D2 knew about the use of weapons when boarding D1’s car and that was why he got on it to travel to the scene, intending to play his role pursuant to the common agreement, then the jury should have no difficulty in finding the joint enterprise proved against that applicant. 

60.  On the other hand, if the jury was not sure about the applicants’ intention and their participation in the joint enterprise, then in this particular case, it would seem to be of little use to the prosecution that the applicants had travelled together to the scene in D1’s car but had otherwise done nothing. 

61.  Therefore, I find it arguable whether the judge, when dealing with Question 1, should have reminded the jury that there was no direct evidence about the assumption they made, thereby focusing their minds on the joint enterprise inference contended for by the prosecution instead of giving the new and further direction concerning “encouragement and assistance” in the way he did. 

62.  Secondly, parties agreed at this hearing that, in the present case, if reliance was to be placed on accessorial liability (putting aside the question of late introduction), then the case before the jury should be one of providing assistance where the applicant was not present at the time when the offence was committed because there was no evidence that D1 or D2 was there together with the assailants when the attack took place. 

63.  The relevant part of the 2020 revision of the Specimen Directions in Jury Trials[21] reads,

“A.              Aiding and abetting

(I)               Where the defendant is not present at the scene, but provides assistance

…

Before you may find the defendant guilty of the offence charged, the prosecution must make you sure that:

1.  the offence was committed by P; and

2.  the defendant was aware in advance that the offence was to be committed; and

3.  the defendant intended to assist the commission of the offence; and

4.  the defendant in fact assisted in its commission. 

…

(II)             Where assistance is provided by presence and encouragement

…

Before you may convict the defendant of this offence, the prosecution must prove:

1.  that P committed the offence of […]; and

2.  that the defendant was present at the scene when P committed the crime; and

3.  that by his presence / words / conduct, the defendant encouraged P to commit the offence; and

4.  that the defendant provided that encouragement intentionally.”

64.  It is immediately apparent from the above that what is to be proved in a case of accessorial liability would depend on whether the defendant is or is not present at the scene.  If, as accepted by counsel at this hearing, the prosecution case was that both D1 and D2 were not present at the actual scene where the offences took place, then it would appear that the judge did not direct the jury in the terms of the Specimen Directions and did not ask them to consider how the applicants had “in fact assisted” in the commission of the offences.

65.  It would be recalled that what the judge said, in the course of the further direction, was, “Now, for joint enterprise.  If somebody else encourages another person to do a crime, that will still make the person part of the joint enterprise.”; “…you have to be sure that D1 and D2, firstly, had the intention to encourage those people to carry out the attack.”; and “… their presence in the vehicle amounted to encouragement.”[22]

66.  The above direction would seem to have amalgamated the earlier joint enterprise direction with a direction based on “presence and encouragement” when it was common ground that D1 and D2 were not present at the pavilion when the assault took place. 

67.  Further, the jury had not been told by the prosecution as to how, by remaining on board the black car, D1 or D2 “had in fact assisted” in the commission of the attack at the pavilion by the assailants who were carried to the scene in another car, the 7-seater. 

68.  Therefore, in my assessment, it is arguable whether the judge’s further direction was legally correct and whether it was permissible for the judge to so direct the jury on the facts of this case. 

69.  Added to the above observations is, of course, counsel’s complaint that the further direction had come at the eleventh hour without affording the applicants an opportunity to adequately deal with the matter. 

70.  Before leaving this ground, I should mention two further matters.

71.  Firstly, Ms Crebbin, prosecuting counsel at trial, said the following during the exchanges with the judge when trying to make clear the prosecution’s position concerning the applicants’ “mere presence”:

“MS CREBBIN: …: For example, in relation to D2 for the moment. If he knows there are weapons, he knows there is an attack, and I think your Lordship yourself said it to the jury one stage in your summing-up, ‘If you believe he knew that when he was going along with them, knowing that it was going to happen, if you believe he was then part of that group to do that, then he can still be guilty even if he doesn’t actually point them out.”[23]

…

“MS CREBBIN: My Lord, what this question seems to be saying is it before they get into the car and go off, they both know that there’s going to be attack with weapons and they still get in the car. It depends on why they think they went into the car.

COURT: Unless you construe that as encouragement…

MS CREBBIN: Well, my Lord, that…

COURT: …otherwise, I…

MS CREBBIN: …all I’m saying is do they believe…

COURT: …it’s difficult to say that they are taking part.

MS CREBBIN: …yes, it would be for the jury, in my submission, to find out in their own deliberation on the evidence.”[24]

…

“MS CREBBIN: Yes, I understand. That’s what I’m saying. I think, my Lord, it’s obviously is a jury decision but if they just think he’s merely going along with the ride and have no intention of joining in, that’s mere presence. If they believe he gets in the car and goes with them because he’s part of it, effectively encouragement, that’s why he knows, then that would be a different story. Depends on what basis -- it must be their decision on what basis they think he got in the car on the facts that they find, I mean, from the facts in that question.

COURT: I will consider that but in my initial view…

MS CREBBIN: Yes.

COURT: … is that just travelling on the car, even though they knew there was going to an attack with weapons, if they only travel in the car and doing nothing, my initial thinking is that it’s difficult to amount to encouragement or taking any part.

MS CREBBIN: Well, my Lord, I -- if they think he’s just going to sit there and watch the view, then fine, and they’re entitled to find that. But if they think he’s going along as part of the group, encouragement is not necessarily need.”[25]

…

“MS CREBBIN: I’m only asking, my Lord. I’m submitting that it should be explained to the jury that clearly that mere presence or just getting in for a ride or not knowing why he got in, he cannot be found guilty. But if they are sure or on all the evidence that he was there and had the intention to join this enterprise, knowing what was going to happen, and he was there to encourage or assist in whatever way, then he can on -- in law be found guilty. That’s the only point that I’m trying to make, my Lord. And it -- but it’s very much a jury question.” [26] (emphasis added)

72.  Although it might be unfortunate that Ms Crebbin had used the words “encourage or assist in whatever way”, it is clear from these exchanges that Ms Crebbin did not depart from the prosecution case of joint enterprise.  Her emphasis was: if the jury was sure that the applicants joined the ride as parties to the joint enterprise and took part in it, playing whatever role that was, or in Ms Crebbin’s words “encourage or assist in whatever way”, then the jury was entitled to find the prosecution case proved even if the applicants did nothing on arrival.  Therefore, Ms Crebbin’s focus was still on the joint enterprise: whether the applicants boarded the car pursuant to the joint enterprise or whether they were not parties to it but merely getting in for a ride. 

73.  Secondly, I note the following exchanges between the judge and trial counsel when the judge was reminding the jury of the contents of the applicants’ VRIs in dealing with Question 2:

“Jury present:

COURT: … And then, just to remind me, the conversation about ‘Ka chaan’ when did that happen? On-board of the vehicle or in Pakistani Club?

MR MUGHAL: Pakistani Club.

COURT: In Pakistani Club?

MR KHOSA: Pakistani Club.

COURT: Yes. So because I just to make sure the facts are correct. So before they set off to leave the Pakistani Club -- that says -- the 2^nd defendant came to know that they were going to attack people with ‘Ka chann [chaan]’. And then, they travelled on-board of the car of the 1^st defendant, driven by the 1^st defendant and with a number of people on-board. So they went to the Ngau Tau Kok. …”[27] (emphasis added)

74.  However, what is clear is that, in D2’s 3^rd VRI, D2 said he was only told ‘you will take along persons with you over there and in their hands they will have “Ka Chaan”’ while they were on board D1’s vehicle and not before.  Not at the Pakistani Club.[28] 

75.  When asked by this court, parties agreed that the answer provided to the judge by both trial counsel was incorrect and did not accord with the contents of D2’s 3^rd VRI.  This error, to say the least, was most unfortunate but given that the jury had got the transcripts of the VRIs, there were opportunities for them to find out this slip during their further deliberation and I shall say no more. 

Common ground 3 (D1’s ground 5 and D2’s ground 6): discrepancies in the accounts given by the applicants in their VRIs

76.  The context in which the impugned direction arose should first be highlighted.  It was at the beginning of the summing-up and the judge was there telling the jury that the prosecution case was one of joint enterprise and that the prosecution relied, inter alia, on the applicants’ VRIs. The judge then briefly summarised the relevant parts of the VRIs. 

77.  Since both applicants contended that their first two interviews were given voluntarily and the contents were true whereas the last two were the opposites, the judge said,

“ Mr Khosa and Mr Mughal further say that what the 1^st defendant and the 2^nd defendant said in their third and fourth video-recorded interviews seem like two different stories and cannot both be true. … They submit that the third and fourth video-recorded interviews of the two defendants were not given by them voluntarily and they have been coached what to say by the police and had been subject to mistreatment by the police.

Regarding this issue, you may also like to take into consideration what the 1^st and the 2^nd defendant said in their first and second video-recorded interviews. They both say that what they said in these two interviews were said by them voluntarily and are true. But of course, when you look at the two interviews of the 1^st defendant and the 2^nd defendant, you can see there are obvious discrepancies in the versions given by each one of them. Such discrepancies are of course a matter you may like to consider in your determination of the credibility and reliability of the evidence of the two defendants.

In this connection Mr Khosa and Mr Mughal say that the two defendants were not given any documents to refresh their memories during these two video-recorded interviews and they had difficulties to remember what happened on the night in question. They are saying that that affected the accuracy of what the first and second defendant told the police in the first and second video-recorded interviews. Of course, whether to accept their submissions is a matter for you.”[29] (emphasis added)

78.  If read in context, it is apparent that when the judge said “Regarding this issue”, the issue was whether, as argued by the defence, there would be “two different stories” if the two applicants were giving true statements voluntarily.  It was then that the judge referred to the 1^st and 2^nd VRIs which the applicants said were voluntary and true and said, “But of course, when you look at the two interviews of the 1^st defendant and the 2^nd defendant, you can see there are obvious discrepancies in the versions given by each one of them.”  Clearly, the reference to “discrepancies” was a reference to “internal discrepancies” and the judge was merely assisting the jury to consider whether a voluntary account would necessarily be flawless.  Such was what the judge meant was made even clearer when he continued to refer, “In this connection Mr Khosa and Mr Mughal say that the two defendants were not given any documents to refresh their memories during these two video-recorded interviews … that affected the accuracy of what the first and second defendant told the police in the first and second video-recorded interviews”. 

79.  In my assessment, the jury could not have misunderstood the relevance and the limited use of the “discrepancies”.  Neither would they have engaged in the impermissible line of reasoning suggested by counsel.  This ground is plainly unarguable and, with respect, should not have been raised. 

D1’s ground 3

80.  This ground relates to the CCTV footage[30] which seemingly captured the driver of the black car wearing a light coloured upper garment whereas D1 was wearing a dark coloured shirt on that day.  Thus, there were material discrepancies, so the argument goes, between, on the one hand, the identification of D1 by PW1 and PW4 as the driver of the black car and, on the other hand, the CCTV footage as well as D1’s statement that he had only driven the car for a very short period of time with Sing Fai then taking over. 

81.  My first observation in relation to the complaint is this: according to PW1 and PW4, they saw D1 driving the black car when the car was travelling along Ngau Tau Kok Road before the attack.  In other words, when PW1 and PW4 were making those observations, they were talking about Ngau Tau Kok Road, not Ting On Street which was depicted in the footage, and at a time before the attack, not at any other stages. 

82.  My second observation is that from the material available, the attention of PW4 had not been drawn to the colour of the upper garment as depicted in the footage taken of Ting On Street and he was not asked, under cross-examination, why the driver of the black car so depicted was not wearing the black T-shirt that he described.  Perhaps, the reason for defence counsel not having done so was because this footage actually depicted a different road[31]. Counsel might therefore have concluded that there was no point in challenging the witness’s identification evidence by showing him a footage which was taken at a different place and at a different time from the place and time which the witness said he made the identification. 

83.  Following from the second observation, my third observation is that this evidence of the light-colour upper garment was only brought out at the re-examination stage of D1 when he agreed with his counsel’s suggestion that the driver was wearing “light colour upper garment” whereas he himself wore a black shirt at the Pakistani Club and “he had not changed it that night”[32], thus putting forth the assertion that he was not the driver of the black car. 

84.  Unless this court has missed out anything relevant to this ground, it is not without regret the fact that the footage depicted Ting On Street, and not Ngau Tau Kok Road, was not highlighted for attention, leaving it for the court to find out.  If the argument is that although the footage showed a different place and a different time, the driver could not have been changed within such a short duration, then it is expected that, at least, the primary facts are properly set out with the court’s attention drawn to them. 

85.  For the reasons I have mentioned and when the evidence is assessed in context, I do not consider the footage of Ting On Street to have presented any material inconsistency.  Even if there was such inconsistency, the matter was covered in the judge’s summing-up and was one which could properly be left for the jury to resolve.  I do not find this ground reasonably arguable. 

D1’s ground 4: D1’s withdrawal from the joint enterprise

86.  This ground relates to the issue of withdrawal and is premised upon the exculpatory assertions made by D1 in his last two VRIs wherein he told the police that when he saw the assailants armed with knives and iron bars, he was scared and told Sing Fai to stop the car.  D1 further said that he then got off and ran away to hide himself. 

87.  Mr Mitchell, when asked by this court, accepted that this issue of withdrawal had never been raised at trial. 

88.  The principles concerning withdrawal from a joint enterprise were summarised in the two authorities (HKSAR v Lee Kwan Kong & Ors[33] and HKSAR v Chu Yiu Keung[34]) relied on by Mr Mitchell.  However, since D1’s case at trial was that he was never a party to the joint enterprise, I find the case of Gallant[35] more instructive.  The appellant in Gallant was convicted of murder on the basis of a joint enterprise with his co-accused.  The appellant, however, said that while he had sprayed the deceased’s face with gas and had punched/kicked him, he had then left the scene before anyone else was involved.  In short, the appellant denied that he was a party to the joint enterprise. 

89.  On the judge’s alleged failure in Gallant to direct the jury in accordance with the principles concerning withdrawal, Latham LJ, when giving the judgment of the English Court of Appeal, observed that,

“14. In one sense, the criticism is valid. The judge’s summing up was not a complete statement of the legal position. This is an extremely good example of the fact that a summing up does not have to be a complete statement of the law. It has to be tailored to the particular issues in the case. In this case, the appellant never claimed that he had withdrawn from the joint enterprise. He denied that there was any joint enterprise at all. The real issue was whether or not there was a joint enterprise. That was the context of the judge’s direction which, as we have said, was agreed as the appropriate direction by all counsel. …” (emphasis added)

90.  Similarly, in the present case, D1 never suggested that he had withdrawn from the joint enterprise.  Instead, his case was that he was never a party to it.  When D1 testified at trial, he told the jury that he was not at the scene and he did not drive the black car there.  In respect of the statements made in the 3^rd and the 4^th VRIs, D1 said they were made as a result of the police’s improper conduct and were untrue.  In other words, D1 never adopted as his evidence the statements concerning the alleged withdrawal. 

91.  Viewed from another angle, those assertions were not made under oath and were exculpatory in nature. The jury was therefore entitled to give little or no weight to such.  Even assuming that those statements could be properly given weight by the jury, I do not consider it necessary for the judge to give a direction on withdrawal when the evidence is assessed as a whole.  It should be remembered the prosecution case of joint enterprise was that D1, pursuant to the agreement, played the role of driving the black car to the scene and conducting the reconnaissance.  Therefore, even if D1 later asked the car to be stopped and ran away to hide himself, such, in my view, could not have amounted to a sufficient basis for the jury to consider the issue of withdrawal, bearing in mind that this was, according to the prosecution, a pre-planned attack and not a spontaneous one.[36]

92.  I do not find this ground reasonably arguable. 

D1’s ground 6: lurking doubt

93.  The specific complaints relied on in this general ground have been dealt with above except the Turnbull direction.  In this respect, it should be noted that the judge gave a very detailed direction on identification evidence, cumulating in a full 7-page transcript[37] and the jury was given a handout on this topic.  Not only were the essential matters referred to in Turnbull reproduced in the handout, the judge had actually gone through each of them with the jury, drawing to their attention the evidence adduced and highlighting for them the defence’s criticisms. 

94.  When the entirety of the judge’s direction on identification evidence is considered, I do not find it a material omission even though he did not specifically mention that an identification made by 2 persons could also be erroneous.  Insofar as the inconsistencies, including the suggested internal inconsistencies, in the evidence given by PW1 and PW4 are concerned, such had also been appropriately covered in the summing-up and I do not see any basis for criticism. 

D2’s grounds 3, 4, 5 and 7: the contradiction between the CCTV footage and D2’s ascribed role

95.  These grounds primarily relate to the CCTV footage which did not capture D2, nor his guiding or pointing out the way to the assailants.  Thus, so the argument goes, the judge should have given a strong specific direction to the jury to place no weight on the interviews. 

96.  Although there was no dispute that the CCTV footage did not capture D2’s presence or his ascribed role, the evidence in this case is very different from that relied on by Mr Mughal[38] where the witness had identified in court another defendant as the one who mounted the attack and testified that such was the one whom he had identified earlier in the identification parade when, in fact, he had picked up the applicant in the parade.  It was this glaring discrepancy which led the court in Lam Tsz Wah[39] to conclude that, “In the circumstances, the weight of Kwok Kwok-ming’s evidence, and thus of the identification evidence as a whole, was so reduced that the jury should have been told to disregard it entirely.”

97.  In the present case, what D2 said in the 3^rd VRI about his role was, in summary, that he had been threatened by Sing Fai and KK, and had been made to sit with the assailants on board the 7-seater.  He was forced to show the assailants the way to the “temple”.  As a result, he “went a bit forward”, “went a little bit ahead” and said to the assailants, “that is the Temple, go by yourself”[40]. Then, he “got scared and returned”, suddenly hearing noises and close to him was a shop into which he went.[41]  In his 4^th VRI, D2 said, “when the vehicle was still in motion”, “I took them a little bit ahead then I returned back after telling them, that location I got scared and returned, I did not go further ahead with them.”[42] D2, later on, also said that he did not remember whether or not he was standing there, saying to the assailants “that is the temple” although he thought he did.[43]

98.  In short, D2 was imprecise as to the locations and the relative positions.[44]  He did not mention clearly whether or not he and the assailants alighted together from the 7-seater when he pointed the way and the assailants then immediately charged forward to the pavilion.  Nor did D2 describe his position relative to the 7-seater when it was “in motion” and when he was taking them “a little bit ahead”.  When D2 testified in court in relation to his 2^nd VRI, he also said that he did not understand the maps shown to him^[45]. 

99.  In my view, how the apparent lack of clarity as to D2’s descriptions of locations, relative positions and distances would affect the jury’s consideration of the relevant issues was a matter for them.  The suggested contradiction would not warrant a specific direction from the judge to tell the jury to completely ignore the admissions made by D2 in relation to his role.  Further, as I understand it, no application to exclude D2’s said admissions was made on this basis at trial. 

100.  It should also be mentioned that, in the summing-up, the judge told the jury that the footage did capture the assailants, after alighting from the 7-seater, walking up and down the road before crossing Ngau Tau Kok Road.  Whether or not this was consistent with the assailants requiring guidance to the pavilion would, in my assessment, be a jury matter and the judge was entitled to say, “Does this show that those people knew their way to the playground … is for you to decide”^[46].  When saying this, the judge was cautious to remind the jury that D2, however, was nowhere to be seen in the clips. 

101.  I therefore do not consider these others grounds of D2 to be reasonably arguable. 

Conclusion

102.  For the reasons given above, I grant leave in respect of common ground 2 and D1’s general ground 6 insofar as it relates to this common ground, but I refuse leave on all the other grounds advanced by D1 and D2. 

103.  The applicants have the right to renew their applications before the Court of Appeal in relation to the rejected grounds but a warning is now given to them that should they do so, and should the Court of Appeal find no merit in respect of their renewal applications, the Court of Appeal may order loss of time which the applicants have spent in custody pending their appeals.