HKSAR v. LAM SIU FUNG AND ANOTHER

CACC 326/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 326 OF 2012

(ON APPEAL FROM HCCC NOS. 154 and 433 OF 2011)

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J U D G M E N T

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

1.  The applicants sought leave to appeal against their convictions after trial by Deputy High Court Judge McMahon and a jury on 8 August 2012 of the murder of Poon Ka Yan on 5 October 2008, contrary to Common Law. The 1^st applicant was convicted by the unanimous verdict of the jury, whereas the 2^nd applicant was convicted by a majority of 5 to 2. At the hearing, we said that we would give our judgment in due course. That, we do now.

Background

2.  The conviction on 22 April 2010 of the 2^nd applicant for the murder of Mr Poon Ka Yan (“the deceased”) after a trial before Line J and a jury was quashed by this Court on 22 November 2011 and a re-trial ordered[1]. The conviction was quashed because of an unfortunate error in translation of a very important question posed by the judge of the 2^nd applicant in his testimony.  The 1^st applicant had been arrested on 19 January 2011.  The 1^st and 2^nd applicants stood trial on consolidated indictments, the Particulars of Offence of which alleged that they, together with other persons, murdered the deceased on 5 October 2008.

Notice of Motion

3.  By a Notice of Motion application was made on behalf of the 2^nd applicant to adduce evidence before this Court pursuant to section 83 V (1)(a) of the Criminal Procedure Ordinance, Cap. 221.  The nub of that evidence was a report dated 6 September 2012 by Deputy Judge McMahon to the Chief Executive, pursuant to section 67 B (2) of the Criminal Procedure Ordinance.  That provision enables a judge who has imposed an indeterminate sentence of imprisonment upon a person to make a report in writing to the Chief Executive specifying matters relating to that person or the offence, so that a record is available for the purpose of reviewing that sentence in the future.

4.  No doubt, in recognition of the difficulty that lay in the way of persuading this Court to accept that evidence, insofar as it expressed the judge’s opinions of the basis upon which the jury might have reached its verdict in respect of the 2^nd applicant, Mr McCoy indicated in his written submissions that he sought only “to adopt (the Deputy Judge’s) analysis of the real factual and legal issues at the trial”.

5.  As Li CJ and Ribeiro PJ observed in their joint judgment, with which judgment the other judges agreed, in Lau Cheong & Another v HKSAR [2] the purpose for which a judge writes a report pursuant to section 67 B (2), is so that it is available for reviewing sentence in the future:

“ Where a mandatory life sentence is imposed, if the judge is of the opinion that there are matters relating to the person or the offence that should be recorded for the purpose of reviewing sentence in the future, the judge must make a report in writing specifying those matters: Criminal Procedure Ordinance, s. 67 B (2). Any report made by a judge would be of assistance in reviewing the sentence.”

6.  This Court is not concerned with sentence.  Rather, it is concerned with the safety of the 1^st applicant’s conviction of murder by verdict of the jury.  Opinions expressed by the judge in the context of recording material to be available for a review of sentence in the future are plainly not admissible in the hearing of the application for leave to appeal against conviction.  Accordingly, we were not persuaded to admit the evidence and refused the application at the hearing.

THE TRIAL

7.  There was no dispute that shortly before 04:00 in the morning of 2 October 2008 the deceased was attacked by a number of young men in the McDonald’s Restaurant in the Tin Shui Wai Estate Shopping Centre.  Both of the applicants were amongst the group of young men.  Those events were captured on CCTV and lasted about 30 seconds.  Although the young men were unarmed on their entry to the restaurant, a rubbish compacting rod and a metal umbrella stand were used by some of them to attack the deceased, causing him very serious injuries to his head from which he died shortly before midnight on 5 October 2008.

The prosecution case

8.  It was the prosecution case that the applicants had entered the restaurant, together with the other young men, with a shared intention to confront and, if necessary, to attack the deceased.  It was their case that the 1^st applicant had struck the deceased a number of violent blows with the metal rod during the assault, thereby demonstrating his intention to cause the deceased really serious injury.  For his part, the 2^nd applicant had struck the deceased twice with the metal umbrella stand.  In support of the latter allegation the prosecution relied upon the evidence of Cheung Kwok Ho.  It was an admitted fact that, having pleaded guilty to the offence of manslaughter in relation to the death of the deceased on 23 April 2010, Cheung Kwok Ho was sentenced to 4 years’ imprisonment.  Also, the prosecution relied upon CCTV film of the attack.

9.  Cheung Kwok Ho testified that at about 10 p.m. on 1 October 2008 he had been involved with others in a quarrel between the deceased and his friends in the open square outside the McDonald’s Restaurant in the Tin Shui Estate Shopping Centre.  Later, at the Choi Hung Bar someone had suggested that they go looking for the persons on the other side of that quarrel.  As a result, he and others had travelled in two cars to the McDonald’s Restaurant.  There, he had seen the deceased near the cashier serving counter in the restaurant holding a metal rod.  He said that the 1^st applicant went up to the deceased, after which he saw ‘Ah Man’ rush past the 1^st applicant and wrestle with the deceased for possession of the metal rod.  He and others rushed forward and attacked the deceased.  For his part, he kicked him and used the plate at the top of the umbrella stand to hit the deceased.  The 1^st applicant used the metal rod to hit the deceased and also did so whilst the deceased was lying on the ground.

10.  Cheung Kwok Ho said that the 2^nd applicant, who was about ½ to 1 metre away from him, picked up the umbrella stand and struck the deceased several blows to his upper body as he lay on the ground.  He confirmed that CCTV film depicted the 2^nd applicant as he assaulted the deceased in that manner.  Furthermore, he said that at the end of the assault on the deceased Ah Man was depicted on the CCTV film delivering blows to the deceased with the umbrella stand as he lay on the ground.

CCTV

11.  There was no dispute that the 1^st applicant and the deceased are depicted in the CCTV film at 03:57:57 confronting each other in the counter serving area of the restaurant.  Each is seen to advance towards the other.  The deceased is seen to be holding the metal rod part of the rubbish compactor in his right hand, whilst gesticulating towards the 1^st applicant with his left hand.  The 1^st applicant gained access to that area having climbed up a flight of six or seven stairs that led from the doors to the restaurant at the lower-level entrance.  Then at 03:58:00 the deceased is seen to take several steps backwards as the 1^st applicant continues to advance slowly towards the deceased.  At about 03:58:02 a second person is seen to reach the level of the counter serving area, having climbed up the stairs.  At about 03:58:05 Ah Man is seen doing likewise, after which he is seen to run past the 1^st applicant and to grapple with the deceased.  Then, the 1^st applicant and five other young men, who had also reached the counter serving area, are seen to advance and surround the deceased.

12.  There is no dispute that the 1^st applicant is seen delivering four separate blows with a metal rod to the area where the deceased lay on the floor.  Those blows are to be seen on the CCTV film in a period of about 10 seconds commencing at 03:58:17. At about 03:58:22 the person designated at trial as ‘F’, whom Cheung Kwok Ho identified as being the 2^nd applicant, is seen holding the umbrella stand with which he is seen to deliver a blow with its base to the general vicinity in which the deceased was lying.  Immediately afterwards, at about 03:58:24, the 1^st applicant is seen delivering a blow to the same general vicinity with the metal rod.  He did so from a position opposite ‘F’, so that the deceased lay between them.  Then, ‘F’ is seen to retrieve the metal umbrella stand from where it lay on the floor and, at about 03:58:26, deliver another blow with its base to the general vicinity in which the deceased was lying.

13.  Finally, at about 03:58:28 Ah Man is seen to retrieve the umbrella stand from the ground, with which he delivered two blows in succession with its base to the general area where the deceased lay on the ground at about 03:58:31 and 03:58:33 respectively.  The 1^st applicant is seen running towards the stairs, sideways onto the deceased as he lay on the floor to his right at about 03:58:28.  Several others in the group of young men are seen leaving at the same time.  At 03:58:30 the 1^st applicant is to be seen running down the stairs with his back to the counter serving area, in which the deceased is to be seen lying on the ground and Ah Man is seen holding the umbrella stand above his head.  At 03:58:35 Ah Man is seen running towards the stairs in the restaurant, by which time none of the other young men are to be seen in the CCTV film.

14.  Dr Chiao, a forensic pathologist testified that the deceased suffered a depressed, comminuted fracture of his skull.  There was related extensive damage to the brain and intracranial haemorrhaging.  Although he testified that the injury could have been inflicted by the metal rod, he said that was far more likely that it was caused by the umbrella stand.

The defence case

15.  The 1^st and 2^nd applicants gave evidence in the defence case.  Each of them accepted that they had gone to the immediate vicinity of the McDonald’s Restaurant with a group of young men.  They travelled there by two cars from Tin Sum village.  Earlier, they had been together with others in the Chui Hung Bar.  They went there to get something to eat.

16.  The 1^st applicant said that he entered the McDonald’s Restaurant first.  The deceased, who was carrying a metal rod, spoke to him loudly.  ‘Ah Man’, one of the persons in the applicants’ group, ran from behind the 1^st applicant and wrestled with the deceased.  Others rushed forward as well.  The deceased struck the 1^st applicant in the stomach with the metal rod.  The 1^st applicant said that as a result he was angry and that he had struck the deceased a total of four blows to his leg, back, feet and arms.  He did not intend to cause the deceased any serious injury.  He did not see anyone pick up the umbrella stand and use it to assault the deceased.  Having heard the deceased cry out, “Don’t hit!”, the 1^st applicant said that he struck a deliberate blow to the ground between the deceased and one of the attackers who was using a bread tray to hit the deceased and then dropped the metal rod onto the floor, enjoining his group, “Go, don’t hit any more.”  He said that his deliberate blow to the ground was the one in which he was captured striking a blow in the CCTV film at 03:58:26.  Then, he left the scene of the attack.  He and others went to the Chui Hung Bar.

17.  The 2^nd applicant said that he was not aware of any earlier quarrel with any other people.  He had travelled to the McDonald’s Restaurant with others in order to eat.  He did not expect there to be any violence.  He did not know the deceased and did not know that he was inside the McDonald’s Restaurant.  He saw the deceased holding a metal rod.  Ah Man dashed forward towards the deceased and a fight ensued.  The deceased tried to strike Ah Man, so the 2^nd applicant went forward with others.  Together they surrounded the deceased.  Because the deceased kicked him, the 2^nd applicant returned kicks twice as the deceased squatted down.  The blows landed to his waist.  As the deceased was lying on the ground, he delivered a further two kicks, again to his waist.  He saw the 1^st applicant hit the deceased’s arm with a rod and others hitting him with bread trays.  He was scared and wanted to go.  He retreated slowly.  He saw Ka Ho, whom he said was the person designated as ‘F’ at the trial, use the umbrella stand and hit the deceased blows to his legs.  For his part, he said that he was the person designated as ‘E’ at the trial.  He did not want to take part in what was happening, so he left.  The 2^nd applicant denied that he had picked up the umbrella stand and delivered blows to the deceased as he lay on the ground.

18.  The 1^st applicant testified, in cross-examination by counsel for the 2^nd applicant, that the person depicted in the CCTV film striking a blow with the umbrella stand at 03:58:23 was Ka Ho.  Furthermore, he said that both Ka Ho and Ah Man had told him after the attack that they had each used the umbrella stand to attack the deceased.

19.  Dr Beh, a forensic pathologist, called in the defence case testified that it was his opinion that the fracture to the skull of the deceased had been caused by a blow delivered with the base of the umbrella stand and not the metal rod.  He was of that opinion not only because of the relative weight of the two implements, the umbrella stand weighing 12 kg, but also because of the circular base of the umbrella stand and the shape of the injury to the deceased.

GROUNDS OF APPEAL AGAINST CONVICTION

Verdict

1^st applicant

20.  Mr McCoy SC submitted on behalf of the 1^st applicant that no lawful verdict of murder was returned by the jury, given what it was contended was the conflated formal question posed by the judge’s clerk of the foreman of the jury in the process of obtaining the verdict of the jury.  It was submitted that the question, “..wrongly blended murder and manslaughter into one formal question, such that the single verdict of “Guilty” was not an unequivocal verdict of guilty of murder.”  It was contended that a verdict ought to have been returned in respect of the count of murder before there was any mention of manslaughter.  It was submitted that the effect was that the jury returned a verdict of guilty against the 1^st applicant, “for the alternative charges of murder or manslaughter: a concurrent impossibility.”  That was a material irregularity, such that the conviction of the 1^st applicant for the offence of murder ought to be quashed.  Mr McCoy relied on the judgment of the Court of Appeal of New Zealand in R v Mohetuki [3] as supporting the proposition that an ambiguous verdict was a material irregularity which could not be cured by the application of the proviso. [4]

2^nd applicant

21.  It was submitted that the material irregularity in the verdict of the jury in respect of the 1^st applicant enured to the benefit of the 2^nd applicant.  It was contended that the verdict of the jury in respect of the 2^nd applicant may have been reached on the basis that the jury considered that the 1^st applicant was the sole other person constituting a joint enterprise with the 2^nd applicant at the time that the 1^st applicant used the metal rod to strike the deceased and that was the time at which the fatal blow occurred.  In those circumstances, the quashing of the verdict in respect of the 1^st applicant in consequence of the unlawful verdict, “means any scenario where A2 by himself acted, simply was not one of joint enterprise.”

Joint enterprise

22.  Next, it was submitted that there was insufficient evidence upon which the jury could convict the applicants of murder on a primary or secondary basis, given that in the case of each applicant the attack was “a rapid and planned escalation beyond his possible expectations.”  Then, it was contended that there was insufficient evidence for the jury to conclude safety that there was a pre-existing intention amongst the members of the attacking group to cause serious bodily harm to the deceased.

23.  Also, it was submitted that the respective applicants had withdrawn from the assault conducted by the others and had indicated that withdrawal to them.  Further, the direction by the jury as to the issue of the withdrawal of the respective applicants from the attack was erroneous.  It was contended that, whilst the direction was appropriate in circumstances of “pre-planned violence” it was not appropriate in a case which involved spontaneous violence which occurred over a short duration of 30 seconds.  In support of that submission, Mr McCoy relied on the judgments of the Court of Appeal of England and Wales in R v Mitchell, R v King [5], R v O’Flaherty [6] and R v Mitchell and Ballantyne [7] and the judgment of this court in HKSAR v Chu Yiu Keung [8].

R v Brown (Kevin) direction required

24.  Then, it was submitted that the judge erred in failing to direct the jury in accordance with the requirements set out in the judgment of the Court of Appeal of England and Wales in R v Brown (Kevin) [9], namely that the jury must be directed that they must agree not only as to the respective accused being guilty but also as to the basis of that verdict of guilty.  The court was asked to note that in R v Carr the Court of Appeal of England and Wales had determined that such a direction was required in a case of murder, where an alternative verdict of manslaughter was available to the jury. [10] In the grounds of appeal, it was contended that the direction ought to have been given by the judge not only in respect of the 2^nd applicant, for whom such a direction was sought unsuccessfully at trial, but also in respect of the 1^st applicant.

2^nd applicant: impermissible cross-examination

25.  In the course of the hearing, Mr McCoy indicated that he abandoned the ground of appeal advanced in respect of the 2^nd applicant in which it was contended that there was a material irregularity in the conduct of the trial, in that the judge permitted the prosecution to cross-examine the 2^nd applicant in relation to a motive for his conduct, which had no evidential basis.  He was right to do so.

A CONSIDERATION OF THE SUBMISSIONS

Unlawful verdict of murder

26.  Immediately prior to commencing his summing up, the judge directed that a set of documents be provided to the jury, namely (i) a list of witnesses; (ii) a list of exhibits; (iii) Sheet 1 - directions in respect of murder; (iv) Sheet 1A - directions in respect of provocation; (v) Sheet 2 - directions in respect of manslaughter; and (vi) a pro forma - a set of questions and answers to assist the foreman to return the verdicts of the jury. [11]  Of the pro forma, the judge informed the jury that [12]:

“ ..it simply sets out the questions and answers my clerk will ask your foreman, Mr Ma, at the end of the trial when it’s time to return your verdict. So that is a document you will have with you during the course of your deliberations and you will be able to refer to it and understand how your verdicts are to be delivered.”

Prior to the jury entering the court room, the judge had confirmed with counsel that there were no objections or comments to those handouts.  Shortly before the court adjourned on the previous day, the judge had informed the jury that he proposed giving them handouts. [13]

27.  The pro forma dealt with the verdicts to be returned in respect of each of the accused.  Having set out the particulars of the indictment numbers and the details of the parties, it reads:

   Clerk: Mr Foreman, would you please stand up, I am going to ask you to return your verdicts.                

Murder

LAM Siu-fung (1^st Accused)

1. On the Count of Murder against the 1^st accused -LAM Siu-fung, have you reached a verdict?  (Please answer “yes” or “no”)

If “Yes”, go to question 2.

If “No”, the judge will deal with it.

2. Is your verdict one upon which you are all agreed?  (Please answer “yes” or “no”).

If “Yes”, go to question 3.

If “No”, go to question 2A.

2A. If not, by what majority have you arrived at the verdict?  (6 to 1, OR 5 to 2)

3. What is your verdict?  Do you find him?

a. Guilty? or

b. Not Guilty? or 

c. Not Guilty of Murder but guilty of Manslaughter by reason of provocation?

(If you find the first accused (b) Not Guilty of this Count, then you must consider the alternative offence of manslaughter of an unlawful act and go to question 4)

28.  Questions 4 to 6 posed questions relevant to the alternative verdict of manslaughter by an unlawful act.  Questions 7 to 9 posed questions relevant to the count of murder against the 2^nd applicant:

Murder

NG Pak-lun (2^nd Accused)

7. On the Count of Murder against the 2^nd accused - NG Pak-lun, have you reached a verdict?  (Please answer “yes” or “no”)

If “Yes”, go to question 8.

If “No”, the judge will deal with it.

8. Is your verdict one upon which you are all agreed?  (Please answer “yes” or “no”).

If “Yes”, go to question 9.

If “No”, go to question 8A.

8A. If not, by what majority have you arrived at the verdict?  (6 to 1, OR 5 to 2)

9. What is your verdict?  Do you find him Guilty or Not Guilty?

(If you find the 2^nd accused Not Guilty of this Count, then you must consider the alternative offence of manslaughter by an unlawful act and go to question 10)

29.  At the end of the summing up, the judge addressed the pro forma at length in his directions to the jury:

“ Well, let us go to the first page of this document. It deals with the 1^st defendant and the return of your verdict in respect of the murder charge on the indictment. Your first question is whether you have reached a verdict and your possible answers as given by your foreman, Mr Ma, are very simple. Mr Ma will simply say, “Yes” or “No” to the first question as to whether you have reached a verdict and you can see the instructions are then given to you by the pro-forma. If your answer is “Yes” given through Mr Ma, you will simply go on then to question 2 but if your answer is “No” you have not reached a verdict, then I will have to deal with the matter further.

Question 2 “Is your verdict one upon which you are all agreed?” And again, there are only two answers, “Yes” or “No.” If your answer is “Yes” you go straight to question 3 but if your answer is “No”, you will go to question 2(a) and you can see there the question is, “By what majority have you arrived at the verdict, six to one or five to two?” Now you have not heard about a majority verdict yet but it is quite simple. If you cannot be unanimous in your verdict, that is, if you cannot all be agreed in your verdict, then the law allows you to return a majority verdict where at least five of you are agreed - at least five of you are agreed - regardless of whether your verdict is guilty or not guilty or, in the case of the 1^st defendant not guilty of murder but guilty of manslaughter by provocation, there must be at least five of you who are agreed on your verdict.

And if you do return a majority verdict you will be asked to state what that majority is by question 2(a). There are only two possible majority verdicts, one is six to one or five to two and the reason for that is at least five of you have to be agreed. All right.

And the third question is quite straightforward. So far as the 1^st defendant is concerned you only have three possible verdicts. One is guilty, one is not guilty, and one is not guilty of murder but guilty of manslaughter by reason of provocation because, as you are aware, the defence of provocation is something you have to consider in respect of the 1^st defendant.

Now, you will see a note at the bottom of the page there and it simply says “If you find the 1st defendant be not guilty then you must consider the alternative offence of manslaughter by an unlawful act” and go on over the page. But let me emphasise this, you only go on to consider the offence of manslaughter by an unlawful act if you find the 1^st defendant simply not guilty of murder. If you find him guilty of murder that is the end of your considerations so far as the 1^st defendant is concerned and you do not need to go any further. You only go over to the manslaughter charge and return a verdict in respect of that if you find the 1^st defendant not guilty of murder. You do not consider it if you find him guilty of murder or not guilty of murder but guilty of manslaughter by reason of provocation. I think you all understand that.”

30.  Having addressed the jury in respect of Questions 4 to 6, posed as to the issue of a verdict in the case of the 1^st applicant of manslaughter by an unlawful act, the judge dealt with the questions posed in respect of the count of murder against the 2^nd applicant:

“So far as the 2^nd defendant is concerned you see that on page 3 of pro-forma.  Again the same questions so it is not very complicated; again the same questions are asked in respect of the 2^nd defendant, Ng Pak-lun.  Now the last question is question 9 in respect of your possible murder verdict.  Question 9 is “what is your verdict?”  Now, there are only two possible verdicts, guilty or not guilty because as you will remember provocation does not apply to the case of the 2^nd defendant.  You do not have to consider that issue so far as he is concerned and, therefore, it will not - it cannot be possibly reflected in your verdict.”

31.  The judge concluded his directions in respect of the pro forma by inviting the jury to use it in court at the time of the delivery of the verdicts [14]:

“ And when your verdict has been delivered by Mr Ma in response to the questions which will be asked by my clerk, I want you all to follow through and in the very unlikely event that there is any confusion, or something happens that you think should be brought to Mr Ma’s attention, well do so ..”

32.  In eliciting the verdicts of the jury from the foreman, the judge’s clerk was faithful to the format of the pro forma, although of course he omitted the parts of the pro forma that are enclosed in brackets and proceeded to the questions identified as appropriate in response to affirmative and negative responses of the foreman. [15]  In posing Question 3 of the pro forma, the clerk said:

“ What is your verdict? Do you find him guilty or not guilty; or not guilty of murder, but guilty of manslaughter by reason of provocation?”

33.  As is the practice, given the mandatory nature of the sentence required by law to be imposed on an adult convicted of murder, the judge moved immediately to sentence the applicants, sentencing each of them to life imprisonment.  Then, he proceeded to thank the jury for the role that they had played in the trial.

34.  Part VI of the Judicial Studies Board’s Specimen Directions addresses the topic of ‘Verdict/Jury Management’.  Specimen Direction 55.4 is entitled “Questions to assist the return of a verdict/s.”  Questions 4 to 7 address the situation in which the jury may need to address returning an alternative verdict.  Questions 1 and 2 pose the questions encompassed in the pro forma provided by the judge to the jury.  The pro forma set out in the Specimen Directions then poses these questions:

“ 3. What is your verdict?

[If “not guilty” and there is a possible alternative verdict:

4. Have you reached a verdict on the possible alternative offence of……

If “No”, the judge will deal with the matter.

If “Yes” then:

5. Is the verdict one upon which you are all agreed?

If “Yes” go to Question 6.

If “No” then:

5A. By what majority have you arrived at the verdict?

Then:

6. What is your verdict?]

7. [In a murder case when alternative bases for a manslaughter verdict have been left for the jury’s consideration, add (as appropriate)]  On what basis do you find the defendant guilty of manslaughter :

(1)  manslaughter by an unlawful and dangerous act or

(2)  manslaughter by reason of provocation or

(3)  manslaughter by reason of diminished responsibility?]”

35.  It is clear that the sequence of suggested questions calls for a verdict first in respect of the count, before the jury are asked to deal with an alternative verdict to the count.  The latter consideration arises only in the event of a verdict of ‘not guilty’ to the count, after which an enquiry is to be made of the jury as to whether or not they have a verdict in respect of an alternative offence.  In the context of the count of murder in respect of each of the applicants, the format suggested the following enquiries be made of the foreman: “3. What is your verdict? Guilty? Or, Not Guilty?”  Only in the event of a verdict of not guilty to the count of murder does the issue of posing Question 4 arise.  In that event, the appropriate question was: “4. Have you reached a verdict on the possible alternative offence of manslaughter?”

36.  Clearly, the pro forma used at trial, conflated the suggested separate questions posed by 3, 4 and 6 of the Specimen Directions.  But, given the form in which Question 3 was posed to the jury, was their verdict in anyway ambiguous?

37.  In Mohetuki the appellant was jointly charged in Count 1 of the indictment with her co-accused, Tia Hemopo, of injuring the complainant with intent to injure her.  By Count 2, Tia Hemopo was charged by herself with having threatened to kill the complainant at the same time and place as the events alleged in Count 1. In obtaining the verdicts of the jury in respect of Count 1 the Registrar posed the question to the foreman:

“ On count one, do you find the accused Tia Maria Hemopo together with Melanie Mohetuki guilty or not guilty?”

The foreman replied, “Guilty” and the Registrar proceeded immediately to question the jury to obtain a verdict in respect of Count 2 against Tia Hemopo alone.  The jury returned a verdict of guilty in respect of that count.  Thereupon, the jury was discharged by the judge, before the judge remanded the defendants for sentence.

38.  As Young P noted in the judgment of the court, the words “together with” do not appear in the indictment.  Of the appropriate method of taking the verdicts in respect of Count 1, he said, [16] “The Registrar should have inquired first whether the jury found Tia Maria Hemopo guilty or not guilty.  The Registrar should then have made the same inquiry in relation to the appellant.” He went on to say that in the face of the departure of the Registrar from the appropriate practice, the judge ought to have intervened to take separate verdicts in relation to each of the defendants at trial.  Since the judge did not do so, the issue that arose on the appeal was the “materiality of the undoubted irregularity.”

39.  The court was satisfied that the jury intended to and did return verdicts of guilty on both counts against Tia Hemopo, but the real question was, “whether the jury also returned a verdict of guilty on count one against the appellant.”  Of that issue, Young P said that the court thought it was clear that the jury had concluded that the appellant was guilty on Count one: [17]

“ That, after all, is the most plausible interpretation of the answer given to the question posed by the Registrar. It is also consistent with the absence of any later protest or expression of concern on the part of the jurors about what happened subsequently. If the jury had intended to acquit, its members would have protested when the verdict was not taken and the appellant was treated as having been found guilty.”

40.  However, Young P said that the court did not regard those considerations as being “conclusive as to whether the jury can be taken to have returned a verdict of guilty against the appellant on count one”.  Rather, he said there existed an alternative and “not completely implausible interpretation”, namely that the foreman was expecting a further question in relation to count one, namely whether the jury found the appellant guilty or not guilty on that count.  He concluded by saying that, if that interpretation was correct, since no question was forthcoming from the Registrar, “no verdict was taken in relation to the appellant on count one”.

41.  In the result, the court concluded that the exchange between the Registrar and the foreman was,[18] “insufficiently clear to be properly treated as a verdict of guilty against the appellant.”  Given the fundamental nature of the delivery of a verdict the court determined that it was not entitled to resort to the proviso. [19]

42.  The nub of the concerns expressed by the court in Mohetuki arose from a very different factual situation from the instant case.  There, the Registrar had failed to secure separate and discrete verdicts from the jury in respect of each of the two defendants concerned with Count 1.  The question posed by the Registrar rolled up the two questions into one, to which only one was given answer.  That gave rise to the concerns as to whether or not the jury had delivered a verdict in respect of the appellant.

43.  The format of the pro forma presented to the jury by the judge in respect of the applicants represented a departure from the standard procedure by which verdicts are obtained from a jury in respect of a count of murder, where there exists the possible alternative verdict of manslaughter.  The draft pro forma contained in Specimen Direction 55.4 of the Specimen Directions requires a verdict to be delivered first in respect of murder, Guilty or Not Guilty.  Only in the event of a verdict of not guilty of murder, is the question posed of the jury of an alternative verdict of manslaughter.  It is not clear why the judge did not follow the standard procedure.  Equally, it is unclear, given that the pro forma was provided to counsel in advance of being provided to the jury and eventually used by them in delivering their verdicts, that the fact that it did not conform to the standard procedure was not drawn to his attention.

44.  Nevertheless, it is abundantly clear from the sequence of the questions posed in respect of the count of murder against the 1^st applicant that the response “Guilty” was a verdict of “Guilty of murder” and nothing else.  That was the first substantive matter which the jury, through the foreman, was required to address.  Obviously, as was stated in the pro forma and as the judge directed the jury in his summing up, available to the jury on the count of murder were the verdicts of Guilty or Not Guilty.  Plainly, that was in respect of the offence of murder.  The verdict of the jury in respect of the 1^st applicant was an unambiguous verdict of guilty of murder.

45.  The alternative verdicts available to the jury of manslaughter were issues for the jury to address only after they had determined the respective applicant to be Not Guilty of murder. Question 3 c. stated as much, “Not guilty of Murder but guilty of Manslaughter by reason of provocation?”  The footnote made it clear that in the event that the verdict of the jury was Not Guilty of murder, but the jury had no verdict of manslaughter by reason of provocation, the jury was to consider a verdict of manslaughter by an unlawful act as posed by Questions 4 to 6.

46.  Given the firm view that we take that the jury delivered an unambiguous verdict of guilty of murder, it is not necessary to have regard to other matters.  But, a consideration relevant to whether or not there was any ambiguity in the jury’s verdict being one of guilty to murder in respect of each of the applicants is the fact that the jury was present when the judge sentenced each of the applicants immediately after the verdicts had been delivered, informing them that since they had been convicted by the jury of the offence of murder the penalty, namely life imprisonment, was mandatory.  There is no dispute that none of the jurors took issue with the judge’s interpretation of the verdicts.  We accept that in some circumstances that consideration would not necessarily be decisive of the issue.  However, in the circumstances of this case, we regard the lack of any reaction whatsoever from the jury as very powerful confirmation of our determination that the jury had returned an unambiguous verdict of guilty of murder in respect of the 1^st applicant.

47.  There is no merit in this ground of appeal.

Joint enterprise

48.  The judge noted at an early stage in his summing up to the jury that the prosecution was “unable to say which blow was the fatal blow” to the deceased and was unable to prove that either of the applicants had struck the blow. [20]  He said that the prosecution put its case on the basis of joint enterprise.  Sheet 1 of the handouts provided to the jury by the judge addressed the issue of joint enterprise in detail:

“ WHAT MUST BE PROVED AGAINST A DEFENDANT BEFORE HE CAN BE CONVICTED OF MURDER:-

1. That the Defendant was one of a group of people who acted together in a joint enterprise to attack POON Ka Yan.

2. That during the existence of a joint enterprise POON Ka Yan was struck a blow by a member of the joint enterprise which caused his death.

3. That the person who struck the blow intended to cause really serious injury to POON Ka Yan.

4. That while participating in the attack upon POON Ka Yan the defendant either himself intended to cause really serious injury to POON Ka Yan OR was aware that there was a real risk that one or more other members of the group would intentionally cause POON Ka Yan really serious injury.

5. That the Defendant was aware of the possibility that a member of the group might use a weapon of the sort which caused the fatal injury to POON Ka Yan.

6. The Defendant had not withdrawn from the joint enterprise before the fatal blow was struck.

If you are sure the prosecution has proven each of these matters against a Defendant then he is guilty of murder. (Subject to the defence of provocation in the case of the 1^st defendant)

If you are not sure that all of these matters have been proven against a Defendant then you must find that Defendant not guilty of murder, and go on to consider the offence of manslaughter so far as that Defendant is concerned.”

49.  During the summing up, the judge took the jury in turn to each of the matters proof of which the judge directed the jury was required before the jury could convict either of the applicants.  Of the requirement that it be proved that the applicant, whose case the jury was considering, acted together with others to attack the deceased the judge directed the jury that: [21]“It does not matter at what stage a common understanding to attack Poon was formed.”  That direction resonated with what the judge described earlier as being one of the important issues in the trial, namely:[22]

“ ..what was the intention and understanding of each defendant when he was with the others at the scene of the McDonald’s Restaurant and participated in the attack on Mr Poon.”

50.  Of the requirement that it be proved that the blow that caused the death of the deceased had been struck during the existence of the joint enterprise, the judge reminded the jury of the evidence that the last blow struck to the deceased, the second of two blows struck with the umbrella stand, was delivered by Ah Man.  In the context of the forensic evidence that it was not known when the fatal blow was struck, the judge directed the jury to assume in favour of the applicants that one of those blows was the fatal blow.  In consequence, he identified the issue for their consideration as being, “whether at the time of that blow the joint enterprise was still in existence.” [23]

51.  Of the evidence relevant to a consideration of that issue, the judge reminded the jury of the photographs taken from the CCTV film: [24]

“ …if you would go to photo 27 of P1640 [Time: 03:58:28], you can see Ah Man there as male ‘B'. You can see the others, who I think you are by now familiar with, around the vicinity of Poon, and Poon lying against the stacked bread trays - that ‘Male B’ is Ah Man. And it is at that time, members of the jury, that he is leaning forward apparently to pick up the umbrella stand which has been dropped there by ‘Male F’.

And you can see that in the previous photograph, two seconds earlier, [Time: 03:58:26] ‘Male F’ had used the umbrella stand apparently to strike Mr Poon, and then ‘Male F’, in photo 27, is walking away empty handed and ‘Male B’, Ah Man, is leaning forward to pick up the umbrella stand. So that is the occasion when ‘Male B’, Ah Man, commences to use the umbrella stand against Mr Poon. This is where he leans forward to pick it up. At this point of time, members of the jury, in photograph 27, all nine individuals are still on that part of the cashier’s floor where Poon is lying prone, where Poon is lying down. They are all still there at the time that Ah Man picks up that umbrella stand or starts to pick up that umbrella stand. Does that suggest to you that Ah Man’s actions were still part of the continuing joint enterprise?” (Times added.)

52.  Of the whereabouts of the other young men at the time of the delivery of the blows by Ah Man to the deceased, the judge reminded the jury: [25]

“ …Ah Man, is then, in photograph 29, lifting up that umbrella stand to strike Poon. Many of the others are still on the cashier’s podium at that time, although by now all of them, with the exception of PW4 and ‘Male C’, all of them are leaving the podium, including the persons ‘Male E’ and ‘Male F’. And of course the first blow of Ah Man is struck at photograph 29 through to 31 [Time: 03:58:29 - 03:58:30]. And just as he brings that umbrella stand back to strike the blow at photograph 32 [Time: 03:58:31], the last of the group members are starting to go down the staircase. Only ‘Male C’ and PW4 remained behind.

So put, when you consider this matter, into context Ah Man’s commencement of the assault on Poon with the umbrella stand, in the context, I should say, of what the rest of the group were doing. It is very much a matter for you, members of the jury. Take into account all of the circumstances of Ah Man’s attack on Poon. Take into account that the others were leaving before that first blow of Ah Man’s had been struck. Take all of the circumstances into account in determining whether Ah Man’s blow was struck, or his blows were struck whilst the joint enterprise was still continuing. Take into account the circumstances of the attack, how it had started, how it had progressed and how it had concluded. You are entitled to take into account that the group members stayed together after the attack. They left in the same way that they had arrived. They returned to the Choi Hung Bar together I think, or at least most of them returned back to the Choi Hung Bar.” (Times added.)

53.  The judge went on to direct the jury that if they were not sure of that matter they would find the applicants not guilty, “because once the joint enterprise has ended the defendants are no longer responsible for anyone else’s actions.” [26]

54.  Although the judge reminded the jury that no issue was taken as to the intention of the person who delivered the fatal blow, he directed them that it was a matter for them to consider whether it was intended to cause the deceased really serious injury. [27]

Withdrawal

55.  In Chu Yiu Keung this Court considered the issue of withdrawal from a criminal joint enterprise, including that in which a violent incident arose spontaneously.  On the facts of that case, the latter consideration did not arise since the violence arose from a “planned revenge attack”. [28]  The court cited with approval[29] the statement made by Mantell LJ in the judgment of the Court of Appeal of England and Wales in R v O’Flaherty of the consequences of unequivocal withdrawal by a party to joint enterprise, namely that [30]:

“ A person who unequivocally withdraws from a joint enterprise before the moment of the actual commission of the crime by the principal, here murder, should not be liable for that crime although his acts before withdrawing may render him liable for other offences.”

56.  This Court noted that the statements made by Sloan JA in the judgment of the Court of Appeal of British Columbia in R v Whitehouse had been cited with approval on several occasions by the Court of Appeal of England and Wales. [31]  Sloan JA said that, whilst the issue of whether or not a party to a joint enterprise, by steps taken to withdraw from the joint enterprise, had broken the chain of causation and responsibility would depend on the circumstances of each case, but that an essential element was that, “Where practicable and reasonable there must be timely communication of the intention to abandon the common enterprise from those who wish to disassociate themselves from the contemplated crime to those who desire to continue in it”.

57.  In R v O’Flaherty, the court cited with approval [32] the statement of Otton LJ in the judgment of the Court of Appeal of England and Wales in R v Mitchell and King in which a distinction was drawn between pre-planned and spontaneous violence: [33]

“ Communication of withdrawal is a necessary condition for disassociation from pre-planned violence. It is not necessary when the violence is spontaneous. Although absent any communication, it may, as a matter of evidence, be easier to persuade a jury that a defendant, who had previously participated, had not in fact withdrawn. Such considerations are clearly relevant in such cases, but less so when the violence has erupted spontaneously.”

58.  Illustrating the difference, Mantell LJ said that: [34]

“…in a case of spontaneous violence in principle it is possible to withdraw by ceasing to fight, throwing down one’s weapons and walking away.”

59.  In his summing up, the judge addressed the issue of withdrawal at some length: [35]

“ And how does a person withdraw from a joint enterprise such as the one alleged in this case. The law is this. To withdraw from a joint enterprise a defendant must do some act or make some statement which clearly and obviously demonstrates to the other members of the joint enterprise that he is no longer a member of that joint enterprise and no longer lends any support to the other members of the joint enterprise.

Simply standing aside as a result of a sudden change of heart and wish to no longer participate may not be enough. Even walking away from the assault on Poon may not be enough. Whether it is enough is a matter for you to decide.

But let me emphasise there must be a clear and obvious act or words which demonstrates to the others that that individual is no longer part of the joint enterprise to assault. Why should it be obvious to the others? For this reason, members of the jury, if you have been a member of the joint enterprise, then the others rely upon you for support. So to withdraw from the joint enterprise you have got to make it obvious to the others that you are no longer a member of the joint enterprise.

What if a defendant in this case had, quite plainly, made it clear and obvious that he had withdrawn from the joint enterprise but nobody had noticed what he did.  Well, that is not his fault if they do not notice what he did.  If he has done enough in your view to make it obvious to the others that he is withdrawing, then that is sufficient.”

60.  The judge’s directions were to the effect that for a party to withdraw from a joint enterprise he must do so by unequivocal acts or words demonstrating that to be the case.  There is no dispute that the direction reflects the law.  Clearly, the last paragraph of the judge’s direction was relevant to the evidence that the violence had unfolded spontaneously, was of very short duration, during which the deceased had been surrounded by a group of young men and in short order forced to the floor, in which position his attackers jostled to deliver blows.  In effect, the jury were directed that in those circumstances if, on the evidence, they were satisfied that the respective applicants had or may have done things or said words evincing an unequivocal withdrawal from the joint enterprise, that was sufficient.  It was not necessary for them to be satisfied that the conduct had been observed by others.

61.  Neither of the applicants, or any of the group of young men who travelled in the two cars to the McDonald’s Restaurant, was armed with a weapon as they entered the restaurant.  On the contrary, it was the deceased who took hold of the metal rubbish compactor, which he held behind him when first confronted by the 1^st applicant. Thereafter, events unfolded very quickly.  As noted earlier, the 1^st applicant and the deceased are depicted in the CCTV film at 03:58:57 confronting each other in the counter serving area of the restaurant.  At that stage none of the other young men were in that area.  Then, the violence occurred.  By 03:58:35, of the group of young men only Ah Man was still to be seen in the counter serving area of the restaurant, and he is seen to be in flight two or three strides away from the stairs.

62.  Of the evidence relevant to the issue of withdrawal in respect of the 1^st applicant, the judge reminded the jury of his testimony: [36]

“  ..that he shouted “Stop” and threw the compactor rod on the floor with sufficient force to attract the attention of others, and so to demonstrate to the other members of the group attacking Poon that his participation, that is the 1^st defendant’s participation in the attack, was at an end.”

Of that testimony, the judge directed the jury:

“ If you……. think it might be true that he did this and said this, you will have to consider whether it amounts to a clear and obvious demonstration of the 1^st defendant’s withdrawal from the joint enterprise before the fatal blow may have been struck by Ah Man.”

63.  In respect of the issue of withdrawal from the joint enterprise by the 2^nd applicant, the judge invited the jury to do so on the basis of their determination of which person he was, namely that designated as ‘F’ or ‘E’.  Of the former, he said: [37]

“ …if you have concluded he was the person ‘F’ who used the umbrella stand to strike Poon, then any withdrawal by him would simply have been his walking or running away from the scene of the attack on Poon as shown by the CCTV recording. You must decide whether that might have been sufficient withdrawal, but bear in mind, as I say, that simply going away from the scene of an attack may well not be a sufficient withdrawal. But it is entirely a matter for you.”

64.  Of the latter position, he said: [38]

“ ... look closely at how he slowly retreats away from the body of Poon and stands near the cash register counter for several seconds before he then also goes away from the scene. Mr Iu suggests that the 2^nd defendant’s retreat away from the body of Poon and his slow retreat towards the cashier’s counter demonstrates his withdrawal from the joint enterprise and is supported by his evidence that he had a change of heart about attacking Poon when he saw weapons being used against Poon.

If you accept that evidence you will have to consider whether the actions of the 2^nd defendant, if you accept he may have been the person ‘E’, amounted to a clear and obvious demonstration that he no longer supported the joint enterprise and its members attack on Poon.”

65.  Finally, the judge reminded the jury of the prosecution case in respect of withdrawal, namely that neither of the applicants had withdrawn from the joint enterprise, and in particular that they invited the jury to note that:

“ … the group arrived at the McDonald’s together, they then attacked Poon more or less together, and then they left more or less together. Do you think there might have been a clear and obvious demonstration of withdrawal by either defendant from the joint enterprise to assault Poon in those circumstances?” [39]

Conclusion

66.  In the result, we are satisfied that the judge gave the jury directions of law in respect of the issue of withdrawal from a joint enterprise that were correct and entirely apposite to the circumstances of each of the applicants in this case.  Further, he reminded the jury appropriately of all the evidence relevant to the jury’s consideration of that issue.  There is no merit in this ground of appeal.

R v Brown (Kevin) direction

67.  The evidential context in which an application was made on behalf of the 2^nd applicant to the judge that he should give the jury a Kevin Brown direction in his summing up arose from the issue between the prosecution and the defence as to the role played by the 2^nd applicant in the attack on the deceased.  It was an admitted fact that a total of 9 identified males, including the 1^st and 2^nd applicants, took part in assaulting the deceased. [40] The 1^st applicant (Male A) and six other males were identified by both alphabetic designation and name.  Males E and F were not identified by name.  The 2^nd applicant and Ka Ho were either Male E or Male F.  The admission extended to a stipulation in photographs taken from the CCTV of the specific alphabetic designation of each of the males.  It was the 2^nd applicant’s testimony, supported by the evidence of the 1^st applicant that Ka Ho was Male F.  The 2^nd applicant said that he himself was Male E.  It was the prosecution case, based on the testimony of Cheung Kwok Ho, that the 2^nd applicant was Male F.

68.  There was no dispute as to the sharp contrast in the roles of Male E and Male F in the assault.  Male F had delivered two blows with the base of the umbrella stand, delivered in a vertical arc of more than 180° from behind his body to the area in which the deceased lay prone on the ground in front of Male F.  The 2^nd applicant asserted in his testimony that he was Male E and accepted that he had delivered two kicks to the waist of the deceased during the assault.  He said that he had never used the metal umbrella stand during the assault.

69.  Having received submissions from counsel for the 2^nd applicant, the judge declined to give a Kevin Brown direction.  He noted that it was submitted on the part of the 2^nd applicant that there were two separate bases upon which he could be convicted by the jury, namely: [41]

“ Firstly, he could be convicted from the accomplice witness’ evidence on the basis he actually used the umbrella stand as a weapon.  …..Secondly, on the basis he played the more minor role of the person labelled “E” in the still photographs.  There are no other choices.”

The judge said that in those circumstances, counsel sought: [42]

“ a Brown direction or something similar should be given to the jury to the effect that at least five of them have to be satisfied to the appropriate standard as to which role the 2^nd defendant played. That is, either that of the person “F” or “E”.”

70.  Of the judgment in Kevin Brown, the judge said: [43]

“ …the case was concerned with wholly separate actus reuses in the form of misrepresentations, so that it was possible for individual jury members to find that only one had been proven and not others, and for other jurors to have found separate and different representations to have been proven.  In those circumstances, there may not have been jury unanimity or may not have been even a majority in respect of each of the misrepresentations which, I might add, were referred to by the court as “ingredients of the offence”.”

71.  Having regard to those matters in the context of the instant case the judge said: [44]

“ ...whether the 2^nd defendant used the umbrella stand or simply kicked the deceased is not an ingredient of the offence. It is a simple dispute on the evidence as to what actions the 2^nd defendant did during the assault on the deceased, the relevance of his actions going to the inference the jury may draw as to his state of mind.

In other words, his actions are not an ingredient of the offence. They are a means to proof of an ingredient, and that ingredient, unlike in Brown and Mitchell, is not one of a number of alternative ingredients.

On that basis alone the present case does not require a Brown direction.”

72.  The judge noted, what he described as the, “unique circumstances” obtaining in Carr, and said that it was “a case decided on its own facts and the real question before the court there was whether the appellant had a fair trial.  I do not think the case attempted to establish an extension of the principal in Brown.” [45]  Nevertheless, the judge said that the rationale of the judgment in Carr, in so far as it related to the principle expressed in Brown, was that if the evidential alternatives in the prosecution case were so great, “regardless of whether or not it amounts to an allegation of alternative ingredients, it is necessary to direct the jury that they must be agreed on one version of the evidence or the other simply so as to achieve fairness and to ensure that the basis of the conviction has sufficient certainty.” [46]

73.  Having noted that, in his view, the application for a Kevin Brown direction had been precipitated by the fact that whilst the CCTV film adduced in evidence was clear enough to distinguish the roles of different parties in the assault, it was not good enough to permit identification of the applicants, the judge said: [47]

“ Accordingly, the role of the 2^nd defendant is evidentially based only on the evidence of the accomplice witness and of the defendant himself, supported by the 1^st defendant.

What if, in a similar case to the present, the jury were unsure of the evidence of the accomplice witness and rejected the defence evidence? Let us say they are sure the 2^nd defendant is the equivalent of either our “F” or “E”, or indeed “H” or “J”, but cannot say which. They are, however, certain that whatever of these roles the defendant played, he is guilty of murder.

In my view, it would be contrary to common sense to direct the jury, as Mr Iu wishes me to do in this case, on the basis of Brown, where the jury would have to acquit when all agree the prosecution have proven all ingredients of the offence, whichever of the individual roles shown on the CCTV the defendant may have played.

In other words, it would be contrary to common sense for a jury to be directed to acquit simply because the prosecution had failed to establish the precise role of a particular defendant during a fatal assault.  That logic is the basis of the ratio in R v Gianetto [1997] 1 Cr App R 1, and in my view, that principle applies to the present case.”

74.  Of the circumstances of a joint enterprise killing, the judge said: [48]

“ …it is almost always the case that the attack itself is chaotic and confusing both to witnesses and to those involved. To require unanimity as to the role of a particular defendant is to cast an unrealistic burden on the prosecution and one which is unnecessary in principle.”

75.  Finally, the judge distinguished between the circumstances obtaining in Kevin Brown and the case of the applicants: [49]

“ Unlike in Brown, where individual jurors could possibly view only one alternative pleaded in the charges as proven and the others as being unproven or even disproven, in the present case it is quite obvious that any juror who convicted the 2^nd defendant on the basis that, while he only kicked the deceased, he was a member of the joint enterprise and had the required mens rea, that juror would also have convicted the 2^nd defendant on the alternative basis had he or she been satisfied he had also struck the deceased with the umbrella stand.

In the present case there is not the possibly mutually exclusive basis of a conviction as existed in Brown and which, for that reason, had given rise to the potential for unfairness. That is because in the present case, proof of the 2^nd defendant’s use of the umbrella stand simply strengthens the prosecution case. It does not change it or present an alternative case.

The jury in this case will be perfectly entitled to say, “We are not sure the 2^nd defendant used the umbrella stand to strike the deceased, but even so, if he merely kicked the deceased, we are sure, because all elements of the offence have been proven against him, that he is still guilty of murder or manslaughter.”

76.  In Kevin Brown the appellant’s convictions of four counts of fraudulently inducing investment of money and one of attempted to do so, contrary to section 13(1)(a) of the Prevention of Fraud (Investments ) Act 1958 were quashed by the Court of Appeal.  The counts arose out of allegedly fraudulent inducements made by the appellant to separate investors to invest in shares in a company by statements he made which he knew to be misleading, false or deceptive.  The Particulars of Offence of each of the counts set out those multiple false statements.  In disapproving of the judge’s directions to the jury, in reply to their question as to whether or not they were required to be agreed in respect of a particular false statement stipulated in the Particulars of Offence, Eveleigh LJ said in the judgment of the court: [50]

“ 1. Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction). 2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged.”

77.  The appellant in Carr was tried alone on a count of murder and found guilty of manslaughter by an unlawful and dangerous act.  The deceased was ejected from a nightclub at which the appellant was employed as a bouncer.  He was subjected to an assault which felled him to the ground, as a result of which he fractured the back of his skull and died from injuries to his brain.  The prosecution opened its case, and resisted a submission of ‘no case’, on the basis that the blow that felled the deceased was a karate kick to the face of the deceased.  Some witnesses described a karate kick to the face and others a big blow delivered with a fist.  The defendant gave evidence and called two witnesses.  It was the defence case that the defendant had not delivered a karate kick to the deceased and, if he had struck a blow which connected with the deceased, it was struck in self defence. The defendant and his first witness were not cross-examined by the prosecution on the basis that he had felled the deceased with a blow with his fist.  However, that suggestion was made to the second defence witness in cross examination.

78.  In allowing the appeal and quashing the conviction for manslaughter Bingham LCJ, in the judgment of the court, was critical of the fairness of the trial to the defendant.  First, it was “unfortunate” that the prosecution had declined to provide particulars of how it put its case before the trial, and the judge had not directed them to do so.  Secondly, the court was satisfied that there was “actual prejudice” to the defendant from the fact that the prosecution was permitted to depart from one version of its case and to pursue another during the trial.  Thirdly, in leaving the case to the jury on the alternative basis of a karate kick to the face or a punch, it was necessary for the judge to, “..direct the jury very carefully indeed on the differences between these two forms of assault and the different defences applicable to each and, in particular in relation to the punch, the exercise of reasonable force.  It was necessary to make plain that, if the jury was satisfied that the crucial blow was a kick, the issue was one of identification; and if the crucial blow was a punch, the issue was one of self defence..”  The court concluded that the judge had failed to do so.  Fourthly, the judge should have directed the jury that they must reach a “unanimous decision on the deliberate act (if any) which they found proved and on the unlawfulness of the act.”

79.  Of the failure of the judge to give a Kevin Brown direction, the court said that [51]:

“ There was in our judgment a real risk that some of the jurors might have found the defendant to have kicked the deceased and others found him to have delivered a punch, feeling themselves entitled to convict because the judge told them that the defendant could be convicted on either basis. Had that happened there would have been six jurors not satisfied that the defendant delivered the fatal kick and six jurors not satisfied that the deceased had been felled by a punch by the appellant.”

80.  In his ruling, the judge referred to, what he called, “the unique circumstances of Carr” [52], before determining that it was, “a case decided on its own facts, and the real question before the court there was whether the appellant had had a fair trial.” [53]  With respect to the judge, there is a considerable force in those observations.

81.  An important difference between the matters at issue in Carr and those arising in these applications is that Carr was tried alone.  His culpability rested on his conduct alone.  Whereas, the applicants were jointly charged in what the prosecution alleged was a joint enterprise in which, in the circumstances described by the judge, they bore responsibility for the acts of others as being acts done within the ambit of the joint enterprise.  The issue of whether the 2^nd applicant was Male F, as the prosecution contended, or Male E as the 2^nd applicant testified, was relevant to the issue of whether or not he was a party to a joint enterprise to cause really serious bodily injury to the deceased and as to the issue of withdrawal from the joint enterprise.

82.  In that context, the judge directed the jury: [54]

“ I suggest you decide firstly whether you are sure that the 2^nd defendant was the first person to use the umbrella stand, that is person ‘F’, or whether he might have been person ‘E’, that is someone who played a relatively minor role in the assault. Once you have decided what role the 2^nd defendant played you then consider whether the prosecution have proven its case against him.

Remember the prosecution say that the 2^nd defendant is person ‘F’ and used the umbrella stand to hit Poon. And from that they say you can infer he himself intended really serious injury to Poon, they say that even if the 2^nd defendant may have been person ‘E’ you can still be satisfied that he was at least aware of the real risk that one or more members of the group intended to cause Poon really serious injury.

Remember because all of the identifications of the other seven people, apart from ‘E’ and ‘F’, have been agreed, if you are not sure the 2^nd defendant was ‘F’ you must proceed on the basis he was ‘E’.  That is the only other person he could be and is the person he says he was.”

83.  In his reply, Mr McCoy submitted that the judge ought to have given the jury a “modified Kevin Brown direction” to the effect that, first they should determine whether or not they were sure, unanimously or at least by a majority of 5 to 2, that the 2^nd applicant was Male F.  If so, they should proceed to consider his culpability in accordance with the judge’s direction.  However, if they were not sure, unanimously or to the requisite majority, they were to consider his culpability on the assumption that he was Male E.

84.  Mr McCoy contended that on the directions that the judge gave the jury, given that the verdict of guilty was by a majority of 5 to 2, it was possible that three of the jurors did so on the basis that they were sure that he was Male F, whilst four of the jurors were not sure of that and proceeded on the basis, as directed by the judge, that he was Male E.  If that had happened then, it was suggested, it was possible that two of the jurors, given that the majority was only five, were not sure that the 2^nd applicant foresaw the risk that one of the group would intentionally cause the deceased really serious bodily harm or thought he had had withdrawn from the joint enterprise.  Finally, it was contended that it was possible that, if the three jurors who were not sure that the 2^nd applicant was Male F then proceeded, as required, to consider the position on the basis that he was Male E that one or more of them might not have been sure of his culpability, in the same way that two of the jurors were unsure given the actual 5 to 2 majority verdict.

85.  With respect to Mr McCoy, those submissions simply repeat the submission made a trial by counsel for the 2^nd applicant, and summarised by the judge in his ruling, [55] which submissions he rejected, as noted earlier, on the basis that: [56]

“ ..whether the 2^nd defendant used the umbrella stand or simply kicked the deceased is not an ingredient of the offence. It is a simple dispute on the evidence as to what actions the 2^nd defendant did during the assault on the deceased, the relevance of his actions going to the inference the jury may draw as to his state of mind.

In other words, his actions are not an ingredient of the offence.  They are a means to proof of an ingredient, and that ingredient, unlike in Brown and Mitchell, is not one of a number of alternative ingredients.”

86.  We are satisfied that the judge’s reasoned analysis and the decision that he reached in his ruling was correct.  There was no need to give a Kevin Brown direction in respect of the 2^nd applicant.

87.  Although it was contended in the grounds of appeal advanced on behalf of the 1^st applicant that the judge ought to have given a Kevin Brown direction in his case, no such application was made at trial and no argument supporting the contention advanced in this court.  As noted earlier, no issue arose at trial as to which of the persons depicted in the CCTV film was the 1^st applicant. Similarly, there was no issue that his role in the assault was to hit the deceased a number of times with the metal rod.  Clearly, no Kevin Brown issue could conceivably arise in respect of the 1^st applicant.

CONCLUSION

88.  In the result we dismiss the 1^st applicant’s application for leave to appeal against conviction.  We allow the 2^nd applicant’s application for leave to appeal against conviction, in respect of the manner in which the verdict of the jury was elicited and in respect of the alleged failure to give a Kevin Brown direction.  Treating the hearing of the application as the hearing of the appeal, we dismiss the appeal.

[1] CACC 153/2010.

[2] Lau Cheong & Another v HKSAR (2002) 5 HKCFAR 415; at page 465 I - 470, paragraph 170.

[3] R v Mohetuki [2009] 1 NZLR 619.

[4] R v Mohetuki, page 625, lines 15-25, paragraphs17-18.

[5] R v Mitchell , R v King (1998) 163 JP 75.

[6] R v O’Flaherty [2004] 2 Cr. App. R. 20.

[7] R v Mitchell and Ballantyne [2009] 1 Cr. App. R. 31.

[8] HKSAR v Chu Yiu Keung [2011] 2HKLRD 108; at page 120, paragraph 117.

[9] R v Brown (Kevin) (1983)79 Cr. App. R. 115.

[10] R v Carr [2000] 2 Cr. App. R. 149.

[11] Appeal Bundle, pages 244-5.

[12] Appeal Bundle, page 245 B-D.

[13] Appeal Bundle, pages 241-2.

[14] Appeal Bundle, page 103 Q-S.

[15] Appeal Bundle, page 107-8.

[16] R v Mohetuki: page 623, lines 25-35, paragraph 11.

[17] R v Mohetuki:page 624, lines 18-23, paragraph 14.

[18] R vMohetuki:page 625, lines 16-18, paragraph 17.

[20] Appeal Bundle, page 27 O-Q.

[21] Appeal Bundle, page 44 T.

[22] Appeal Bundle, page 28 K-M.

[23] Appeal Bundle, page 46 D-J.

[24] Appeal Bundle, page 47 L - page 48 C.

[25] Appeal Bundle, page 48 L - 49 F.

[26] Appeal Bundle, page 46 R-T.

[27] Appeal Bundle, page 49 M.

[28] HKSAR v Chu Yiu Keung; page 119-122, paragraphs 115 - 118.

[29] HKSAR v Chu Yiu Keung; page 120, paragraph 116.

[30] R v O’Flaherty; page330, paragraph 58.

[31] R v Whitehouse [1941] 1 WWR 112.

[32] R v O'Flaherty; pages 332-3, paragraphs 61-63.

[33] R v Mitchell and King, page 82 C-D.

[34] R v O’Flaherty; page 322, paragraphs 61.

[35] Appeal Bundle, page 64 A-N.

[36] Appeal Bundle, page 64 O-U.

[37] Appeal Bundle, page 65 A-E.

[38] Appeal Bundle, page 65 F-K.

[39] Appeal Bundle, page 66 F-J.

[40] Appeal Bundle, pages 15-6.

[41]     Appeal Bundle, page 21 J-N.

[42] Appeal Bundle, page 21 Q-R.

[43] Appeal Bundle, page 22 D-H.

[44] Appeal Bundle, page 22 Q - 23 A.

[45] Appeal Bundle, page 23 G-H.

[46] Appeal Bundle, page 23 R-U.

[47] Appeal Bundle, page 24 E-N.

[48] Appeal Bundle, page 24 O-Q.

[49] Appeal Bundle, pages 24 T - 25 I.

[50] R v Brown (Kevin), page 119.

[51] R v Carr, page 158 E-F.

[52] Appeal Bundle, page 22 C.

[53] Appeal Bundle, page 23 G-H.

[54] Appeal Bundle, page 42 I-T .

[55] Appeal Bundle, page 21 Q-R.

[56] Appeal Bundle, page 22 Q-U.