HKSAR v. YEUNG CHUN PONG ANDREW

HCCP 729/2020

[2021] HKCFI 2321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) CASE NO 729 OF 2020

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REASONS FOR RULING

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Application for bail

1.  Yeung Chun Pong, Andrew, hereafter “the Applicant”, faces a charge of murder and a charge of wounding with intent.  He has applied to this court for bail.

Preliminary considerations

2.  For the purposes of bail, murder is treated differently to most other offences.  Under section 9G(10) of the Criminal Procedure Ordinance, Cap 221, a person charged with murder shall only be admitted to bail on the order of a Judge of the High Court.

3.  The Applicant was arrested on 7 October 2020 and was put up before a magistrate at the Kowloon City Magistrates’ Court.  He applied to be admitted to bail before a Judge of the Court of First Instance on 15 December 2020.  That application was refused. So far as progress before the magistracy is concerned, the case is presently adjourned to 11 August 2021. The object of the adjournment is to permit the prosecution to obtain reports from the Government Laboratory and a forensic pathologist.

4.  The present application for bail was lodged on 28 June 2021. The Applicant asserts that there are within the meaning of section 9G(11)(b), new grounds which would justify a further hearing of the application. Essentially, the contention is that service by way of disclosure by the prosecution of a video which is said to support the contention that the Applicant was seen picking up a metal table frame and throwing it in the direction of the deceased. This was supplied on 2 July 2021 to the legal representatives of the Applicant.  The Applicant contends that the vision supplied by the prosecution shows no such thing.  It is contended by the Applicant that the description of the conduct of the Applicant given in the previous bail application hearing by the prosecution in the Court of First Instance was inaccurate.

5.  The essence of the prosecution case is that this was a clash of 2 gangs at a bar in Tsim Sha Tsui.  The case for the prosecution is that the deceased was killed following the dispute, or alternatively, he was killed in the course of the dispute.

6.  The respondent does not resile from its position but points to 3 other items of evidence.  First of all, it says that there is an identification of the Applicant by a witness who places him in the bar where the incident occurred.  The case for the prosecution is that the Applicant was a member of one side of the dispute and the deceased was a member of the other side.  The group which it is said that the Applicant was a member of that group, which started assaulting the other group and threw hard objects including bottles, glasses and chairs at them.  The group who comprised, amongst others, the deceased retreated behind the bar.  The deceased was certified dead at 1:30 AM.  The initial assault on the group of whom the deceased was a member occurred between at about 12:39 AM to 12:47 AM.  The prosecution say that the Applicant came into the bar at a time when the assault was commencing.  There is no allegation that he specifically took any action at this time.  It is said that the deceased was hit with a bottle, and it would be open to a properly directed jury in due course to conclude that he died from that hit.  Significantly, the bottle was thrown by another person, other than the Applicant, and this occurred fairly early on in the disturbance in the bar. Three minutes after the Applicant arrived, the prosecution say he left the bar but returned about 2½ minutes later with further persons.  The prosecution case is that this was the accused returning with reinforcement. The case for the prosecution is that at 12:44 AM the Applicant was seen holding onto a bottle, at 12:45 AM he was seen picking up a large metallic frame and throwing it in the direction of the bar where the other group including the deceased were present.  There is no evidence at this stage that the deceased was, in fact, dead or that anyone on either side of the disturbance knew that he was dead at this juncture. It is said that at 12:46 AM the Applicant left the bar.

7.  The prosecution contends that there is no material change in the circumstances to justify the Court listening to this application with the consent of those representing the Applicant.  Nevertheless, I was shown a further clip of CCTV taken from a different angle, which the prosecution says shows the Applicant throwing the metal table support in the direction of the bar.

8.  In my opinion, there is a material change in the circumstances in that it could be said (I make no finding on the matter) that the first CCTV clip is not as supportive of the prosecution case as the prosecution initially said it was and that there is a new set of images from CCTV which supports the original contention of the prosecution.

9.  Pausing there, the second CCTV clip has not yet been disclosed to the defence.  The justification for such non-disclosure asserted by the prosecution is that there are risks that it could be misused by the accused in relation to persons which might still be at large.  I make no comment in relation to this as orders for disclosure are outside the range of issues that I am called upon to adjudicate in this case.  Obviously, there will have to be a time when that second CCTV clip is disclosed.

Issues for consideration

10.  The issue is whether bail should be granted. The central contentions of the Applicant is that the evidence arrayed against the Applicant is either weak or non-existent to the extent that there are no substantial grounds for believing that the Applicant would, within the meaning of section 9G(1) would -

(a)  fail to surrender to custody as the court may appoint; or

(b)  commit an offence while on bail; or

(c)  interfere with a witness or pervert or obstruct the course of justice.

11.  The Applicant has a previous conviction a long time ago.  I do not propose to take that into account.

12.  The prosecution submits that the evidence is at least sufficient to justify the charge.  The case for the prosecution is that the Applicant joined a joint enterprise and agreed to take part in the assault and it is immaterial that the Applicant actually, as to who actually inflicted the fatal blow, provided that such blow was inflicted with intent to kill or to cause grievous bodily harm and that the Applicant joined the joint enterprise in that regard.  The prosecution supports this contention by reference to HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640.  This is the authoritative statement of the law of liability for a crime under the doctrine of joint enterprise in this jurisdiction.  Counsel for the Applicant, Mr David Boyton, barrister at law, indicated that the scope of the doctrine is under consideration in the context of public order offences.  He contends that there is no evidence of causation.  Recently in HKSAR v Lo Kin Ma, FAMC 12/2020, dated 18 May 2021, the Court of Final Appeal granted leave to an Applicant as to whether the statutory requirements of the offence of riot under section 19 of the Public Order Ordinance, Cap 245, exclude the application of the doctrine of joint enterprise.  That may be so, but it seems to me that the doctrine of joint enterprise was almost written for the factual circumstances which underlie the present case.  As to the issue of causation, it is, under the doctrine of joint enterprise, not necessary to prove that a person in the position of the Applicant caused the injuries which led to the death of the deceased, provided at the material time he had joined that joint enterprise.

13.  It is contended that the worst that the Applicant is likely to face is a charge of wounding with intent.  I disagree.  If he is correct, all of the problems that Mr Boyton contends exist with respect to the murder count, also exist with respect to the wounding count.

14.  It will be for the jury to determine if there was a joint enterprise and whether one of the members of the joint enterprise caused the death of the deceased and intended to kill or to cause grievous bodily harm at the time of the act which caused death.  I have only been given a very limited picture of the facts in this bail application.  That is perfectly appropriate given the nature of the proceedings but on the facts and, in the circumstances available to me, it seems that even if the evidence stands as it is at the moment, and even if the person who later died was down at the time of the acts of the Applicant, it would be open to a properly directed jury under the doctrine of joint enterprise to render the Applicant criminally liable. Whether the jury does that is a matter for the future.  On the evidence revealed to this Court in these proceedings, as it stands at the moment, I think it would be open to a jury to come to that conclusion.

15.  The conclusion articulated in the last sentence of the preceding paragraph has to be understood on the basis for the facts and circumstances which underly that conclusion.  I have not tried the offence and have heard not a word of evidence.  Both parties took a highly practical approach in showing to me the original CCTV clip and the subsequent (but as yet undisclosed) CCTV clip.  The other facts and circumstances I have derived from the written and oral presentations of the parties, which is the almost invariable mode of proceeding in bail applications.  Such a mode of proceeding and source of information is abundantly justified: section 9N of the Criminal Procedure Ordinance.

16.  This application has been conducted with an admirable sense of realism on both sides.  It was accepted that if I came to the conclusion that a properly directed jury could, on the evidence shown to me, convict the Applicant on the charge of murder, then the charge and the evidence are so serious that I would be justified in coming to the view that there were substantial grounds for believing that the accused would -

(a)  fail to surrender to custody as the court may appoint; or

(b)  commit an offence while on bail; or

(c)  interfere with a witness or pervert or obstruct the course of justice.

My view of the matter is that certainly considerations (a) and (b) exist.  Given the nature of the joint enterprise, which appears to me to have existed, I am also of the view that there are substantial grounds for believing that the Applicant would commit an offence while on bail and the offence or offences which would be the principal concern in this regard are that he would interfere with a witness or pervert or obstruct the course of justice, all of which are criminal offences.

Conclusion

17.  It follows from that the application for bail must be refused for the reasons I have identified.