HKSAR v. LAM SHING TAK

CACC 490/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 490 OF 2001

(ON APPEAL FROM HCCC NO. 57 OF 2000)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Background

1. The applicant, Lam Shing Tak appeared before Jackson J with a jury on an indictment consisting of the 1st charge of kidnapping and the 2nd charge of murder. On 5 October 2001, the applicant was convicted of both charges and sentenced to the respective terms of 18 years imprisonment and life imprisonment.

2. On 12 October 2001, the applicant applied for leave to appeal against both conviction and sentence. On 25 July 2002, the applicant filed a notice of abandonment of appeal against sentence and the same was dismissed.

3. On 12 March 2003, through his counsel Mr. Raymond WK Wong, the applicant requested to revive his application for leave to appeal against sentence in respect of the "kidnapping" charge.

4. The application was taken as an application for leave to treat the abandonment of appeal against sentence as a nullity.

5. We are therefore concerned with the application for leave to appeal against conviction and the application for leave to treat the abandonment of appeal against sentence in respect of the "kidnapping" charge as a nullity.

The Facts

6. The victim was a 4-year-old boy Law Shui-wai, who at the material time was living with his father Law Tai-yau in Wong Chuk Hang Estate. His decomposed body was found floating in the sea near Tsing Yi Island on 3 July 1999. The body was wrapped in adhesive tape with his two thumbs tied together with a plastic strap. The pathologist suggested that Shui-wai might have drowned. It was also possible that he had been suffocated or died from a drug overdose before being put into the sea.

7. Shui-wai was in fact abducted at about 5 p.m. on 30 June 1999 at Wong Chuk Hang Estate. Shortly before 5 p.m. his father collected him from the kindergarten and they walked to a take-away food shop. Mr. Law went in to collect food that he had earlier ordered while Shui-wai waited outside. When Mr. Law came out, Shui-wai was missing and a report was made to the police.

8. A nearby surveillance camera captured the abduction of Shui-wai. The video recording showed how Shui-wai was lifted up and taken away. Two passers-by claimed to have seen a crying boy being carried away. However, on 7 July 1999, they made wrong identifications at parades in which the applicant took part.

9. Shui-wai's mother, Ng Yu-ping (PW2) separated from Mr. Law and moved out of the matrimonial home at Wong Chuk Hang Estate in January 1999. Apparently Mr. Law was a chronic gambler and was heavily indebted. There were frequent quarrels and debt collectors also often harassed the family.

10. PW2 met the applicant in 1997 when they were both working at the Ocean Park. When PW2 had the discord with Mr. Law, she sought advice from the applicant and they then became lovers. There was talk of marriage.

11. PW2 moved to live with the applicant in his Yuen Long premises in early 1999. PW2 said she told the applicant Shui-wai's daily routine, including his school hours and the arrangements for his delivery and collection.

12. PW2 loved Shui-wai and wanted to live with him. But the applicant would not accept Shui-wai and in fact resented him a lot. PW2 therefore moved out from the Yuen Long premises to a flat in Sai Wan Ho on 28 June 1999 after she found a job at a Japanese restaurant. The applicant had requested and then insisted that PW2 move back with him to Yuen Long but PW2 refused. The applicant asked PW2 why she was leaving him and PW2 told him that it was because he could not accept her son.

13. After the disappearance of Shui-wai, the applicant went to Aberdeen Police Station on a number of occasions. Initially the applicant accompanied PW2 there. Subsequently he was interviewed by the police.

Prosecution Allegation Against the Applicant

14. It was the prosecution case against the applicant that he was obsessive about PW2 and regarded Shui-wai as an obstacle in his relationship with her. In order to get rid of Shui-wai, the applicant abducted and killed him.

The Evidence

15. PW2 detailed her relationship with the applicant and how he resented Shui-wai. He objected to her telephoning and seeing the boy and said he was Mr. Law's responsibility. The applicant often abused the boy verbally and had threatened to throw him out of the car window on an outing with the boy. He objected when PW2 indicated that she wanted to take the boy to the Yuen Long premises. When PW2 asked him to accept the boy, the applicant refused, saying he did not want the boy. He also said his mother and friends would not accept the boy either.

16. When the applicant asked PW2 why she had to move out from the Yuen Long premises, PW2 said it was because she wanted to live with and take care of the boy since the applicant would not accept him.

17. PW2 said the applicant gave her a new mobile telephone and took away her old one on 29 June 1999. The reason he gave was that he did not want Mr. Law to contact PW2.

18. PW2 also detailed the events on 30 June 1999 after Shui-wai was abducted. She said when she telephoned the applicant, the applicant said he was in Causeway Bay and would meet her when she finished work at 11 p.m. When the applicant failed to keep the appointment, PW2 telephoned him again. The applicant then said he was driving in a tunnel and asked PW2 to return to her flat on her own. Shortly before 1 a.m. the next day, the applicant telephoned PW2 and said he had a punctured tyre.

19. PW2 also said the applicant returned to her Sai Wan Ho flat at about 1.40 a.m. looking pale, tense and nervous. PW2 also noticed injuries on his hand. The applicant then had a shower and when he was doing it, he tripped over and fell to the floor, something that she said was unlike him.

20. When PW2 heard of the disappearance of Shui-wai, she initially blamed Mr. Law. When the applicant overheard her conversation with the police, he persuaded her to emphasise the extent of Mr. Law's indebtness. The applicant also asked PW2 to relate to him every detail of her discussions with the police. By that time, Mr. Law had already told PW2 that it was a person with long hair who had abducted Shui-wai.

21. PW2 spent the night on 1 July 1999 in Yuen Long. She said the applicant's laundry had been removed and she found it strange, as it was his habit of taking his clothing to laundry only once a week.

22. PW2 said when the applicant was driving her around to look for Shui-wai on 2 July 1999, Mr. Law called and said the police wanted to see the applicant. When PW2 related the message to the applicant, the applicant said he could not go to the police station, as he needed time to think about the matters. The applicant then drove PW2 to the police station at 11 am when he himself only went there in the afternoon.

23. In the meantime, the police had searched the applicant's premises and found personal correspondence between PW2 and Mr Law.

24. PW2 said after the disappearance of Shui-wai, she saw the applicant in the early hours on 3 July 1999 at Western Police Station. She asked the applicant if he had taken her son. The applicant denied the allegation. However the applicant admitted to have taken documents and correspondence from Mr. Law's flat at Wong Chuk Hang on 1 July 1999.

25. PW2 also said on that occasion she noticed that the applicant had his hair cut. The applicant, according to PW2 looked totally different and she could hardly recognize him.

26. PW2 said she had thrice watched the video recordings which captured the abduction of Shui-wai. She said it was the applicant who did it. Initially she said she was able to see his face. Later she said, " I saw his movements, the way he walked, and his hair, many things. I know it is him."

27. Apart from the evidence of PW2, there was other circumstantial evidence supporting the prosecution allegations against the applicant.

28. Such circumstantial evidence included lies told to the police, forensic evidence and the chemist's evidence.

The Lies

29. The applicant was interviewed by DPC 19065 on 2 July 1999 and was asked to give a detailed account of his movements on 30 June 1999. The account given by the applicant suggested that he was never in the vicinity of Wong Chuk Hang Estate on 30 June 1999. In particular, the applicant said from 3-4 p.m. to 8 p.m. he was going from Wanchai to Tsing Yi MTR Airport Line Station where he stayed to look at some shop premises. At 8 p.m. the applicant returned from Tsing Yi to go to his Yuen Long premises where he remained until he left for Shau Kei Wan to pick up PW2 at 10.30 p.m.

30. The applicant said when he was on the Yuen Long highway, he had a tyre puncture and only arrived at Shau Kei Wan at 12.30 a.m. by which time PW2 had already left. The applicant then left Shau Kei Wan and arrived at the Sai Wan Ho flat at about 1 a.m.

31. According to DPC 19065, the applicant also told him that his hand was injured in the course of changing his car tyre.

32. However, the applicant's account did not match his mobile telephone records. It was not disputed that a mobile telephone of the People's Telephone Company was registered in the applicant's name and that on 30 June 1999, the applicant was in possession of that telephone.

33. The telephone records revealed that from shortly after 3 to 5.11 p.m. on 30 June 1999, the applicant was actually in the vicinity of Aberdeen/Ap Lei Chau area, near the place where Shui-wai was abducted and not Tsing Yi.

34. The telephone records also revealed that the applicant then travelled to Yuen Long (via Pokfulam, Western Harbour Tunnel and Tuen Mun Highway) and that he was in Tsing Yi at 11.43 p.m.

35. There was a further formal interview of the applicant by the police on 4 July 1999. The applicant, in the presence of his solicitor, was asked some 90 questions, the overwhelming majority of which he declined to answer. What he did answer was wholly exculpatory.

The Forensic Evidence

36. In the course of the police investigation, a plastic glove, a packet of plastic fasteners and a number of personal items were seized from the applicant's home. Those items were then subject to DNA tests. The expert concluded that there were 8 matching points of DNA make-up between Shui-wai's blood sample and the outside of the plastic glove and 9 matching points of DNA make-up between the inside of the plastic gloves and 10 personal items of the applicant.

The Chemist's Evidence

37. The chemist compared the plastic fastener used to tie up the thumbs of Shui-wai and the packet of plastic fasteners found in the applicant's premises. The chemist concluded that the plastic fastener used to tie up the thumbs of Shui-wai was highly likely to have come from the packet seized from the applicant's home.

The Defence Case

38. The applicant denied the charges. He said he had affection for PW2 but did not see their relationship as a long-term one. It was not because PW2 was married and had a child but because he missed his ex-girlfriend and he also found PW2 too dominating. The applicant denied having told PW2 that his mother would not accept Shui-wai.

39. The applicant also denied showing any hostility towards Shui-wai and claimed only to have seen him once.

40. The applicant gave detailed evidence on his activities on 30 June 1999 with reference to the telephone records. He agreed that he was in the general area at various times as indicated by such records. Indeed, the applicant had served a "Formal Notice of Alibi" which was consistent with his evidence in court.

41. He said he was in Wong Chuk Hang area in the morning trying to look for a company by the name of Kar Tat but was unsuccessful. He had lunch with PW2 before returning to the Yuen Long premises to check the address. He then drove to Wong Chuk Hang again and arrived there at about 4 p.m. when he received a call from a friend. He continued to search for the company, street by street, but still couldn't locate it.

42. At some time after 4.30 p.m. he drove into a minor street in Ap Lei Chau Main Street and stopped to buy some food. His telephone rang but just once. That was the call at about 5.10 p.m. The applicant said he then gave up looking for the company and drove home to Yuen Long via Pokfulam, the Western Harbour Tunnel and Tuen Mun Highway.

43. He stayed at home until 10.30 p.m. before going to Kam Tin to get some food. The applicant agreed that he received 2 calls from PW2 at 11.18 and 11.30 p.m.. He said he was then heading for Shaukiwan along Tsuen Wan Highway and Texico Road in the fast lane. Somehow, he got into the wrong lane and ended up in Tsing Yi. That explained why he was near the Serene Gardens in Tsing Yi when PW2 called him at 11.43 p.m.

44. The applicant denied having told PW2 that he had a punctured tyre. He said he arrived at PW2's flat shortly after midnight with his own key. He agreed that he slipped on the floor after taking a shower.

45. The applicant said PW2 did tell him that the police wanted to see him when he drove her to the Aberdeen Police Station on 2 July 1999. He denied however telling PW2 that he needed time to think about the matters as he would not know how to answer the police questions. He only complained that PW2 did not tell him earlier. He then arranged to go to the police station at 3 p.m. He admitted that he had a hair cut before going to the police station, but the haircut was a normal one.

46. The applicant complained that he had not been treated properly by the police when he went to the police station at about 2 p.m. He said he was roughly handled and searched without his consent. He was then interrogated about his activities on 30 June 1999. He asked to use a telephone to contact a lawyer. Not only did the police refuse his request, they even assaulted him.

47. The applicant said DPC 19065 had lied to court. He said he did not tell the police about his activities on 30 June 1999. The record that the police had of the conversation was not a true record. The police just made it up. The applicant repeatedly emphasized in his evidence that the record was not something made under caution and had not been admitted as evidence. He also said he had not signed it.

48. The applicant insisted that he did not mention a punctured tyre. He was however unable to explain why both PW2 and DSPC 19065 made the same allegation against him.

49. The only explanation for the DNA evidence he could offer was that he had used the plastic glove to handle some toys to prevent them being soiled. On the only occasion he met Shui-wai, he was crying and somehow he might have left some mucous or teardrops on the toys. He said the correspondence between PW2 and Mr. Law was given to him by PW2.

50. The applicant denied the suggestion that he changed his story when confronted with the telephone records. He said he did not have any injury to his hand. He also denied the suggestion that he was dealing with Shui-wai between 6 and 11 p.m. on 30 June 1999.

The Judge's Ruling on the Voire Dire and the Summing Up

51. The prosecution sought to adduce the evidence of DPC 19065 on the applicant's account of his movement on 30 June 1999, but not the notes DPC 19065 made at the interview. The prosecution also wanted to produce the record of interview with the applicant on 4 July 1999. The defence objected. The judge ruled after a voire dire that both the evidence of DPC 19065 and the record of interview on 4 July 1999 were admissible.

52. The judge gave detailed direction to the jury on both the facts and the law. In particular, the judge reminded the jury on how they should approach the circumstantial evidence and the "lies" of the applicant if they did find that the applicant had lied.

53. Mr. Lok, SC on behalf of the applicant raises no issue on the judge's ruling and summing up.

Questions from the Jury and the Further Direction by the Judge

54. Shortly after the jury retired to consider the verdict, they came back with the following two questions:

"Could the jury have a copy of the record of the whereabouts of the defendant on 30 June 1999 allegedly confessed by the defendant to the police as recorded by DPC 19065?"

"When was such record first received by the court/the defence counsel?"

55. After discussing with counsel, the judge decided that the jury should be told "No" to the 1st question, as the record (a note pad) was not in evidence as an exhibit. The judge also indicated that if the jury wished to be reminded of the evidence of DPC 19065, he would do so. In relation to the 2nd question, the judge said his initial inclination was to tell the jury that the court and defence counsel had had copies of the note pad and access to it "for many months". After further discussion, this was changed to "since last year".

56. The aforesaid approach had met the express agreement of the applicant's trial counsel, Mr. Dinan.

57. The jury was then recalled and the judge gave the following further direction to them:

"Mr. Foreman, gentlemen of the jury, you have sent me two questions which I have discussed with counsel. The first question you asked me is this: "Could the jury have a copy of the record of the whereabouts of the defendant on 30 June 1999 allegedly confessed by the defendant to the police as recorded by DPC19065?" Well, the answer to that question is: No, I'm afraid not. Simply for this reason: because that record is not in evidence before you as an exhibit. I can say no more about it than that.

What I will say is this, if you wish me at a later stage perhaps to remind you again of that police officer's evidence concerning the content of his notepad, and you will remember I reminded you of that yesterday, I can certainly do that, and no doubt you will ask me at a later stage if you wish me to do so.

The second question which you asked is this: "When was such record first received by the court/the defence counsel?" The answer to that is this: The court and defence counsel have had copies of the notepad and have had access to the original since last year. So those........"

58. Before the Judge had completed the sentence, there were then the following exchanges:

"Foreman: What - exact time?

Court: The date, please?

Mr. Dinan: 23 February 2000.

Court: Thank you very much, Mr. Dinan. That is the answer to that, 23 February 2000. Thank you, members of the jury."

Grounds of Appeal

59. The grounds of appeal against conviction are premised on the aforesaid further direction given by the judge in response to the questions by the jury.

60. Mr. Lok, on behalf of the applicant suggests that the questions by the jury indicated they might have been troubled by certain aspects of the evidence or they might have misunderstood or forgotten the direction on the burden of proof. In the premises, it was incumbent upon the judge to ascertain the problem that the jury had and then respond accordingly instead of just giving direction to them in general terms. Mr. Lok relies on Berry v The Queen [1992] 2 AC 364.

61. In so far as the judge, in response to the 2nd question by the jury, mentioned 23 February 2000, the judge in effect provided further evidence to the jury. Mr. Lok submits that what the judge did constitutes a material irregularity.

62. Every accused charged with an offence has the constitutional right to a fair trial, conducted in accordance with the law. The trial judge must ensure that the accused's right has not been compromised and in so doing he may have to exercise his judgment or discretion in an infinite variety of circumstances. An appellate court should not interfere with such exercise of judgment or discretion unless there is resulting unfairness or injustice.

63. If there is any indication from the jury that they have any problem, be it on matters of law, or of facts or on procedure, the trial judge of course must ascertain the nature and extent of the problem and then give appropriate assistance to the jury to ensure that the trial is a fair one. The aforesaid proposition is so fundamental that perhaps no supporting authority is required.

64. The nature of the inquiries undertaken by the judge and the extent of assistance rendered to the jury must of course depend on the facts of each case. It must also be borne in mind that the relevant rules of evidence and rules of procedure have to be adhered to. But the judge should only deal with the particular question raised by the jury. Any attempt to go beyond the question may constitute an interference with the decision making function that solely belongs to the jury.

65. The judge had already given a comprehensive and balanced direction to the jury. There was no suggestion to the contrary. It must be assumed, unless demonstrated otherwise that the jury understood and was able to follow such direction.

66. When the jury asked for a copy of the notes made by DPC19065 of the interview with the applicant on 2 July 1999, the request was plain and within a narrow compass. Their problem was reflected in the very questions they asked.

67. It may well be futile to speculate as to why the jury wanted a copy of the notes and wanted to know the time it was received by the court and the defence. There was certainly no indication that they had any difficulty with the direction from the judge. There was no basis for suggesting that the jury might have misunderstood or forgotten the direction on the burden of proof or on any other aspect.

68. What else could the judge have done in the circumstances? The jury asked for something that they should not see. The request was simple and straightforward. It was not acceded to. The prosecution had not sought to adduce a copy of the notes as evidence. The defence would certainly have objected its production. If further questions were to be directed at the jury to find out why they had asked the questions, the court could well be accused of interfering with the jury's deliberation, if not trying to influence its decision.

69. The judge dealt with the matter in open court and allowed counsel the opportunity to address the court so as to ensure that the matter would be properly dealt with. Counsel had expressly agreed to how the matter should be disposed of.

70. The copy of the notes could only be relevant to the veracity of the evidence of DPC19065 who had related in detail what according to the applicant were his movements on 30 June 1999. It had been suggested to DPC19065 that the conversation never took place and it was a total fabrication. The applicant himself gave evidence to such effect. In his evidence, he had emphasized that the record was not made under caution and had not been admitted. He also repeatedly said he had not signed the record.

71. Accordingly, one of the issues for the jury was who was telling the truth and here the judge had given a clear and comprehensive direction on such issue. The judge had taken the precaution of telling the jury that if they needed to be reminded of DPC19065's evidence, this would be done.

72. There was no request for such further direction.

73. The judge had properly and adequately dealt with the 1st question raised by the jury. Mr. Lok's primary complaint is unjustified.

74. Mr. Lok also complains that the jury had used the word "confession" in the 1st question they raised. With respect, the jury was referring to "the record...allegedly confessed by the defendant..." It was just a loose use of language by laymen. There is nothing in this complaint.

75. It is true that neither the prosecution nor the defence adduced any evidence on the date when a copy of the notes made by DPC19065 of the interview with the applicant was given to the court/defence counsel. To that extent, when the jury was told that the date was 23 February 2000, the jury was given additional evidence.

76. It is, however, in our view crucial to bear in mind that before the judge gave the further direction to the jury, he had discussed the matter fully with counsel and it was agreed that the jury could be told- "the court and defence counsel had copies of the note since last year". When the foreman asked for the exact date, it was Mr. Dinan who mentioned, "23 February 2000."

77. There could be no material difference between "since last year" and "23 February 2000". Mr. Dinan must have taken the view that mentioning "23 February 2000" would benefit the applicant or at least not be prejudicial to him.

78. Mr. Saw SC, counsel for the respondent has referred us in his skeleton submission to the different approaches adopted in UK, Australia and Hong Kong on the issue of whether further evidence may be adduced after the jury has retired to consider their verdict. This is the only aspect that has caused us concern.

79. It is said that the English authorities support an absolute prohibition against further evidence to be provided to the jury after the conclusion of the summing-up. It may be helpful to repeat the summary in Archbold: Criminal Pleading, Evidence and Practice 2003 Edition para 4-418:

"The general principle was summed up as follows by Lord Widgery C.J. in R. v. Davis, 2 Cr. App.R. 194, CA

'...The jury may not when they have once retired to consider their verdict be given any additional evidence, any additional matter or material to assist them. They can come back and ask the judge to repeat for their benefit evidence which has been given, but they cannot come back and ask for anything new and the judge must not allow them to have anything new' (at p.201).

The objection to admitting further evidence is not confined to the calling or recalling of witnesses (as to which see R.v. Owen [1952] 2 Q.B. 362, 36 Cr. App. R. 16, CCA, and R. v. Wilson, 41 Cr. App. R. 226, CCA. R. v. Davis, ante, concerned the provision to the jury of prosecution witness statements which had not been exhibited. In R. v. Gearing, 50 Cr. App. R. 18, CCA, the jury stated they would like to see a co-defendant who had pleaded guilty. The co-defendant was thereupon brought into the dock; the conviction was quashed. In R. Corless, 56 Cr. App. R. 341, CA, the jury said they would like further information on the distance between various points. Defence counsel made a statement which was treated as an admission under section 10(1) of the Criminal Justice Act 1967: the conviction was quashed. In R. v. Lawrence, 52 Cr. App. R. 163, CA, the jury asked to see a vehicle which had been referred to during the evidence and were allowed to inspect a Vauxhall Viva on the basis that this would not constitute the introduction of fresh evidence but a mere inspection of the locus in quo. No evidence in relation to the identity of the vehicle inspected was given: the conviction was quashed. Cf. R. v. Nixon, 52 Cr. App. R. 218, CA, where a car was shown to the jury in similar circumstances; the appeal was dismissed. The inspection was suggested by defence counsel in his closing speech and took place at the stage it did with his express consent. Identification of the vehicle presented no difficulty since the index number was referred to in the indictment."

80. Mr. Saw agrees the position in England is that there is an absolute prohibition against providing the jury with further evidence or materials after they have retired but emphasizes in his written submission that the response to the jury's second question was given with the explicit consent of both counsel and indeed defence counsel volunteered the exact date. Mr. Saw suggests that the applicant has therefore not been prejudiced. He submits that the English position is quite simply wrong and in support of this, has relied on a number of Australian authorities.

81. Goddard LCJ said in no uncertain terms in R v Wilson 41 Cr. App. R. 226 at p.229:

"This court has laid down in Owen, 36 Cr. App. R. 16; [1952] 2 Q.B. 362, that once the summing-up is concluded and the jury are sent out to consider their verdict, no further evidence can be given. We said that in perfectly clear terms. We have said ....that if the jury ask a question, the right thing 'is for the judge to tell the jury, if it is the fact, that no evidence on the point has been given and they must take it, therefore, that there is no evidence upon it, though, of course, if they ask a question upon which evidence has been given, it is quite right for the judge to remind the jury of the evidence. We think this is the only safe practice, and it ought to be followed."

"We quashed the conviction for the reason that the witness was recalled after the close of the case, after the summing-up, and we further said in Owen's case....'We think it right to lay down that once the summing-up is concluded, no further evidence ought to be given. The jury can be instructed in reply to any question they may put on any matter on which evidence has been given, but no further evidence should be allowed.'........... It seems to us that the maintenance of the principle laid down in Owen's case (supra) is more important than the result of this particular case. If we had power to order a new trial, this is obviously a case in which we should do so, because the result of this appeal is that a man who is obviously guilty and has several previous convictions, including a sentence of corrective training, gets release because of this unfortunate mistake which was made in the court below. We think that we are bound to uphold the principle laid down in Owen's case (supra), and that if we were to apply the proviso to section 4 (1) of the Criminal Appeal Act, 1907, it would be in effect over-ruling Owen's case (supra)."

82. Does the fact that the further evidence is given with the consent of both counsel for the prosecution and the defence make a difference? In R v Corless, 56 Cr. App. R. 341 and R v Nixon, 52 Cr. App. R. 218, the additional information to the jury after they had retired to consider their verdict was provided with the express consent and at the express wish of the defence. Nevertheless this was said to have constituted an irregularity in procedure (although the court applied the proviso in Nixon's case).

83. We must say we are surprised by the rigidity of such prohibition if indeed this represents the true position in England and we have tried to explore the logical foundation for such rigidity. Neither Corless nor Nixon provides any. In Nixon the court simply "took the view that the strict rule that no evidence of any kind may be admitted after the end of the summing-up, still less after the jury have retired, must be enforced".

84. In Corless, the prosecution in fact accepted that there was an irregularity and invited the court to apply the proviso.

85. The only clue appears in R v Owen, 36 Cr. App. R. 16 which many regard as the origin of the prohibition against further evidence to the jury after they have retired. Goddard L.C.J said at page 22,

"The theory of our law is that he who affirms must prove and therefore it is for the prosecutor to prove his case, and if there is some matter which the prosecution might have proved but has not, it is too late, after the summing up, to allow further evidence to be given, and that whether it might have been given by one of the witnesses already called or whether it would necessitate, as in Browne's Case (supra), the calling of a fresh witness. If this were allowed, it is difficult to see what limitation could be put upon it. A witness might be called who would then be open to cross-examination and the defence might then apply to call further evidence in answer. In this case it is quite true that the question asked by the jury was most pertinent, and it is not an unfair assumption to make that their verdict depended upon the answer which the doctor gave. If he had said other people were likely to be at the clinic at the time, it is a reasonable assumption that the jury would have said Not Guilty. As his evidence was that there were no people about at the time, it is quite easy to see that the jury thought this was a vital point, and almost immediately after the evidence had been given they returned a verdict of Guilty. We think they ought to have been told that the prosecution had laid before them such evidence as they had thought fit and the evidence could not now be reopened."

86. In R v Wilson (supra), Goddard L.C.J. simply repeated the same point.

87. It can be readily seen from Owen (supra) that the prohibition against further evidence after the jury have retired is necessary to prevent attempts to clarify what otherwise may constitute a doubt on the guilt of an accused. In this situation, we agree it is clearly undesirable and unfair to allow further evidence before the jury when without such evidence, "the jury would have said Not Guilty".

88. The point was clearly demonstrated in R v Browne, 29 Cr. App. R. 106, referred to by Goddard L.C.J. in Owen (supra).

89. The head note in Browne (supra) is as follows:

"On a charge of obtaining money by false pretences, the defendant put forward the defence that he was at the material time suffering from loss of memory. No medical evidence was called either by the prosecution or the defence, but the defendant replied, in answer to a question by the Chairman that he had been examined by the prison doctor while in custody awaiting trial. After the summing-up, the jury, before they retired, requested that medical evidence on the defendant's mental condition should be called, but the Chairman declined to accede to the request. The jury retired to consider their verdict, and on returning into Court repeated their request for medical evidence. The Chairman then, despite a protest from defending counsel, called the prison doctor, who gave evidence. The jury convicted the defendant."

90. The Court of Criminal Appeal quashed the conviction. The reason is obvious as demonstrated in the judgment of Cassels J. at page 111:

"The medical officer was called and gave evidence, which undoubtedly was evidence for the prosecution, and was calculated completely to answer any suggestion which had been made by the appellant or his wife that the appellant was suffering from anything. He said that there was no medical term which could be in truth attacked to the appellant; that he was not suffering from anything."

91. However, in our view, the prohibition against further evidence for the jury after their retirement, when considered in its proper perspective cannot be as absolute as it appears in Nixon (supra) and Corless (supra) and other cases.

92. In fact, despite the strong words used by Goddard L.C.J. in Wilson (supra) and Owen (supra), a slightly different approach was adopted in R v Sanderson 37 Cr. App. R. 32 in which Goddard L.C.J also presided. In Sanderson (supra), defending counsel at the conclusion of the summing-up applied for leave to call a witness whom the defence had intended to call before the close of their case, but who arrived late in court. It deciding that in the particular circumstances of the case, there was no objection to the course followed, the court said at page 33:

"In Owen ..., it was held that it was wrong for witnesses to be called for the prosecution after the summing up, but we think that this case is distinguishable from that case because here that extra leave and liberty was extended to the defence. It is not a course one would wish to be taken often but, on the particular facts of this case, which we have carefully considered, we think that there is no objection to what was done here. The learned Recorder, we think, was fully justified in the unusual course he took in this case."

93. We find the decision in Sanderson (supra) difficult to be reconciled with the clear statement of law in Owen (supra) and followed in Wilson (supra), Nixon (supra), Corless (supra) and the like. This leads us to doubt whether the position in England is quite as strict or absolute as has been suggested by counsel. Nevertheless it is not our task to resolve what may or may not represent the position in England.

94. The strict application of the statement of law pronounced in Owen (supra) can lead to unnecessary obstruction to the requirement that the court should provide as much assistance to the jury as they reasonably require, not to mention that it may on occasion cause injustice.

95. For the sake of illustration, there may well be occasions when due to oversight or inadvertence, the jury is not informed before they retire of what has been agreed between the parties that they should be informed, particularly when this is necessary for the proper administration of justice and beneficial to the defence.

96. An absolute prohibition against presenting the jury with such further evidence with the explicit agreement of the parties not only defeats the proper administration of justice but can lead to unfairness and prejudice to the defence.

97. If volunteered information, presumably perceived to be favourable to the defence, given to the jury by defence counsel after the jury has retired can have the effect of annulling what would otherwise be a sound and proper verdict of the jury, this would reflect badly on the administration of justice. It can also lead to abuse.

98. This was recognized by the High Court in Australia when it dealt with the supposed absolute rule that in a criminal trial no evidence may be admitted after the summing-up has ended.

99. In Dryburgh v The Queen [1961] 105 C.L.R.532, it is stated at p. 535:

"Lord Goddard C.J. did indeed lay down such a rule in speaking for the Divisional Court in [Owen, Wilson and R Flynn (1957) 42 Cr App. R.15.]..... he insisted rigorously upon its observance, other learned judges concurring with him. The appellant would have us accept the rule in all its strictness, and hold that the breach of it in this case vitiated the trial. If it were not for his insistence that there be no new trial, we should have to decide whether in truth the rule has a place in the common law- there is no statutory basis for it - or whether the true principle is not that the trial judge has a discretion in the matter. If he has, it is necessarily a discretion to be exercised with such jealous concern for obvious possibilities of injustice that only in rare cases can it be right to admit the belated evidence."

100. In R v Hodgkinson [1954] VLR 140, Barry J considered the statement of law in Owen too absolute. He said at page 148:

"Furthermore, we think that the Lord Chief Justice's statement is too absolute, and to adopt it would be to ignore the cautionary observation of the majority of the High Court in Shaw's Case (supra), at p. 380, that it is 'unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial'. Indeed, the rule as laid down by C.J., Ormerod and Parker JJ., in Owen's Case (supra) was soon disregarded by a Court consisting of Lord Goddard C.J., Lynskey and Pearson JJ., in R. v. Sanderson (1953), 37 Cr. App. R. 32. In our opinion, when a jury desires that a witness should be questioned further at any time before verdict, that may be done, and we add that if the question is relevant, and no compelling contrary reason exists, it is desirable that such a request should be complied with."

101. It is interesting to note that just preceding the passage in Dryburgh set out above, the "absolute" rule is described in the following way: "Nevertheless the contention has been submitted that the conviction should be set aside on the ground that there is an absolute rule (save perhaps at the instance or with the consent of the accused) after the summing-up has ended". (emphasis added). This reinforces our doubts, expressed above, as to whether the position in England is as absolute as has been submitted. If it is, we are not inclined to follow it. This court in Fan Ping Sun [1986] HKC 358 did not find it necessary to resolve this question. We take the opportunity to state the position.

102. We are inclined to follow the less rigid approach suggested in the High Court of Australia. We are of the view that in appropriate cases, a trial judge does have the discretionary power to allow further evidence to be placed before the jury after summing-up or after they have retired to consider the verdict.

103. We want to emphasize, however, that such discretionary power can and should only be exercised in very special or exceptional circumstances.

104. We do not wish to lay down any rigid formula for the exercise of the discretion. What we can say is that the exercise of the discretion must not result in any unfairness or prejudice to the defence and must not operate to clear up what would otherwise be a doubt about the guilt of the accused.

105. We would also say this. Before further evidence is provided to the jury after summing-up or after they have retired, the matter must be canvassed in open court (of course in the absence of the jury). The trial judge should obtain as much as possible explicit agreement from counsel before further evidence is given to the jury. Both the trial judge and counsel must adhere to the agreement reached and not volunteer any information beyond the agreement (as Mr Dinan did in the present case).

106. In the present case, the jury was provided with the additional evidence with the consent of the parties.

107. Mr. Lok submits that the date had no bearing whatsoever to the guilt or otherwise of the applicant and the judge should not have allowed the jury to take irrelevant matters into consideration.

108. Again we do not want to speculate why the jury wanted to know the date. But the jury had asked for the information and the parties had agreed to provide such information. In fact it was Mr. Dinan who volunteered the exact information. When this was volunteered, he must have viewed such information as non-prejudicial or possibly beneficial to the applicant.

109. Mr. Lok's complaints rest entirely on the further direction given by the judge. The direction was, as we have already observed, given after discussion with and agreement by counsel. No complaint was then made about the questions asked by the jury and the answers to be given to them at the trial. The applicant cannot now complain.

110. We therefore reject any suggestion of procedural irregularity. We see neither unfairness nor injustice arising from the further evidence provided to the jury. This ground of appeal against conviction fails.

111. Even if we are wrong on this aspect and the admission of further evidence constituted an irregularity, the facts of the present case call for the application of the proviso.

112. Contrary to the written submission by Mr. Lok, the circumstantial evidence against the applicant was overwhelming. Such evidence not only demonstrated clear motive on the part of the applicant to kill Shui-wai, it also linked him to the acts of abduction and killing.

113. The applicant was in the vicinity where Shui-wai was abducted at about the time he was abducted. Later in the evening, he was in the vicinity where Shui Wai's dead body was subsequently found. The applicant lied on such matters. When he had to explain his whereabouts in the light of the telephone records (which were not disputed), his explanation of how he went to Wong Chuk Hang and could not locate the shop he was looking for and how he ended up in Tsing Yi because he got into the wrong lane was preposterous.

114. The DNA evidence suggests that he had come into contact with the boy. The link being a glove perhaps makes it even more sinister. The plastic fastener used to tie up the thumbs of Shui-wai was identical to the packet of plastic fasteners found in his home. All this was too much of a coincidence. The jury must have considered this part of the evidence carefully as directed by the learned judge in his summing-up.

115. The applicant's suspicious behaviour before, at or around the time of and after the abduction and killing, including the unusual removal of his laundry and his deliberate attempt to alter his appearance no doubt strengthened the adverse inferences that could be drawn against him.

116. We have carefully considered the evidence as well as the detailed and balanced summing-up by the judge on how the jury should approach the evidence. We are firmly of the view that the applicant has been rightly convicted. There is nothing unsafe or unsatisfactory about the conviction.

117. Thus, had it been necessary, we would have no hesitation in applying the proviso and confirming the conviction in any event.

118. The application for leave to appeal against conviction is refused.

Application for Leave to treat the abandonment of appeal against sentence as a nullity

119. Mr. Saw for the respondent concedes that the maximum sentence for the common law offence of kidnapping is 7 years imprisonment. The sentence of 18 years imprisonment imposed by the judge exceeds his jurisdiction and is therefore ultra vires.

120. We therefore grant leave and treat the abandonment of appeal against sentence in respect of the kidnapping charge as a nullity. We also grant leave to appeal against sentence and allow the appeal. The sentence on the kidnapping charge is reduced to 7 years imprisonment. We are persuaded that the facts of the case fully justify the maximum sentence.

Conclusion

121. The application for leave to appeal against conviction is dismissed. The appeal against sentence is allowed to the extent indicated.