CACC 28/2020
[2021] HKCA 1831
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 28 OF 2020
(ON APPEAL FROM HCCC NO 199 OF 2019)
________________________
BETWEEN
HKSAR
Respondent
and
Chung Chun Fung (鍾振豐) (D1)
1st Applicant
Wong Chun Man (黃俊敏) (D2)
2nd Applicant
________________________
Before: Hon Macrae VP, Zervos JA and A Pang JA in Court
Date of Hearing: 12 November 2021
Date of Judgment: 3 December 2021
____________________
J U D G M E N T
____________________
Hon Macrae VP (giving the Judgment of the Court):
1. The two applicants (whom we shall refer to by their trial designations as D1 and D2) were charged on an indictment with a joint count of murder; the allegation being that they, on 5 October 2008, together with others, murdered Poon Ka Yan (“the deceased”) in Hong Kong, contrary to Common Law and punishable under section 2 of the Offences Against the Person Ordinance, Cap 212.
2. On 9 January 2020, both D1 and D2 pleaded not guilty to murder but guilty to manslaughter upon their formal arraignment; however, their pleas were not accepted by the prosecution. Accordingly, they stood trial before Deputy Judge Keith (“the judge”) and a jury. On 10 March 2020, both applicants were found guilty of murder and sentenced to life imprisonment. They each subsequently appealed against their convictions.
3. In the light of unexpected developments at the hearing of the appeal before this Court, it is necessary to set out certain background facts concerning the representation of the two applicants. On 19 March 2020, D1 and D2 each filed a Notice of Application for leave to appeal against conviction (“Form XI Notice”). On 3 June 2020, Mr Duncan Percy, who had represented D1 throughout his trial, was assigned by the Director of Legal Aid to further conduct his appeal. Accordingly, on 6 August 2020, Mr Percy filed six substantive perfected grounds of appeal against conviction, together with accompanying authorities, which were followed, on 30 December 2020, by a full written argument in support. Thus, D1’s appeal papers were ready and in order more than 10 months before the hearing of the appeal.
4. However, on the morning of the appeal, 12 November 2021, Mr Percy drew to the Court’s attention the fact that D1 might wish to apply in person for an adjournment on the basis that his family intended to instruct a private lawyer. However, until that happened and he was formally discharged, Mr Percy made it clear that he was ready and willing to present D1’s appeal.
5. Accordingly, since the Court had, until the hearing, received no hint of any such development, nor had any other counsel, solicitor or family member, approached or appeared in court either formally or informally to make representations on behalf of the applicant, we made enquiries of the position from the applicant directly. We were informed by him that he had had a video conference from prison with a Senior Counsel on 20 October 2021, some 23 days previously, when he was advised that there were “further and stronger grounds of appeal” which might be advanced before the Court. The video conference took apparently about an hour, but the applicant was unable to remember the name of the Senior Counsel concerned, although he could remember the name of the solicitors’ firm.
6. D1 told us that the consultation with Senior Counsel was a “one off” occurrence and that neither counsel nor solicitors had since been formally retained to represent him, nor had any money been paid over for that purpose by his family. Indeed, as for the rendering of advice about “further and stronger grounds of appeal”, we were shown a letter from D1’s current solicitors assigned by the Legal Aid Department, dated 25 October 2021, five days after the video conference, advising the Legal Aid Department:
“Insofar as at present known to the aided person, his parents have engaged Messrs Fung & Fung, in this respect for seeking legal advice to the merit of the appeal. The aided person further told our representatives that Senior Counsel was engaged to scrutinize the appeal bundles for advising him the merit of the appeal”.
The applicant then made a request for the hearing to be vacated, thus prompting the Director of Legal Aid to write a letter to the assigned solicitors, dated 26 October 2021, saying that they would not approve the request to apply to vacate the hearing date, and making it clear that:
“As far as we are concerned, we shall proceed with the case in accordance with the direction given by the court and the appeal shall be heard on 12 November 2021 as directed”.
The letter added:
“If Mr Chung (D1) has decided to turn private, the proper course to take is for his new solicitor(s’) firm to formally file the Notice to Act and to make such application as they deem fit on Mr Chung’s instructions given to them on private basis”.
With respect, this advice was entirely correct procedurally, and the letter was duly copied to Mr Percy.
7. On 9 November 2021, an assistant solicitor from the assigned solicitors visited the applicant in prison and was informed by him that his “family members had raised funds for him to engage a Senior Counsel and a fresh legal team to conduct his appeal”. However, “they needed time to read through the whole appeal bundles and the case management”. The applicant further requested Mr Percy to apply for an adjournment of the appeal on 12 November 2021, and was duly advised that it was for the Court to determine whether or not to grant an adjournment.
8. On 10 November 2021, the Director of Legal Aid reiterated that the applicant’s request was not approved and that the case would proceed as listed in accordance with the court’s direction. The same advice as to the proper procedure to adopt in the event of private instructions being given was again repeated.
9. Mr Percy, nevertheless, brought this correspondence to our attention at the outset of the appeal hearing, none of which was hitherto known to this Court, and made it clear that he was ready to proceed with D1’s appeal, as were both counsel for the respondent, Ms Jasmin Ching, with her Ms Cherry Chong, and Mr John McNamara, who had been retained by the Director of Legal Aid to assist D2 at the appeal if necessary or called upon by the Court. The respondent objected to any adjournment, while Mr McNamara said he was “in the Court’s hands”.
10. Having made all necessary enquiries with D1 as to the matter, we retired to consider his application to vacate the appeal hearing so that alternative counsel, whoever he was, could be privately instructed, notwithstanding that neither private counsel nor solicitors had in fact so far been instructed in respect of the appeal, no costs on account had been paid, there was nothing before the Court from any such counsel or firm of solicitors to the effect that they had been or were to be instructed and there were no grounds of appeal before us, other than the ones filed by Mr Percy in December of last year.
11. Having taken into account all the relevant circumstances, we refused the application. In addition to the uncertainties just referred to, we pointed out that D1 already had the benefit of competent counsel, who was skilled in both trial and appellate levels of the courts’ jurisdiction, who also had the undoubted advantage of representing D1 at the trial and who would, therefore, be fully conversant with his case. We determined that it was not in the interests of justice to delay further the hearing of this matter, which arose out of an incident on 5 October 2008, more than 13 years ago. There are other parties to consider in an appeal that is adjourned and thereby delayed, including any other applicants and the respondent. There is also a public interest in seeing that defendants are brought to justice and a final determination as to their guilt or innocence made with appropriate expedition and without unnecessary delay. It is also often overlooked in such applications to adjourn appeals that if an applicant is ultimately to be successful in his appeal and a retrial ordered, the retrial would sometimes have to take place many years after the alleged crime; indeed, in this case, if either applicant was to be successful, any subsequent retrial would probably be held close to 15 years after the events giving rise to it. Such a delay inevitably affects witnesses for both sides and does not serve the overall interests of justice well.
12. Accordingly, we refused D1’s application for an adjournment. The applicant immediately responded by indicating his intention to discharge Mr Percy, notwithstanding that we had made it clear to him that he would have to represent himself if he dispensed with his assigned counsel, who was ready, willing and perfectly able to continue to present the appeal on his behalf. Nevertheless, the applicant insisted on going ahead and discharging Mr Percy. On being reminded by the Court that he would have to proceed with the appeal himself, D1 then complained that he was not sufficiently familiar with the papers to present his own appeal.
13. The Court of Appeal is not to be toyed with. Cases which have been set down for appeal, with all parties prepared and able to proceed, will not be adjourned in the vague hope that an applicant might obtain the services of other counsel. Cases can take many months to be set down for appeal: indeed, following the filing of perfected grounds of appeal and written submissions of the parties, this particular case had been listed on 29 March 2021, more than seven months before the hearing of the appeal. It should be remembered that if a case has been listed for a whole day’s hearing but is unnecessarily adjourned for some reason, then another applicant will inevitably have been deprived of the chance of having his appeal, which may be successful, heard earlier. We wish to make clear to all practitioners, as well as lay defendants that, in future, it will only be in exceptional circumstances, for which cogent reasons for any adjournment must be given, that an appeal which has been listed and is ready to be heard on a particular day will be vacated or adjourned.
14. Having explained to D1 that he would, having discharged Mr Percy, be expected to go ahead and present his own appeal, he said that he would nevertheless adopt the perfected grounds of appeal and written submission of Mr Percy, as well as his own homemade grounds of appeal, filed together with his Form XI Notice on 19 March 2020. We shall address all of those grounds, as well as those of D2, in due course.
Background and undisputed facts
15. At shortly before 4 am on 2 October 2008, the deceased was assaulted by a group of nine young men, who were friends of each other, inside a McDonald’s restaurant (“the restaurant”) on the ground floor of Tin Shui Shopping Centre in Tin Shui Estate, New Territories. The group included the two applicants, Lam Siu-fung (“Siu-fung”), Ng Pak-lun (“Pak-lun”), Tse Wai-lun (“PW7”) and Lam Ka-fai (“PW8”), amongst others. All of the assailants then left the scene, the entire incident having lasted some 20 seconds. The matter was immediately reported to the police and an ambulance arrived shortly thereafter. The deceased was rushed to hospital for emergency treatment, but was pronounced dead on 5 October 2008.
16. At the scene of the incident, eight plastic bread trays[1] [2] [3]
The prosecution case
17. The prosecution called several witnesses: two friends of the deceased, who had met with him before the incident, Ho Pak-fai, nicknamed “Siu-keung” (“PW1”) and Ho Wan-pong (“PW2”); three customers of the restaurant, who were present at the scene when the incident occurred, Chung Tsui-yau (“PW3”), Leung Kam-fu (“PW4”) and Li Sze-kuen (“PW5”); the duty manager of the restaurant at the time, Ip Man-ho (“PW6”); and the pathologist who conducted the post-mortem, Dr Chiao Wing-fu (“PW10”). Among the prosecution witnesses were also Lam Ka-fai (“PW7”) and Tse Wai-lun (“PW8”), who participated in the assault on the deceased but subsequently pleaded guilty to his manslaughter, which pleas were accepted by the prosecution. The statement of an ambulance attendant, who arrived at the restaurant to treat the deceased, Wong Chi-kuen (“PW9”), was read into evidence.
18. It was the prosecution case that, prior to the assault upon the deceased in the restaurant, there had been a confrontation between two groups of young men, in the evening of 1 October 2008, at an amphitheatre behind the restaurant. In one group were, inter alia , PW1, PW2 and the deceased. In the other group were, inter alia , Pak-lun, PW7 and D1. The confrontation stemmed from a dispute between Pak-lun and PW1, who had continued to keep in contact with his former girlfriend, who had since begun a relationship with Pak-lun. The confrontation resulted in some pushing and shoving between the rival groups. After the incident, Pak-lun left the scene, but D1 and PW7 went drinking at the Rainbow Bar in Yuen Long, where they met up with D2, PW8, Siu-fung and others. The drinking session lasted from approximately 10 pm on 1 October to about 3 am on 2 October 2008. All were described by PW7 as “tipsy” by the time they left the Rainbow Bar[4] .
19. In the course, but towards the end, of this gathering at the Rainbow Bar, Siu-fung appeared to get angry after receiving a telephone call. He subsequently asked everyone to board two vehicles, which first proceeded to Tin Shui Estate in Yuen Long to pick up Pak-lun, and then on to the restaurant. The two vehicles carried nine young men, including D1, D2, PW7 and PW8. After the two vehicles had parked, Siu-fung was heard to say “Not to let him go”, although no name was given. The assailants entered through the front of the restaurant, with PW7 and one Ah Bo entering last. After someone had shouted “Beat the fuck of him to death”, which was heard by a customer, PW5[5]
20. Within a few days of the incident, D1 and D2 both decamped for the Mainland via unofficial channels. Subsequently, in 2018, they were located by Mainland authorities and handed over to the police in Hong Kong; hence, the long delay between the incident and the trial.
21. D1 was formally arrested on 12 February 2018[6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17]
22. D2 was handed over to the police in Hong Kong and was formally arrested on 20 March 2018. Having been cautioned, he responded, “Ah Sir, I remember that (I) had had alcohol at the time. (I) gave him only two kicks. I had never thought of beating him to death”[18] [19] [20] [21] [22] [23] [24] [25] [26]
23. A post-mortem of the deceased was conducted on 9 October 2008. PW10, the pathologist, considered that the fatal injury was one to the left-hand side of the deceased’s face, resulting in a comminuted fracture causing brain damage; none of the other injuries could by themselves have caused the death. He was also of the view that the nature of the fatal injury suggested that it had been caused by something with an elongated surface, such as the rubbish compression rod or the umbrella stand.
24. In his evidence, PW7 said that counting from October 2008, he had known D1 for 4 years; and D2 for about 3 or 4 years. The other assailants were also his friends. By the time the other assailants left the Rainbow Bar, he thought all of them were tipsy, while D2 was “feeling slightly drunk”, having mixed beer with liquor and consumed about 12 cans of beer[27] . Siu-fung had not explained the reason for going to the restaurant at the time of leaving the Rainbow Bar. When he returned from the rear entrance of the restaurant and entered through the front, PW7 saw through the windows of the restaurant that the assailants including Siu-fung, D1 and D2 were beating the deceased, whom he did not know at that time. He then rushed up to the deceased, who was lying on the floor, and kicked him twice. When he noticed blood coming from the deceased’s forehead, he shouted to his friends to stop. He then left the scene, but noticed the other assailants continuing to beat the deceased. During his attack on the deceased, he saw D1 use a plastic tray to hit the deceased, while Pak-lun used an umbrella stand. Upon viewing the CCTV footage and the still images obtained from the footage, he identified D2 as the person described as “B”, who had used an umbrella stand twice to hit the deceased. He said that the occasion when D2 had assaulted the deceased with the umbrella stand was after he (PW7) had left the restaurant.
25. In his evidence, PW8 said that, by October 2002, he was 19 years of age and had known D1 for three or four years. He had known D2 for two years through Siu-fung. He would meet D2 three or four times a week, when D2 joined the drinks gatherings of PW8 and Siu-fung. On the night of 1 October 2008, PW8 had been at the Rainbow Bar but had not been at the earlier confrontation in the amphitheatre. In Tin Shui Estate, PW8 overheard Siu-fung say to Pak-lun that somebody had been “very cocky”. However, there had been no discussion about grudges or anyone being angry before Siu-fung received the telephone call.
26. When he arrived at the restaurant, PW8 followed Siu-fung inside. He then noticed someone rush to the front from behind and attempt to snatch the rubbish compression rod from the deceased, initially in vain. The deceased fell to the ground, whereupon the other assailants rushed up and began to assault him. From the CCTV footage and the still shots made from that footage, he was able to identify D1 as the person who used a plastic tray; and D2 as the person who used the umbrella stand twice to hit the deceased[28]
27. At the end of her closing address to the jury, Ms Ching, who also acted for the prosecution in the court below, made the following submission to the jury about the fatal injury to the deceased[29]
“Before I end I have a final comment to make is that one last thing I wish to add … We heard that this was the fatal blow, it is likely to be caused by the umbrella stand or perhaps the rubbish press. You could see from footage that at least two males had used the stand, including the 2nd defendant. But what is the underlying cause to this current terrible group attack? Members of the jury, it is called brotherhood. It is the blind belief in brotherhood. These nine attackers blindly believe in this myth of brotherhood. Brother Siu-fung got problems and Siu-fung’s problem perhaps stem from Pak-lun’s grudges with Siu-keung. And Siu-fung need help, he needed support and perhaps he also needed encouragement from a joint force. So he solicited the help of a few good friends from the Rainbow Bar. Eventually, there were at least eight of them who blindly acted on the shout of Brother Siu-fung. They went to the McDonald’s without asking much. They joined in the attack of the other brothers. It explains everything. There was no hesitation to join the quarrel. There was no hesitation to take a part. There was no hesitation to continue with the attack. They provided assistance by actions with a view to facilitating or bringing about commission of the offence. There was no withdrawal from the party even though they were aware of the risk, the risk that some of their fellow brothers was -- were assaulting the deceased in a furious and fatal way. It was their acting on such brotherhood that they kill Mr Poon tragically and this was the basis of the prosecution’s theory that it was the act of this joint enterprise of at least nine males with the intent to cause really serious bodily harm to Mr Poon that led to the death of Mr Poon, and therefore, the prosecution says that both the 1st and 2nd defendant who were a party to this joint enterprise should be guilty of murder.”
The defence case
28. Both D1 and D2 elected not to testify in court, nor did they call any witnesses. However, in his closing address, Mr Percy on behalf of D1 submitted that there was no evidence that there was any revenge plan after the amphitheatre incident, nor was D1 “out to get anyone” when he entered the restaurant[30] [31]
29. D2’s defence case was that the identification evidence of PW7 and PW8 was tainted by their desire to obtain a reduction in sentence, and compromised by the length of time between the incident and their first viewing of the CCTV footage[32] [33] [34]
D1’s grounds of appeal against conviction
30. In his perfected grounds of appeal and submissions, Mr Percy had advanced six substantive grounds of appeal and one general ground that the conviction was unsafe and unsatisfactory. By Ground 1, it was alleged that the judge failed properly to direct the jury in accordance with the full terms of Direction 2.2 of the Specimen Directions in Jury Trials, promulgated by the Hong Kong Judicial Institute, as to the burden and standard of proof. Ground 2 averred that the judge failed to remind the jury, at any time during the summing-up, not only that it was not for a defendant to prove his defence, but that if the defence put forward was or may be correct, then the defendant was entitled to be acquitted of murder. By Ground 3, complaint was made that the judge failed to give the eponymously-named Liberato direction, derived from the Australian case of Liberato & Ors v The Queen [35] , and applied in Hong Kong in Sze Kwan Lung & Ors v HKSAR [36] .
31. Ground 4 alleged that the judge had failed to follow the Specimen Directions on inferences and, in particular, to direct the jury as to how to resolve the situation where there were two equally compelling and conflicting inferences to be drawn. This was said to be particularly important when the jury had to decide what was in D1’s mind and contemplation at the time he used a plastic tray to hit the deceased, when others around him were using weapons capable of inflicting more serious harm. By Ground 5, it was complained that the judge failed to point out that if one of the co-adventurers went beyond what had been expressly or tacitly agreed as part of the common enterprise, the others were not liable for the consequences of that unauthorised act; and that it was for the jury to decide whether what was done was part of the joint enterprise, or whether it went beyond the acts authorised by the joint enterprise. In Ground 6, it was complained that the summing-up did not make clear to the jury that they could only return a verdict of murder against D1, if he did in fact appreciate the change in the scope of the joint enterprise after weapons were introduced. Accordingly, the judge did not properly engage the issue of remoteness.
Respondent’s submissions
Grounds 1, 2 and 3
32. Ms Ching, on behalf of the respondent, submitted there was nothing in the judge’s summing‑up which ran counter to the Liberato principle. On the issues of the burden and standard of proof, the judge had already given directions in accordance with the Specimen Directions. Further, when explaining the different steps on the ‘Route to Verdict’, which he provided to the jury, the judge repeatedly reminded the jury that, in order to convict either D1 or D2 of the murder of the deceased, they had to be sure of each of the answers to the six steps before advancing to the next step. Read in the context of the directions on the burden and standard of proof, there was no room for misunderstanding.
Ground 4
33. Ms Ching submitted that a direction on inferences should only be given in exceptional circumstances, such as those envisaged in Tang Kwok Wah v HKSAR [37]
Grounds 5 and 6
34. It was the respondent’s position that steps (iv) and (v) of the judge’s ‘Route to Verdict’ had directed the jury in accordance with the two key considerations set out in R v Powell [38] HKSAR v Chan Kam Shing [39]
D2’s grounds of appeal against conviction
35. D2’s original grounds of appeal against conviction, and his submissions on those grounds, were contained in two handwritten documents: one, a set of ‘perfected grounds of appeal against conviction’, dated 31 December 2020, which is in fact a combination of grounds of appeal and written argument and runs to 20 handwritten pages; the other, a ‘supplemental written argument’, dated 12 September 2021, which deals with one particular ground and runs to 3 handwritten pages. 52 authorities in support of the arguments were cited. A further document entitled ‘applicant’s reply submissions’, dated 29 October 2021, has also been received by the Court, which runs to no less than 26 handwritten pages, and purports to abandon Ground 9 and part of Ground 3B. All of these documents are in a hand that is familiar to the Court from a fellow prisoner, and employs the technique of multiple and repetitious grounds and sub-grounds, which not only exceed the limits of the Practice Direction but have resulted in a document with, in reality, more than 25 grounds of appeal.
36. Had these grounds of appeal been produced by counsel, they would have been refused and sent back to reduce to discrete, identifiable grounds of appeal without repetition or argument. The way D2’s case has been presented has further raised the question of whether the Single Judge leave process should apply to murder cases, as it does to all other criminal appeals to the Court of Appeal. Nevertheless, all of these grounds and submissions are before the Court and have been considered.
Ground 1A
37. D2 complained that the evidence in relation to the events at the amphitheatre was inadmissible in the case against D2. What happened at the amphitheatre and in the restaurant were, prima facie , unconnected events. The prosecution’s reliance on the amphitheatre evidence to prove that D2 acted upon a plan to attack whomsoever Siu-fung wanted to attack, and to explain why some assailants would harbour an intent to cause serious harm to the deceased, therefore, amounted to a material irregularity, thus depriving D2 of a fair trial.
Ground 1B
38. It is said that the judge erred in law by directing the jury[40]
Ground 2
39. Ground 2 complained of the judge’s endorsement of prosecuting counsel’s use of the term “brotherhood”, with the suggested innuendo or connotation that the assailants were members of a triad society. This was said to be a material irregularity and, moreover, deprived D2 of a fair trial, since it was never suggested at trial that any of the assailants had triad affiliations.
Ground 3A (and Ground 3B(iii) as alternative)
40. Complaint is made that the judge should not have left it open to the jury to conclude that the words “Beat the fuck of him to death”, which had been overheard by PW5, would have been heard by D2. What is now left of the alternative to this ground (the rest of this ground having been withdrawn in D2’s reply submissions of 29 October 2021) is that the judge failed to comment that none of the other “neutral” witnesses in the restaurant had apparently heard this utterance.
Ground 4
41. This ground alleged that the judge erred in law by wrongly directing the jury that D2’s intended plea of guilty to manslaughter amounted to, and was usable by the jury as evidence of, an admission that he had been a party to a plan to attack someone, or an understanding to join in the attack. It was further complained that there was no evidence that D2 had in fact tendered such a guilty plea.
Ground 5A
42. Ground 5A averred that the judge wrongly directed that the pleas of guilty to manslaughter by PW7 and PW8 could be used as an admission by them of the existence of a plan or understanding to attack with the group; moreover, such pleas were hearsay.
Ground 5B
43. Ground 5B asserted that the judge improperly and unfairly impeached PW8’s own evidence that he had no knowledge of any prior plan to attack someone on 2 October 2008; and sought to suggest that both PW7 and PW8 must have known what was going on despite the absence of any actual evidence from them to that effect.
Ground 6
44. Ground 6 alleged that the judge misdirected the jury as to the effect of D2’s VRI, in that (i) the judge had inaccurately, and misleadingly, directed the jury that D2 was not asked what he thought was going to happen at the restaurant; when (ii) D2 had in fact been directly asked if anyone had planned to assault the deceased, to which D2 replied in the negative; and (iii), the judge did not give a Liberato direction when addressing the jury on the issue of whether D2 knew of a plan to attack the deceased.
Ground 7
45. Ground 7 asserted material prejudice by the failure of the judge to permit redaction of D1’s VRI, where he purported to identify the male “B” in the CCTV still images as D2[41]
Ground 8
46. It was argued that the judge had unfairly advanced a theory as to why PW7 may have failed to identify D2 during his first interview with the police, yet was able to identify D2 during subsequent interviews, when such a theory had not been put to PW7 and had, in any event, been contradicted by PW7 himself.
Ground 10
47. Ground 10(i) was similar to Ground 6(iii) and averred that the judge failed to give a Liberato direction when directing the jury on the issue of whether D2 was the male “B” in the CCTV footage. Ground 10(ii) criticised as “legal nonsense” the judge’s direction that there had been no evidence from D2 to undermine, contradict or explain the prosecution evidence, when D2 had given VRIs, which also constituted evidence. Ground 10(iii) complained about the judge informing the jury that D2’s admission to have trodden on the deceased was incriminating, when this section of his VRI was wholly exculpatory as a denial that he was the male “B”. Ground 10(iv) suggested that, by telling the jury to consider the whole of D2’s out-of-court statements in order to decide where the truth lay[42]
Ground 11
48. Ground 11 took issue with the judge’s directions on self-induced intoxication[43]
Ground 12
49. Ground 12 complained that in the absence of any expert evidence as to the correlation between mental and physical impairment from intoxication, the judge erred by adopting the allegedly impermissible line of reasoning in prosecuting counsel’s closing speech, which invited the jury to conclude that none of the assailants were affected by alcohol.
Ground 13
50. Ground 13 was similar to Grounds 6(iii) and 10(i), and alleged that the judge failed to give a Liberato direction when directing the jury as to whether D2 may have been intoxicated to such an extent that the mental element for murder could not be formed.
Ground 14
51. The essence of Ground 14, which is in two parts with several sub-grounds, was that the judge failed to direct the jury that the requisite mental element for murder must be possessed by D2 at the time of, and not after, the causing of the fatal injury. Since it was possible that the fatal injury was the very first blow struck by Siu-fung, the jury should have been told that, in order to convict D2 of murder, he must have had the requisite mental element at least by the time Siu-fung inflicted this fatal blow.
Ground 15
52. Ground 15 complained that the judge erred in failing to direct the jury that, in order for D2 to be convicted of murder in the scenario where D2 did not intend to cause serious injury to the deceased, it was necessary for the jury to be sure that, at the material time, D2 had foreseen that a possible consequence of a fellow assailant’s act would be either death or serious injury, not merely that a fellow assailant would have the intention to cause serious injury. In his supplemental written submission, D2 suggested that in step (iv) of the ‘Route to Verdict’, the judge should have directed “(iv) that the defendant whose case you are considering, at the time that the fatal blow was struck, either himself intended to cause Poon Ka Yan really serious injury or was aware that there was a real risk that one or more of the others might kill Poon Ka Yan with intent either to kill or to cause really serious injury and continued to take part in the attack nevertheless”, whereas the underlined part was missing from the direction.
Respondent’s submissions in response
Ground 1A
53. Ms Ching contended that what happened at the amphitheatre was relevant and admissible evidence, setting the background to the subsequent attack in the restaurant, and explaining what happened afterwards and why the deceased was attacked.
Ground 1B
54. It was submitted that the judge was merely stating in general terms the possible reason for the attack as deduced from the evidence. Although such a deduction was made on the basis of the evidence of PW7 and PW8, as well as the content of D1 and D2’s VRIs, the jury were expressly directed that what one defendant said in his VRI could not be used against the other.
Ground 2
55. Ms Ching accepted that she had argued that the nine young men who attacked the deceased were bound by a blind adherence to brotherhood, which made them indulge in the ensuing violence. The evidence revealed that they lived in the same area and “hung around” together in the Tin Shui Wai area, Tim Shum village and the Rainbow Bar, but there had never been any attempt by the prosecution, or anyone else, to suggest that there was any triad affiliation between them.
Ground 3A
56. It was submitted that whether D2 (and Dl as well) heard the words in question was a matter of fact for the jury. There was direct evidence from PW5 that he heard those words prior to the assault. The judge correctly directed the jury as to how they should approach this piece of evidence and how it might assist them on the “alternative scenario” of whether the defendants were aware of a real risk that one or more of the others intended to cause the deceased really serious injury.
Ground 3B(iii)
57. In respect of D2’s complaint that the judge failed to comment that apart from PW5, no one else heard the relevant utterance, Ms Ching submitted the judge was not obliged to comment on every single piece of evidence. The evidence on this matter was clear and the jury could use their common sense.
Ground 4
58. Ms Ching pointed out, firstly, that counsel representing D2, on two occasions during the committal proceedings in the magistracy, had indicated that D2 would plead guilty to the lesser charge of manslaughter[44] [45] [46]
Ground 5A
59. This complaint was said to be wholly misconceived. Both PW7 and PW8 testified that they had been convicted of manslaughter on their own pleas and were waiting to be sentenced after giving evidence for the prosecution. The fact of their pleas was based on evidence and was not disputed.
Ground 5B
60. The respondent took issue with the criticism that the judge had re-invented the prosecution case. The judge was doing no more than reminding the jury of the respective positions of the parties, it being the prosecution case that there had been a plan or understanding to attack someone.
Ground 6(i)
61. Ms Ching pointed out that D2 in his VRI was asked whether anyone had said that they planned to attack the deceased, to which D2 said “No, no, no”[47] thought was going to happen or what it was all about”, which was the point the judge was making[48] .
Ground 6(ii)
62. Ms Ching submitted that the judge had no duty to remind the jury of every single piece of evidence. She noted that D2 also accepted in this ground of appeal that the alleged missing parts of the VRI had already been mentioned elsewhere in the summing-up[49]
Grounds 6(iii), 10(i) and 13
63. By reference to HKSAR v Zhou Limei [50] Liberato direction in respect of every factual issue in dispute. Moreover, and in accordance with the principles set out by the Court of Final Appeal in Law Chung Ki & Anor v HKSAR [51] Liberato principle to be sufficiently conveyed by general directions as to the burden and standard of proof, provided that nothing said in the summing-up ran counter to that principle. Ms Ching submitted that the judge did not give any direction which could be said to have undermined the Liberato principle.
Ground 7
64. Ms Ching pointed out that the jury had been expressly directed as to how they should approach the VRIs of each defendant[52] [53]
Ground 8
65. Ms Ching argued that the judge was entitled to give his views or analysis of the evidence, which were in any event matters of common sense. The judge was merely suggesting the possibility that PW7 might not have wanted to implicate his friends when first interrogated by the police, which was entirely understandable in view of the background and circumstances of a case where PW7, PW8, Dl and D2 were all close friends at the time of the offence.
Ground 10(ii)
66. Ms Ching submitted that the rather disrespectful criticism of the judge’s direction was misconceived. The judge was dealing with the situation where a defendant elected not to give evidence. In so doing, he was giving the standard direction. He had never suggested that the jury could not consider the contents of the VRIs as part of the respective defence case.
Ground 10(iii)
67. Ms Ching took issue with this complaint as simply incorrect. The replies cited by the judge were plainly incriminating.
Ground 10(iv)
68. It was pointed out that the directions complained about were in line with Specimen Direction 40.1 (issued in 2013) and Specimen Direction 113-5D (issued in 2020, Volume 2).
Grounds 11 and 12
69. Ms Ching submitted that the directions in respect of intoxication thoroughly addressed all of the relevant issues and were consistent with Specimen Direction 52: the judge specifically stated that a drunken intent was nevertheless still an intent; and asked the jury to consider, upon taking into consideration the condition of the applicants, whether they had formed the requisite intent at the material time.
70. In respect of the complaint that the judge had, like prosecuting counsel, asked the jury to assess the extent of D1 and D2’s intoxication by reference to the CCTV footage, Ms Ching referred to the case of HKSAR v Sheung Kun Hoo Daniel [54]
Grounds 14A and 14B
71. The respondent submitted that the judge had in fact repeatedly reminded the jury to pay attention to the timing of the requisite mens rea on different occasions at various parts of his summing-up. He reminded the jury that they must be satisfied that the defendant whose case they were considering either himself intended to cause the deceased really serious injury or was aware, whether before the attack or during it, that there was a real risk that one or more of the other co-defendant(s) intended to cause the deceased really serious injury, but continued to take part in the attack nevertheless.
Ground 15
72. The respondent’s answer to this ground of appeal is that the judge’s directions were in accordance with the principles re-affirmed in Chan Kam Shing . The alleged omission of stating the intention to cause death could not amount to a misdirection. In respect of the complaint in D2’s supplemental written submission that the judge’s direction was erroneous since the judge failed to address the actus reus of the offence, whilst addressing the mens rea of the offence in step (iv) of the ‘Route to Verdict’, it was submitted that the argument failed to take into account step (iii), which addressed the actus reus of the offence. Step (iv) should not be read in isolation as though step (iii) did not exist. When the jury were directed to consider whether D2 had the actual foresight that an assailant intended to kill or cause really serious injury to the deceased (the mens rea of the offence) as stipulated in step (iv) of the ‘Route to Verdict’, the judge must have been referring to the same assailant (whoever it might have been) who struck the fatal blow (the actus reus of the offence) as stipulated in step (iii).
Discussion
73. As we have said, D1 adopted all of Mr Percy’s grounds of appeal and written arguments as well as his own homemade grounds. Although he did not wish to add anything to those grounds and arguments, we should say that Mr Percy properly remained for the remainder of the appeal and was available had we required his assistance on any matter. As for D2, having adopted the grounds of appeal and arguments written on his behalf, which we had summarised in open court for him, he had nothing to add but made an application for legal representation. Again, this was the first time D2 had indicated such an application to the Court, notwithstanding that he already had the services of Mr McNamara to safeguard his interests. For that reason, we specifically asked Mr McNamara whether there were any reasonably arguable grounds of appeal in D2’s case, which he felt he should bring to our attention or develop. Mr McNamara explained that he had originally been assigned by the Director of Legal Aid to represent D2 on 28 May 2020 and had written two Opinions in respect of the appeal. There was nothing he wished to draw to our attention. We did not accede to D2’s application for an adjournment in order to obtain further legal representation.
74. Common to both sets of grounds of appeal is the complaint that a Liberato direction was not given. The central thrust of the argument is that since the judge did not use the formula in Specimen Direction 2.2 that “if the account [given by the defendant/put forward by the defence] is true, then he must be acquitted, but he must also be acquitted if that account may be true”, the jury might not have appreciated that there was no burden upon the defendant to prove anything and, moreover, that even if they rejected the defendant’s evidence on a particular issue, they could still not convict if there was a reasonable doubt about that issue.
75. The above direction in Specimen Direction 2.2 is later echoed in Specimen Direction 44A.1, namely, “I have previously told you that if the account given by the defendant/put forward by the defence is or may be true, then the defendant must be acquitted”. However, it is to be noted that Specimen Direction 44A.1 is applicable to the “defendant who has given and/or called evidence”. Neither D1 nor D2 gave or called any evidence in this case.
76. Any judge will be careful to tailor his or her legal directions so that they do not unnecessarily confuse or overburden a jury. As we have just noted, Specimen Direction 44A was not directly applicable because neither of the applicants had given or called any evidence. Moreover, it is a somewhat odd thing to say, in the terms of Specimen Direction 2.2, that if the account given by a defendant or put forward by the defence is or may be true, then he must be acquitted, when, as the judge pointed out, neither of the defendants was asking to be acquitted, having both entered pleas of guilty to manslaughter. The real choice in the present case was between a conviction for murder and a conviction for manslaughter: in those circumstances, it was not helpful to say that either defendant “must be acquitted” if his account, which he did not give in evidence, was or may be true, when it was part of his defence that he was guilty of a different crime, namely manslaughter.
77. A similar point was made by this Court in HKSAR v Tam Ho Nam [55] , albeit in the context of a murder case where the defence put forward was that the applicant was not guilty of murder but guilty of manslaughter by reason of provocation. The Court said[56] :
“It seems to us, therefore, that if the judge had given the full terms of Specimen Directions 2 and 44A in relation to the applicant’s evidence, namely “he must be acquitted if that account may be true” (Specimen Direction 2.2), and “I have previously told you that if the account by the defendant is or may be true, then the defendant must be acquitted” (Specimen Direction 44A.1), it would have confused the jury because the applicant was not asking to be acquitted altogether; and, moreover, he did not stand to be acquitted if the jury thought his evidence was or might be true.”
In Tam Ho Nam , unlike the present case, the applicant had given evidence.
78. Nevertheless, it is necessary for us to look at the summing-up as a whole to determine whether the essential message was conveyed in this particular case that the jury must be sure that the defendant was guilty of murder and, if there was any reasonable doubt about it, they must acquit him of murder and consider whether he was guilty of manslaughter; and they must still be sure of their verdict even if they rejected the defence put forward. At the outset of his remarks, the judge gave the following direction on the burden and standard of proof[57] :
“Now, there are a few other things of a general nature which I need to say to you. The first and most important is that it is for the prosecution to prove the defendant’s guilt. You have been told that by the lawyers, but the law requires me to tell it to you as well. The defendants do not have to prove anything. They certainly do not have to prove their innocence. And how does the prosecution succeed in proving their guilt? The answer is by making you feel sure of it, which is exactly the same thing as proving their guilt beyond reasonable doubt, nothing less will do. If, having considered all the evidence, you are not sure of their guilt then you must acquit them. On the other hand, if you are sure that they are guilty, then it is your duty to return verdicts of guilty.”
Later, in explaining the six steps on the ‘Route to Verdict’, the judge said[58] :
“In order to convict either of the defendants of the murder of Poon Ka-yan, you will have to be sure of six things. …
……
If you are sure of all these things, you must convict the defendant whose case you are considering is(sic ) murder. If you are not sure of any of these things, you must acquit him of murder and go on to consider whether that defendant is guilty of the less serious offence of murder(sic ).”
We should say that the slips of the tongue in the above passage would have been obvious to the jury, since they had the correct words in the written ‘Route to Verdict’ before them[59] . It would have been clear to them, as it is to us, that the last word in the direction should have been “manslaughter”. The judge then went on to deal with the ways in which a person may be convicted of manslaughter.
79. At the end of his summing-up, the judge, after referring to an argument by Mr Percy on behalf of D1, said[60] :
“You will consider that carefully, but if the prosecution has made you sure that the defendant whose case you are considering, whether it is (D1) or (D2), intended to cause Poon Ka-yan at least really serious injury when they hit him in the way you are sure they did, then you do not have to go on to consider the alternative scenario. You only go on to have to consider the alternative scenario if you are not sure that the defendant whose case you are considering intended by what he did to cause Poon Ka-yan really serious injury.”
80. No complaint can sensibly be made about these directions, all of which would have clearly set out for the jury their duty in respect of the burden and standard of proof. Whilst it is true that the judge did not use the formula that the jury were to acquit if the defendant’s account was “or may be true”, that was the inevitable and unmistakeable effect of his directions. Nor was anything said in the summing-up which, as the Court in Law Chung Ki & Anor warned, ran counter to that message. And nor can anything be pointed to anywhere in the summing-up, which might conceivably have had that effect.
81. It is important to remember what the High Court of Australia said, and why, in Liberato . The problem there had arisen because of the way the trial judge had directed the jury on the burden and standard of proof, in circumstances where there was a clear conflict of evidence between prosecution and defence witnesses. Brennan J held[61] :
“The risk of the jury failing to understand the true onus and standard of proof was enhanced by the “occasional misdirections” referred to in the fourth point of the criticisms made by White J. During his summing up the learned judge, referring to a defence submission that M.K. had “got excited” told the jury:
‘It reflects the fact that in many ways this case boils down to who do you believe, and the result after asking that question is fairly predictable. However, again, that is for you to say.’
A little later, his Honour said:
‘You may well think that the attitudes are so far apart that you have to make a choice. Again, this is a matter for you. As Mr Peek puts it to you, of course if you are unable to make a choice, then clearly you have not been satisfied beyond reasonable doubt and the accused must be acquitted.’
A failure to distinguish between satisfaction beyond reasonable doubt and choosing between two contradictory stories again appears in a later passage of the summing up:
‘Mr Borick did say to you that a verdict of not guilty did not mean that you rejected entirely what [M.K.] says as much as it may well mean that you are simply not satisfied beyond reasonable doubt as to the allegation. That may be so ladies and gentlemen. The case may well be one as I have put to you before, where the real question is who do you believe on the whole of the evidence, [M.K.] or the accused?’
After the jury retired, counsel sought a redirection. The jury was brought back, and the relevant redirection was given in these terms:
‘…you are the judges of the facts and it is for you to make up your minds about what you think about the evidence. In that context in the course of my submissions I recall saying to you this might well be a case about whom you might believe. That is a gross simplification in many ways and I’m sure you will bear in mind what I have put to you about considering the evidence carefully and weighing it very carefully’.”
82. It was in the context of the trial judge’s directions that Brennan J made the statement, which has come to be known as the Liberato principle[62] :
“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they preferred the evidence of the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is ‘a gross simplification’.”
83. Thus, Liberato was a case in which the jury may well have been led to believe by the trial judge’s directions that their resolution of conflicting evidence depended upon a choice between whether they believed the prosecution evidence or the defence evidence, without sufficient recognition and emphasis being given to the duty of the prosecution to make them sure of the prosecution case; and that they could not be sure if they entertained a reasonable doubt about it, even if they did not accept the defence case.
84. The case before us bears no relation at all to what had happened at the trial of Liberato . The judge never, expressly or by implication, invited the jury to choose between conflicting prosecution and defence evidence: indeed, there were no witnesses for the defence, while the prosecution evidence depended primarily upon the jury’s assessment of the CCTV and photographic evidence, together with PW7 and PW8’s explanation of that evidence. As for the out-of-court statements of D1 and D2, they were each clearly inculpatory as to their respective participation in the assault on the deceased inside the restaurant. Although there was an issue as to whether D2 had also used the umbrella stand to beat the deceased, it was his case, as he said to the arresting officer, that he “had never thought of beating him to death”[63] . In the absence of his evidence, his state of mind at the time was primarily a matter to be determined from the CCTV and photographic evidence, assuming the jury accepted PW7 and PW8’s evidence that he was male “B” and the circumstances generally.
85. We would add that the judge told the jury that even if they found that the applicants had lied in their out-of-court statements by trying to minimise the extent of their own assaults on the deceased, that did not make them guilty[64] :
“You may decide that the defendants were not telling you the truth when they were interviewed by the police. For example, that (D1) hit Poon Ka-yan more than the twice or three times he claims, or that (D2) did much more than simply tread on Poon Ka-yan. But just because a defendant has told lies to the police when he was interviewed, does not mean that he is necessarily guilty of the offence of which he is charged. If you are sure that they did tell lies to the police, ask yourselves whether the defendants are guilty despite the lies they told, rather than because of the lies they told.”
86. The significance of this particular direction is that if PW7 and PW8’s evidence in conjunction with the CCTV evidence was true as to the defendants’ roles (as at least Mr Percy appeared to accept in addressing the jury[65] ), then D1 and D2 had clearly not been truthful about the extent of their involvement in the violence which took place. The judge made clear that the jury still had to be sure of guilt, even if they disbelieved their respective out-of-court statements.
87. We do not think there would have been any misconception by the jury as to the burden and standard of proof in this case. We reject the argument that the particular concerns voiced in Liberato were either applicable in this case or, if they were, that they were not met by the judge’s directions. Accordingly, we find no substance in those grounds of appeal by both D1 and D2 citing the absence of a Liberato direction, namely D1’s Grounds 1, 2 and 3; and D2’s Grounds 6(iii), 10(i) and 13.
88. In relation to D1’s Ground 4, concerning the alleged inadequacy of the judge’s direction on inferences, the judge had said this[66] :
“Although you must not speculate about evidence which has not been given, you may draw inferences from evidence which has been given. Inferences, though, are deductions. They are not guesswork. So you can only draw inferences from the evidence you have heard if those inferences are based on evidence which is reliable and if the particular inferences which you are being asked to draw are the only inferences you can draw from the evidence. And Mr Percy illustrated that by his example with the chocolate cake and the baby and the dog.
But let me give you another example. If I go to bed at night and the ground outside is dry and I wake up in the morning and the ground is wet, true I have not actually seen it rain in the middle of the night, but the inference that it rained while I was asleep is irresistible. Apply that to this case. As you will hear, if either of the defendants is to be convicted of murder, one of the routes to conviction is if the prosecution prove not just that the defendant whose case you are considering took part in the attack on Poon Ka-yan, but that he thought that the attack might result in Poon Ka-yan being at least seriously injured.
There has been no direct evidence that either of them thought that. For example, neither of them confessed to having thought that that might happen. If all the evidence in the case leads you to be sure that the defendant, whose case you are considering, must have thought that that might happen, well, that would not be you speculating about evidence which has not been given. It would be you drawing an inference from evidence which has been given.”
89. The complaint, as we understand it, is that the judge did not tell the jury that where there were two equally compelling inferences, one for him, the other against him, the jury could not draw the adverse inference. However, if the jury were being told that they could only draw an inference from evidence they found to be reliable and that they should only draw such inference if it was the only inference they could draw from the evidence, then they could not have drawn an equally compelling inference against the defendant’s interests because it would not have been the only inference open to them to draw. The argument is semantic and of no substance.
90. D1’s Grounds 5 and 6 can be dealt with at the same time as D2’s Ground 15. The judge’s directions, about which complaint is made, were as follows[67] :
“The fourth thing you have to be sure about before you can convict either of the defendants of murder is that the defendant whose case you are considering either himself intended to cause Poon Ka-yan really serious injury or was aware, whether before the attack or during it, that there was a real risk that one or more of the others intended to cause Poon Ka-yan really serious injury and continued to take part in the attack nevertheless. Now, it is important that you distinguish between these two scenarios. The first focuses on what the defendants themselves intended. The second focuses on something different and that is what they thought any of the others intended.”
Having dealt with the first scenario, the judge turned to the second, which he made clear the jury only needed to consider if they were not sure about the first scenario[68] :
“So let us turn to that alternative scenario now. Were they aware before the attack or during it that there was a real risk that one or more of the others intended to cause Poon Ka-yan serious injury, and despite being aware of that, continued to take part in the attack, nevertheless? The prosecution point to two things. The first is what one of the people in the rear of the restaurant heard one of the men to say, ‘Beat the fuck of him to death.’ If that was heard by either (D1) or (D2), it is of significant help to you, say the prosecution, on whether they would have been aware that there was a real risk that one or more of the others intended to cause Poon Ka-yan really serious injury and continued to take part in the attack nevertheless.
Mr Percy asks you to consider whether that would have been heard by the others? The witness told you that he heard those words said before the fight started. That evidence that he heard those words before the fight started is important for two reasons. It helps on whether the words were likely to be heard by (D1) and (D2), and it helps also on whether they continue to take part in the attack on Poon Ka-yan knowing that there was a real risk that one or more of the others intended to cause Poon Ka-yan really serious injury.
The other matter which the prosecution point to is the sequence of events. They say the footage shows that Siu-fung had already begun to attack Poon Ka-yan with the rubbish compressor rod by the time that (D1) began to hit him with the bread tray and, of course by the time the man marked with the “B” hit Poon Ka-yan with the umbrella stand at the end of it all. For his part, Mr Percy asked you to consider this scenario. It may well be that Siu-fung and Pak-lun were the instigators of all this. Pak-lun, because it was about the contact with his girlfriend which was behind it all. And Siu-fung, because it was he who got everyone to leave the Rainbow and then head for the restaurant after collecting Pak-lun at Tin Sum Village.
It may be that they did intend to cause Poon Ka-yan really serious injury, but, said Mr Percy, that did not mean that all of the others knew what they had in mind. It is possible that at least some of them, including (D1) says Mr Percy, simply thought that they were going to rough someone up and not to cause him really serious injury. After all, no weapons were taken to the restaurant. This was a chaotic and fast-moving incident and there simply was not time, said Mr Percy, for (D1) to see and take in what Siu-fung was doing and, therefore for it to occur to him that this attack was to be far more violent than he had previously thought. You must consider that scenario, of course, without forgetting that it only arises if you are not sure that (D1) was himself intending to cause Poon Ka-yan really serious injury when he was hitting him with the bread tray.
The fifth thing you have to be sure about if you are to convict either of the defendants of the murder of Poon Ka-yan arises because only some of the men who attacked Poon Ka-yan did so with weapons. Indeed, they did so with weapons or with things which were already there rather than with weapons which they took to the restaurant. That is why you have to be sure that if a particular defendant did not hit Poon Ka-yan with a weapon which could have caused him really serious injury, in other words, which was capable of causing him really serious injury, you have to be sure that that defendant was aware of the possibility that someone else might.
As I said, the prosecution only needs to prove that in the case of a defendant who did not himself use a weapon of the sort which was capable of causing Poon Ka-yan really serious injury. So you only need to consider this aspect of the case in (D1’s) case if you think it possible that the bread tray, which he does not dispute hitting Poon Ka-yan with, was not the sort of weapon which was capable of causing Poon Ka-yan really serious injury. And you only need to consider it in (D2’s) case if you think it possible that he was not the man who hit Poon Ka-yan with the umbrella stand at the end of (it all?) or if you think it possible that the umbrella stand likewise was not the sort of (weapon?) which could have caused Poon Ka-yan really serious injury.”
91. In Chan Kam Shing , the Court of Final Appeal referred to the case of Powell , applying Chan Wing Siu v R [69] , with approval[70] :
“54. In the House of Lords in R v Powell , Lord Hutton summarised the principle as follows:
… it is sufficient to found a conviction for murder for a secondary party to have realized that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm.
55. Having endorsed the rule that a defendant who did not foresee the principal’s act as a possibility falls outside the scope of the joint enterprise, his Lordship added:
However, … if the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon …
56. And, agreeing with Chan Wing Siu v R , Lord Hutton held that:
… the secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture, unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible.”
92. In our judgment, the judge’s directions gave proper effect to the judgment of the Court of Final Appeal in Chan Kam Shing . Once the jury were sure each defendant foresaw, either before or during the time of his own participation in the assault on the deceased, that another assailant might kill or cause really serious injury to the deceased, but with that foresight he proceeded nevertheless , then the question of remoteness, such as it was, was adequately dealt with.
93. We find nothing in these grounds. In passing, we might add that the question of whether either defendant heard what PW5 heard was, as the judge made clear when rehearsing Mr Percy’s argument, a matter of fact for the jury (see Grounds 3A and 3B of D2’s grounds of appeal).
94. We reject all of D2’s other grounds of appeal, for the reasons articulately and capably set out by Ms Ching, for whose submissions we are grateful. Many of his grounds are argumentative matters of fact, such as whether the male “B” was D2, which were plainly issues for the jury to resolve. The others, which one might regard as grounds of mixed fact and law, such as the admissibility of the amphitheatre evidence, the concurrence of mens rea with the actus reus and the intoxication directions are not reasonably arguable and we reject them.
D1’s homemade grounds of appeal
95. Given the fact that D1 was representing himself and we had allowed him, in those circumstances, to rely on his own homemade grounds of appeal, in addition to those drafted by Mr Percy on his behalf, there is one aspect of his homemade grounds which we feel we should address. If it had any merit, it would redound to the advantage of D2 as well. Grounds 2, 3 and 4 of D1’s homemade grounds of appeal take issue with the timetable of the trial, which not only spanned the Chinese New Year holiday in 2020 (Ground 2), but was suspended because of the unprecedented circumstances occasioned by the Covid-19 pandemic and the general adjourned period (“GAP”), during which all jury trials, among other hearings, were suspended by order of the Chief Justice (Ground 3). It is said that this hiatus was unfair to the defendants since the jury might not remember the evidence because of the delay (Ground 4).
96. It is correct that the present trial was one of three ongoing jury trials in the High Court, which were suspended because of GAP. This particular trial had commenced before the judge on 9 January 2020. At 1:09 pm on 23 January 2020, which was the Thursday before Chinese New Year, the prosecution closed its case. The jury and parties were then released until 29 January 2020, which was the following Wednesday and the first working day after the Chinese New Year holiday, on which day it was expected that the trial would resume. Pausing here, there is nothing exceptional about any court adjourning a jury trial to accommodate the Chinese New Year holiday. Indeed, there was a natural break in the proceedings in any event, since the prosecution case had formally closed.
97. However, on 28 January 2020, it was publically announced that all court hearings would be adjourned from 29 January 2020. Three jury trials in the High Court, of which this trial was one, were thereby suspended. The present trial, which was the first of the three trials to resume during GAP, reconvened with its jury on 4 March 2020. Thus, the trial had been adjourned, pursuant to the exigencies of GAP, for a period of 40 days, including the Chinese New Year holiday and weekends; or, excluding holidays, 26 working days.
98. When the trial resumed on 4 March 2020, both defence counsel specifically made it clear that they were not applying for the discharge of the jury; and the judge, having considered the English case of R v Woodward & Ors [71] , formally ruled that the jury should not be discharged and the trial should proceed, notwithstanding the lapse of time involved. The judge had, meanwhile, prudently prepared a summary of the oral evidence, which he proposed to read out to the jury before calling upon the defendants to make their elections as to whether they wished to give evidence. Discussions were conducted between the parties as to its contents, after which the summary was duly read to the jury between 10:47 and 11:11 am on Wednesday, 4 March 2020. No further comment or complaint was made by the parties in respect of the summary. Both D1 and D2 then immediately elected not to give evidence, nor to call any witnesses.
99. Following the speeches of counsel on Friday, 6 March 2020, the judge commenced his summing-up at 10:11 am on Monday, 9 March and completed it early the following day. In the course of his summing-up, the judge said[72] :
“My review of the evidence will take a little while because there has been a long interval between the evidence and the rest of the case, as has happened here because of the unparalleled closure of the courts, the Court of Appeal has said that the judge’s review of the evidence may need to be more comprehensive than usual.”
He repeated the same sentiment at the end of his summary of the evidence when explaining why he had taken the time he had to complete the evidence[73] . The judge’s comments about the Court of Appeal were no doubt derived from the decision of the English Court in Woodward & Ors , which had been brought to his attention when the court resumed on 4 March 2020, and where the Court had said[74] :
“… while there is a risk that the length of dispersal will deprive the jury of a fair opportunity to assess the evidence, that risk will be reduced by a careful and meticulous summing-up”.
The jury in the present case returned its verdicts in the afternoon of 10 March 2020.
100. The case of Woodward & Ors was also a murder case. Leading counsel for the appellants had there complained that by the time the verdicts were returned, 8 weeks had passed since the conclusion of the summing-up, and over 11 weeks since the evidence had concluded. The trial process had become wholly disjointed by delays, which had resulted in the jury separating for two periods of 20 and 22 days during their retirement, without any sufficient reminder of the evidence. The primary witness against the appellants, and the only witness to identify them at the scene and specifically involved in the assault, had concluded her evidence some 2½ months before the jury retired, and nearly 4½ months before its verdicts were returned.
101. Such periods of separation of jurors after they had been sequestered to consider their verdicts could not, of course, happen in this jurisdiction, by virtue of section 22 of the Jury Ordinance, Cap 3. Nevertheless, the Court in Woodward & Ors held that the issue of whether a particular length of time that a jury disperses during its deliberations, so as to render the trial unfair or otherwise call into question the safety of the verdict, involves a fact-sensitive analysis. There are a number of matters which may be relevant to that analysis, the first of which is the quality of the summing-up itself. Apart from the need for a “careful and meticulous summing-up”, the Court noted that the jury in that case “were assisted by the route to verdict and the written directions of law, as well as the other documentary material which provided a clear structure within which they could work through their verdicts”[75] . Although we are not saying that such a ‘Route to Verdict’ was essential, the judge had provided the same assistance in the present case.
102. A further factor to be borne in mind was the extent and quality of the material which the jury had available to them upon their retirement[76] . In the present case, quite apart from his summary of the oral evidence (following consultation with the parties) given to the jury upon their reconvening on 4 March 2020, they had the CCTV evidence and photographs, which were not the subject of objection or criticism as to their integrity, the VRIs and the Admitted Facts.
103. The Court in Woodward & Ors also considered that the verdicts themselves will be relevant in indicating whether or not the jury were able to assess the evidence in relation to each defendant. The Court found that the different verdicts on different charges in respect of different defendants suggested that the jury were focussed on their task despite the interruptions[77] . In the case before us, the verdict against D1 on a joint count on the indictment was by a majority, while that against D2 was unanimous, suggesting a conscientious evaluation of the evidence in relation to each defendant.
104. Ultimately, the Court concluded that, while the breaks were unsatisfactory, they did not result in a trial process that was unfair to the appellants. Nor were the verdicts unsafe. Accordingly, the appeals were dismissed.
105. GAP was unprecedented in Hong Kong’s legal history. It did not arise from any fault of the court, the parties or the jurors themselves. It was a time in which many of the normal functions of life in this city were reduced or interrupted, resulting in many organisations suspending business or closing down, and much of the workforce working from home. Although this is not a very telling or necessarily universal argument, it was not a time in which ordinary people, including jurors, would have been particularly distracted by other outside activities, such as, for example, travel. The circumstances of GAP were wholly different from those arising in Woodward & Ors . We have absolutely no doubt whatsoever that the jury would have been well able to reach their verdicts following the very careful summing-up and thorough recapitulation of the evidence they received from the judge. We do not find the delay between the close of the prosecution case and the summing-up, both D1 and D2 having decided not to give evidence, was such as to render the trial unfair or the verdict unsafe and unsatisfactory.
106. For the sake of completeness, we do not see any merit whatsoever in D1’s remaining homemade grounds of appeal. There was nothing untoward in the judge allowing the jury to have the exhibits during their deliberations (Ground 1); moreover, neither counsel made any complaint about this matter at all. The general assertion that the judge’s directions were deficient (Ground 5) was not particularised, but inasmuch as the complaint engages the grounds drafted by Mr Percy, we have already dealt with it. Finally, the suggestion that the foreman appeared at times not to concentrate (Ground 6) has no substance at all.
107. For the above reasons, the applications for leave to appeal against conviction by D1 and D2 are refused and their appeals are dismissed.
(Andrew Macrae)
(Kevin Zervos)
(Anthea Pang)
Ms Jasmine Ching SPP and Ms Cherry Chong SPP (Ag), of the Department of Justice, for the Respondent
The 1st Applicant appeared in person
Mr John McNamara, instructed by Hon & Co, assigned by the Director of Legal Aid, for the 2nd Applicant (to render assistance only)
The 2nd Applicant appeared in person
[1] Exhibit P13(1)-(8).
[2] Exhibit P14(1)-(2).
[3] Exhibit P15.
[4] AB, p 470A-B
[5] AB, p 356J-L.
[6] AB, p 103, counters 38-39.
[7] AB, p 104, counters 40-41.
[8] AB, p 105, counter 53.
[9] AB, p 118, counters 228-231.
[10] AB, pp 105-106, counters 55-73.
[11] AB, pp 106-107, counters 75-81.
[12] AB, p 110, counter 129.
[13] AB, p 113, counter 163.
[14] AB, p 116, counters 208-209.
[15] AB, p 123, counter 123.
[16] AB, p 123, counter 301.
[17] AB, p 123, counters 305-311.
[18] AB, p 209, counter 66.
[19] AB, pp 219-221, counters 180-201.
[20] AB, p 217, counter 159.
[21] AB, p 224, counters 238-239.
[22] AB, pp 226-227, counters 259-281.
[23] AB, pp 234-235, counters 357-361.
[24] AB, pp 264-266, counters 700-733.
[25] AB, p 260, counters 658-659.
[26] AB, p 255, counters 602-605.
[27] AB, pp 480S-481B.
[28] AB, p 539R-T.
[29] AB, pp 376I-377B.
[30] AB, p 388C-F.
[31] AB, p 390L-P.
[32] AB, pp 394J-396U.
[33] AB, p 494R-T.
[34] AB, p 397H-L.
[35] Liberato v The Queen [1985] 159 CLR 507.
[36] Sze Kwan Lung & Ors v HKSAR (2004) 7 HKCFAR 475.
[37] Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209.
[38] R v Powell [1999] 1 AC 1.
[39] HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640.
[40] AB, p 46O-P.
[41] AB, p 130, counters 409-411.
[42] AB, p 41C-D.
[43] AB, pp 66F-67D.
[44] AB, pp 622-625.
[45] AB, p 628F-G.
[46] AB, p 401S-U.
[47] AB, p 255, counters 602-605.
[48] AB, pp 45T-46A.
[49] AB, p 63B-C.
[50] HKSAR v Zhou Limei [2020] 1 HKLRD 234.
[51] Law Chung Ki & Anor v HKSAR (2005) 8 HKCFAR 701.
[52] AB, pp 41M-42A.
[53] AB, p 130, counters 410- 411.
[54] HKSAR v Sheung Kun Hoo Daniel [2011] HKC 199.
[55] HKSAR v Tam Ho Nam (Unrep., CACC 219/2019, 16 September 2021).
[56] Ibid. , at [68].
[57] AB, p 21I-P.
[58] AB, pp 32A-33F.
[59] AB, p 640.
[60] AB, p 71G-L.
[61] Ibid. , at 514-515.
[62] Ibid. , at 515.
[63] AB, p 199.
[64] AB, p 41G-M.
[65] AB, p 71A-F; p 73G-H.
[66] AB, pp 24F-25B.
[67] AB, p 70H-N.
[68] AB, pp 71L-73L.
[69] Chan Wing Siu v R [1985] AC 168.
[70] Chan Kam Shing , at [54]-[56].
[71] R v Woodward & Ors [2019] 2 Cr App R 28.
[72] AB, p 38B-E.
[73] AB, p 77G-J.
[74] Woodward & Ors , at [79].
[75] Ibid. , at [56].
[76] Ibid. , at [80].
[77] Ibid. , at [84].