HKSAR v. WONG CHUN MAN

CACC 28/2020

[2022] HKCA 978

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)

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D E C I S I O N

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Hon Macrae VP (giving the Decision of the Court):

1.  The applicant, who was the 2^nd applicant at the appeal before the Court of Appeal and the 2^nd defendant (“D2”) at trial, applies for a Certificate under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 on the basis that three points of law of great and general importance are involved in the Court’s decision of 3 December 2021. The three points of law are as follows:

“(1) In order for a defendant to be found guilty of murder as a secondary party upon the basis of extended joint criminal enterprise principles, is it sufficient to prove that the defendant had proceeded with the foresight that another participant might intentionally cause really serious injury to the deceased or, conversely, is it necessary to prove that the defendant had proceeded with the foresight that another participant might kill the deceased (i.e. might cause death) with intent either to kill or to cause really serious injury? (‘Question 1’)

(2) In circumstances where:

(i) The defendant had, upon arraignment in the High Court and in the absence of the jury, pleaded guilty to a lesser offence than the offence wherewith he/she is charged (the “Defendant's Guilty Plea”),

(ii) The prosecution does not accept the Defendant’s Guilty Plea, and

(iii) During subsequent trial proceedings before the jury:

(a) No evidence of the Defendant’s Guilty Plea is adduced before the jury, but

(b) The jury is told about the Defendant’s Guilty Plea by counsel during oral submissions from the bar table,

Is the jury entitled to rely upon the Defendant’s Guilty plea as an admission against interest by the defendant of a material fact in issue? (‘Question 2’)

(3) Is a prior plea of guilty by an accomplice who testifies as a prosecution witness capable of being used by the jury as evidence in support of the prosecution case against the defendant? (‘Question 3’)”

We shall deal with the points in reverse order.

Question 3

2.  There was oral evidence before the jury from both PW7 and PW8 themselves that they had each pleaded guilty to manslaughter in the present case and that they were awaiting sentence. This was evidence in the case and it was never a matter in dispute. The premise of this elaborate complaint is that the judge erroneously permitted the jury to use PW7 and PW8’s pleas of guilty against D2. Thus, so the argument goes, the judge told the jury that they could rely on the guilty pleas as evidence of the existence of a plan to attack with the group, which necessarily amounted to “evidence in support of the prosecution case against the defendant”.

3.  The point is misconceived. Firstly, both PW7 and PW8 not only testified before the jury that they had pleaded guilty to manslaughter, they each specifically admitted the basis of their pleas which was that, on 2 October 2008, they had, together with other persons, attacked Poon Ka-yan, who subsequently died[1]. Secondly, they gave extensive evidence as to what they had each done before and during the attack on the victim. Thirdly, what the judge was giving in the impugned passage of the summing-up was part of a lengthy outline of the prosecution case in respect of a planned attack by the group. He said[2]:

“The prosecution say that (PW7) and (PW8), as well as the two defendants, must have been part of a plan to attack whoever Siu‑fung wanted to be attacked or at least part of an understanding between this group of friends that they had all joined in an attack on anyone who crossed them because only that is consistent with their pleas of guilty which you know (PW7) and (PW8[3]) tendered and which the two defendants were willing to tender as well.”

However, he immediately went on to remind the jury of what he had earlier said[4], that the pleas of guilty to manslaughter tendered by the two defendants were “of no effect” since they had not been accepted by the prosecution[5]. The judge did not say, in terms or by necessary implication, that the jury could use the evidence of PW7 and PW8’s pleas of guilty alone in support of the prosecution case against the defendant.

4.  Moreover, the judge was careful to remind the jury to “scrutinize (PW7 and PW8’s) evidence with care because they both have reasons of their own for telling the police and now you what they think the police want them to say”[6]. He concluded this aspect of his summing-up by saying[7]:

“Of course, the fact that they have got their own interests to serve does not mean that you cannot accept their evidence. Of course, you can. I am just saying you have to bear in mind that they may have reasons of their own for not telling the truth. But if despite everything you are sure that they are telling you the truth and they are not mistaken in their identification of the men in the footage, you will give their evidence the full weight it deserves”.

5.  When the summing-up is properly read and understood in context and as a whole, Question 3 does not arise in this case.

Question 2

6.  The fact that D2 had pleaded guilty to manslaughter upon arraignment, which plea was not accepted by the prosecution, was something that was clearly before the jury, with the consent and at the instigation of defence counsel, from the outset of the case. Indeed, it was a central plank of the defence case, as clearly reflected in the closing speeches of both defence counsel to the jury, that D1 and D2 were in the same position as PW7 and PW8, whose pleas of guilty to manslaughter had been accepted, while their own pleas had not.

7.  Both D1 and D2 had been formally arraigned prior to trial, on 9 January 2020, when they each pleaded not guilty to murder but guilty to manslaughter. At a hearing two days earlier, on 7 January 2020, Mr Duncan Percy, counsel for D1, and Mr Steve Chui, counsel for D2, both confirmed to the judge that their clients would be pleading guilty to manslaughter and that the jury should be informed of their pleas by prosecuting counsel in her opening speech to the jury[8]:

“COURT: … As I understand it, the two defendants, when they are arraigned on Thursday, are going to plead not guilty to murder but will offer pleas of guilty to manslaughter which the prosecution will not be accepting.

MS CHING: In fact, I have spoken to Mr Percy and Mr Chui whether, yes, the jury should be told about this and it’s ...

COURT: That’s exactly my question.

MS CHING: Yes, it’s -- I’ll ...

COURT: But before we get to that, have I understood the position correctly? The plea will be not guilty to murder but guilty to manslaughter?

MS CHING: Yes, I think this is still the position.

COURT: And that those pleas are not acceptable to the prosecution?

MS CHING: No, not acceptable.

COURT: And therefore my question is, as you anticipated: will the jury be told of the pleas which have been tendered, the plea to guilty -- plea of guilty to manslaughter even though it has not been accepted by the prosecution?

MS CHING: In fact, my view is neutral again because I believe that the jury should not believe in -- wondering what happened to certain persons, but I believe that Mr Percy and Mr Chui, they may have other views. So perhaps I’ll leave the stance for them to inform you.

COURT: Yes, Mr Percy, have you got a view about that?

MR PERCY: Yes, I’m content that the jury be -- normally, the arraignment is done in the absence of the jury as we know.

COURT: It will be done in the absence of the jury. There is no question about that.

MR PERCY: I’m perfectly content for the jury to be informed by your Lordship when addressing the jury as to what’s happened or the clerk that the alternative plea of guilty to manslaughter has been tendered by the 1st defendant. I’m perfectly happy for that to be done at the beginning.

COURT: I think it’s more appropriate to come from the prosecution than the judge.

MR PERCY: Certainly, certainly, yes.

COURT: It’s -- the jury won’t know enough about the case when I address them before counsel for the prosecution’s opening speech for them to take that in, and I think it’s better if it comes from the prosecution. But you are content.

MR PERCY: I’m content for that. Yes.

COURT: Okay, very well.

MR PERCY: Yes.

COURT: Mr Chui?

MR CHUI: Yes, the same position for D2.

COURT: I see.

MR CHUI: We will be contented ...

COURT: Very well.

MR CHUI: ... to let the jury know about that D2 has pleaded guilty to manslaughter.

COURT: Very well. My personal view is it’s better. Anything which the jury can be told which gives them an overall picture about the case ...

MS CHING: Yes.

COURT: ... the better, and the sooner they are told, the sooner they realise, the sooner they will know that the defendants were in some way involved and it’s not a question of them running a defence of alibi or they weren’t there and all the rest of it. So if the jury are told that, it’ll focus their minds on the true issue in the case much earlier on.

MS CHING: Yes, I entirely agree but because sometimes the defence may not wish us to inform the jury about that ...

COURT: Of course.

MS CHING: ... that’s why I have to leave the choice first to Mr Percy and Mr Chui.

COURT: Absolutely, absolutely. They’ve made their choice ...

MS CHING: Yes.

COURT: ... and we now know ...

MS CHING: Yes.

COURT: ... what it is, and you are content to tell the jury in your opening about that.

MS CHING: Yes, I will.

COURT: Good.”[9]

8.  It is quite apparent that upon arraignment both D1 and D2 entered unequivocal pleas of guilty to manslaughter, which amounted to an admission of guilt to the manslaughter of Poon Ka-yan. Accordingly, and with everyone’s understanding and agreement at trial, Ms Ching opened her case by saying[10]:

“And with the leave of the learned judge and consents of the defence I would also like to tell you that while both defendants are pleading not guilty to the offence of murder, they both intend to plead guilty to the offence of manslaughter, but the pleas were not accepted by the prosecution.”

In her closing speech, she repeated the point[11]:

“You may recall that in my opening speech I mention that both defendants had pleaded guilty to the offence of manslaughter, which was regarded as a less serious offence than murder.”

9.  As for the defence, Mr Percy, counsel for D1, reminded the jury in his closing address that his client had pleaded guilty to manslaughter but not guilty to murder, which plea was rejected by the prosecution[12]; while the principal argument of Mr Chui, counsel for D2, was that there was no difference between his client’s guilt and that of PW7 and PW8[13]:

“I can only echo my learned friend Mr Percy’s submission to you. We are not here to criticise the decision of the Department of Justice, why they accepted the guilty plea of the two accomplice witnesses for manslaughter but not murder. But here, you have to try these two defendants for murder. If you understand my submission, what’s the difference between my client’s case with PW7 and PW8? They are the same. …”

Earlier, he said of D2’s case that if one were to rely on D2’s admissions alone that he had stepped on the victim twice, “his case was just the same as the two accomplice witnesses, is it not?”[14].

10.  In light of the position adopted by (D1 and) D2’s counsel at trial, the point now sought to be argued is highly artificial and somewhat disingenuous. There was never any issue about the defendants’ unequivocal pleas of guilty to manslaughter upon arraignment. Indeed, the defence wanted the fact of the defendants’ manslaughter pleas to be used by the jury in their favour so as to avoid a murder conviction, a point which was in fact endorsed by the judge himself when he told the jury, “the fact that they were prepared to plead guilty to manslaughter is a factor which you can and should take into account” in deciding whether the defendants were guilty of manslaughter rather than murder[15]. Yet, now it is said that this fact should not have been referred to. Not surprisingly, D2’s counsel at trial never sought to complain about, or raise, this matter with the judge, nor did he counter the obvious implication of his client’s plea, which was an acknowledgment that he at least participated in an attack with others.

11.  We do not see that R v Hazeltine[16], which is relied upon by the applicant, is relevant. In that case, the judge told the jury in his summing-up that since the defendant had earlier pleaded guilty to unlawful wounding (before they were placed in charge of the accused), which plea was not accepted by the prosecution, it was not necessary for them to consider this lesser alternative charge[17]. Accordingly, they were simply asked whether the defendant was guilty or not guilty of the more serious count of wounding with intent. The jury found him not guilty in accordance with those directions, but the judge then proceeded to sentence the defendant on the basis of his earlier plea to unlawful wounding, which the prosecution had rejected. The situation in the case before us might have been the same if, having told the jury that D2 had pleaded guilty to manslaughter, which plea had been rejected by the prosecution, the judge had then told them they did not have to consider the alternative charge of manslaughter, and the jury had acquitted altogether. In the present case, of course, the jury convicted of murder.

12.  The case of R v Lee[18], which is relied upon by the respondent, is of some interest. There, the judge had directed a verdict of guilty to a lesser offence following the jury’s acquittal of the more serious offence, on the basis that the defendant had earlier entered a plea in their absence to the lesser offence, which plea had been rejected by the prosecution. The late Sir John Smith remarked, in his commentary to this case in the Criminal Law Review[19]:

“The ‘plea’ is not conclusive, but it is evidence against the defendant, like any other admission, and its relevance will depend on the course that the trial takes.”

It may be noted that in his closing address to the jury, counsel for D2, whilst inviting the jury to convict of manslaughter rather than murder, went further and advanced a rather extraordinary and somewhat fanciful submission that he was not guilty altogether; which would no doubt have rather baffled the jury since it was being simultaneously impressed upon them that the defendants had been prepared to plead guilty to the manslaughter of Poon Ka-yan.

13.  Indeed, we were somewhat mystified how it was that Mr Chui was even able to make a submission that his client was not guilty altogether, when he must have received instructions that his client was guilty of manslaughter in order to have represented him when he pleaded as he did upon arraignment; a plea which has been characterised by Cheung PJ (as he then was) in HKSAR v Chan Chi Ho Lincoln[20] as a “prior, historical fact that there has been made by the defendant an unequivocal admission of guilt”. In R v Asiedu[21], Lord Hughes said of a defendant who pleads guilty that he “is making a formal admission in open court that he is guilty of the offence”. And as the judge himself said, in the exchange before the pleas were entered, the sooner the jury were told of the guilty pleas “the sooner they will know that the defendants were in some way involved and it’s not a question of them running a defence of alibi or they weren’t there and all the rest of it”[22].

14.  The judge was perfectly entitled, given the course that the trial took, to point out that the defendants’ pleas of guilty to manslaughter, which were freely referred to by all counsel and himself and were never in issue throughout the trial, indeed it was part of the defence tactic to rely on such pleas, meant that both defendants must have accepted the fact that they were party to an attack, whether the prosecution accepted their pleas or not.

15.  This point, which in any event is an inconsequential and immaterial one in an otherwise overwhelming case against D2, is in our judgment not reasonably arguable.

Question 1

16.  This Question is a misreading of what the judge actually said. The judge correctly conveyed the essential point in HKSAR v Chan Kam Shing, which is set out at [92] of the judgment of this Court. We do not propose to repeat it. This point does not arise in this appeal.

17.  We decline to certify any of the proposed Questions.