HKSAR v. SHEK KA KWAN AND ANOTHER

CACC 438/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 438 OF 2014

(ON APPEAL FROM HCCC NO. 397 OF 2013

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.  The 1^st and 2^nd applicants, to whom we shall refer as Shek and Lai respectively, seek leave to appeal against their convictions for the murder of Tsang Ming Sze on 8 August 2012, after a trial before Deputy High Court Judge McMahon, contrary to common law and section 2 of the Offences against the Person Ordinance, Cap. 212. They stood trial together with Mui Chun Yu, Ricky. He too was convicted of murder but he abandoned his appeal against conviction, which was dismissed on 13 October 2016.

2.  Initially, they were indicted jointly with two other defendants, namely Au Yeung Chun Yee and Yung Kwun Kit.  Their pleas of guilty on arraignment to manslaughter were accepted by the prosecution, for whom they gave evidence in the trial of the applicants.  This Court allowed Au Yeung Chun Yee’s appeal against sentence on 15 July 2016, quashed the sentence of 7 years’ imprisonment and imposed a sentence of 6 years’ imprisonment.[1] 

3.  In a letter to the Court dated 10 January 2017, Mr Andrew Raffell informed the Court that he was unable to support any of the grounds of appeal against conviction which he had settled and filed with the Court on behalf of Lai.  Those grounds included the ground that, in light of the judgments of the Supreme Court of the United Kingdom in R v Jogee and the Privy Council in Ruddock v The Queen [2], the judge’s directions in respect of joint enterprise were wrong.  Mr Raffell explained that, in light of the judgment of the Court of Final Appeal in HKSAR v Chan Kam Shing [3], he was unable to support that ground of appeal.  Mr Raffell said that he attended the hearing only to assist the Court, if asked and if able to do so.

4.  At the outset of the hearing, Ms Charlotte Draycott SC informed the Court that she too was unable to argue that particular ground of appeal, namely that, in light of the judgments of the Supreme Court of the United Kingdom in R v Jogee and the Privy Council in Ruddock v The Queen, the judge’s directions in respect of joint enterprise were wrong.  She apologised to the Court for not having given notice of that change of position.

The trial

5.  The corpse of Tsang Ming Sze was found floating face down in the sea some 200 metres off Lohas Park, Tseung Kwan O at about 5 p.m. on 11 August 2012.  He was nearly 15½ years old at the time.  The state of decomposition was such that a subsequent autopsy was unable to determine the complete nature of his injuries at the time of his death, nor the cause of death.[4] The state of his body was consistent with drowning.  He had suffered no broken bones.  

The prosecution case

6.  Ms Au Yeung Chun Yee, who was 15 years and 10 months old on 8 August 2012, testified that a few days earlier she had come to learn that the deceased had spoken ill of her behind her back, in particular alleging that she was enjoying an intimate relationship with somebody.  On 3 August 2012, she spoke to the deceased on the telephone and, after she had confronted him with what he had said about her, he agreed not to repeat the allegation.  However, subsequently she learned that he continued to make the allegation.  She was very angry and decided to get someone to teach him a lesson.  So, on 6 August 2012 she conveyed that information to Lai’s girlfriend.  Then, Lai telephoned her and, after she had told him of the circumstances and that she wanted that person taught a lesson, they arranged to meet.  On 7 August 2012, she was with Shek and others when she met Lai.  She identified the deceased by name to Lai and he suggested that, for purposes of confronting the deceased, she pretend to be his girlfriend.

7.  In the early hours of the morning of 8 August 2012, Au Yeung Chun Yee went together with others to a pier beneath a bridge at the North head of Junk Bay, Tseung Kwan O.  The others included Shek [5] (also known as Ah Kwan), Lai [6] (also known as Kelvin), Mui [7] (also known as Ah Nam), Yung Kwun Kit [8]  (also known as Lat Chiu), Lau Yuen Yan (also known as Sai Yan)[9] and Yeung Chung Ho (also known as Ah Lung) [10].  She and Shek telephoned the deceased inviting him to join them.  Eventually, he agreed and joined them where they were gathered smoking cigarettes, drinking beer and playing cards at the pier.

8.  Later, having suggested that the deceased had offended his ‘girlfriend’, Ms Au Yeung Chun Yee, Lai began to attack the deceased, who warded off the blows but did not fight back.  Then, in sequence Mui and Shek joined in the attack.  The deceased was kicked and punched, so that he fell to the ground bleeding and semi‑conscious.  Beer was poured over him to revive him.  At one stage, Lai brandished a spanner at the deceased, but he was disarmed by Shek.

9.  Yeung Chung Ho testified that he had seen the deceased hand over his phone and wallet to Lai at the latter’s demand.  For his part, Lai passed the wallet to Mui.  Yung Kwun Kit said that Mui threw the SIM card taken from the deceased’s mobile telephone into the sea.

10.  Mui told the group that the deceased had to be killed otherwise he would go to the police and cause trouble.  He said a string, attached to a rock, would be tied to the deceased and he would be thrown into the sea.  Next, at Mui’s suggestion that fingerprints and saliva be removed, the place where they were gathered was cleaned up and cigarette butts and beer cans were removed.  Finally, Shek, Mui and Yung Kwun Kit walked together with the deceased away from the pier towards Lohas Park.

11.  Au Yeung Chun Yee testified that about 15 minutes later Lai carried her as a passenger on his bicycle in the direction of Lohas Park.  In their journey, they overtook the deceased, as he was walking together with Mui, Shek and Yung Kwun Kit.  However, Lai stopped at a public toilet.  At Lai’s request she checked the inside of the women’s toilet to see if there was anyone present.  No one was there.  Then, having waited for a few minutes they returned together on Lai’s bicycle to the pier.  About 15 minutes later, Mui, Shek and Yung Kwun Kit joined them.  The deceased was not with them.

12.  Yung Kwun Kit testified that he accompanied the deceased with the others in the walk towards Lohas Park.  Eventually, they entered an area with bushes.  Then, at Mui’s direction, the deceased lay on the ground near to the water’s edge.  Whilst the deceased was in that position, Mui stamped on his head and chest and Lai kicked his legs.  Having appeared to check the deceased’s heartbeat and breath, Mui declared that he was still breathing.  Then, Mui resumed his attack on the deceased, kicking his chest.  Shek looked on.  Finally, having been unsuccessful in attempting to push the deceased into the sea, Mui enlisted Shek’s assistance and between them they picked the deceased up by his legs and arms and, first having swung him backwards and forwards, they threw him into the sea.  Yung Kwun Kit agreed that when the deceased was thrown over the seawall, he was conscious.  He saw that the deceased’s head and arms floating in the water, but he did not see the deceased move or make any sound.  The level of the sea was about two metres below that of the edge of the seawall from which he had been thrown.  Then, the three of them left and returned to the place that they had gathered earlier at the pier.  Later, the party went to a McDonalds restaurant in Hang Hau where the deceased’s belongings were passed around.

13.  The prosecution case was that the applicants were part of a joint enterprise to kill or cause serious bodily harm to the deceased, and that they intended him to die.

14.  In their case against Shek, the prosecution relied in particular upon the evidence of Au Yeung Chun Yee and Yung Kwun Kit, together with Shek’s out-of-court statements in video recorded interviews.  Shek was involved from the beginning.  He and Au Yeung Chun Yee inveigled the deceased to come to the pier.  There, together with Lai and Mui, Shek had assaulted the deceased.  Shek had been party to escorting the deceased to Lohas Park, where he helped throw the deceased into the sea.  It was submitted that the only reasonable inference from the evidence was that Shek was in a joint enterprise with the others to assault the deceased and throw him into the sea. Shek and Mui threw the deceased into the sea, when on Shek’s account in his out-of-court statements the deceased was almost at his “last breath” [11].  There, the top of the seawall was about two metres above the sea level and was a sheer drop.  That was highly relevant to Shek’s intention.

15.  In respect of Lai, the prosecution case was that he was a member of the joint enterprise, although they acknowledged there was no evidence that he was involved directly in the assault in the bushes or in throwing the deceased into the sea.  The prosecution pointed to Lai’s answers in his video recorded interviews, in particular that Mui had asserted that the deceased must be killed to prevent him from going to the police [12]and that as part of that plan the deceased was to be taken to Lohas Park.[13]  So, Lai foresaw what was going to happen. 

16.  Although Lai asserted repeatedly in his video recorded interviews that he remained at the pier [14], after the deceased, Shek, Mui and Yung Kwun Kit left and walked in the direction of Lohas Park, the prosecution relied on the evidence of Au Yeung Chun Yee and Yung Kwun Kit to the effect that was untrue.  He had gone with Au Yeung Chun Yee to the public toilet adjacent to the bushes in which the deceased was assaulted.  That was close to the seawall from which he was thrown into the sea.  There, he asked Au Yeung Chun Yee to check the female toilet to see if anyone was present.  The prosecution submitted that Lai was actually the one giving orders and running things.  He took the deceased’s wallet and telephone.  Both Mui and Yung Kwun Kit had been brought there by Lai.  The prosecution also pointed to Au Yeung Chun Yee’s evidence of an admission of having been involved in the deceased’s killing made by Lai to his wife at their home on a later date in August 2012.[15]

The defence case

17.  None of the three defendants at trial availed themselves of their right to give evidence.

18.  The case for Shek, as set out in his out-of-court statements adduced in the prosecution case, and advanced in cross-examination and in submissions, was that he and the deceased were friends.   He had no intention to kill or even cause the deceased serious bodily harm.[16] Rather, he had intervened and had tried to mitigate on behalf of the deceased.  It was submitted that there was no evidence in the autopsy report of a brutal beating.  The deceased was able to walk and talk, up to and until the time that he had been taken to the seawall.  The bulk of Shek’s assaults were either slapping or kicking the deceased’s lower parts or legs.  It was submitted that, at the time Shek assisted in throwing the deceased into the sea, there was no evidence he knew the depth of the sea at that place or that he knew the characteristics of the seawall, relevant to a person in the sea trying to come back onto land.  Also, reliance was placed on Shek’s assertion in his video recorded interview that he thought that the deceased could survive, as he knew how to swim.[17]  There was no evidence that Shek knew the deceased would drown.

19.  Whilst no issue was taken with the prosecution evidence of the applicant’s response to having been arrested and cautioned, issue was taken in respect of the circumstances in which he had participated in the video recorded interviews.  He had been assaulted and inducements offered to him to cooperate in those interviews.  He was coached by police officers to give a particular version of events.  As a result, it was submitted that the jury should place no reliance on those video recorded interviews.  In that event, there was insufficient evidence as to what happened to the deceased in the bushes.

20.  The jury was invited to determine that the evidence of Yung Kwun Kit was unreliable.  He was motivated to give an account of the events to the prosecution, in order to ensure that he was prosecuted for manslaughter, so that his plea of guilty to that offence would be accepted.  He had been coached to give an account of the events acceptable to the police.  In testifying he hoped to secure a reduced sentence of imprisonment.

21.  The case for Lai at trial was that, although he had beaten the deceased on the pier, he did not go into the bushes nor did he throw the deceased into the sea.  He was not involved in the decision to kill the deceased, nor did he contemplate that anyone would do so.  There was no evidence that he had heard Mui’s declaration that the deceased should be killed.  Lai had no motive to kill the deceased.  The deceased had been alive before he was taken to the bushes at Lohas Park.  So, he must have died because of something that happened after he was taken there.  It was submitted that the statements in his video-recorded interviews should be ignored, as he had been asked too many unfair questions, and because Lai may have come to know of the scheme to throw the deceased into the sea only after the event.  In fact, Lai had been part of the group shouting to Mui to stop hitting the deceased and urging him to let him go.  Lai was not the one supervising the others.  For his part, he had telephoned only Mui.  The telephone records showed that it was Yeung Chung Ho who had called him.

22.  It was submitted that Au Yeung Chun Yee and Yung Kwun Kit, together with Lau Yuen Yan and Yeung Chung Ho, who had given evidence under immunity, were not credible witnesses.  There were internal and external inconsistencies in their evidence.  Their evidence was inconsistent with what they had said at the outset to the police under caution and even with their subsequent non-prejudicial statements.  Au Yeung Chun Yee and Yung Kwun Kit were giving evidence as part of an arrangement in which they pleaded guilty and in order to obtain a reduced sentence.  Lau Yuen Yan gave evidence, having been arrested and interviewed for the murder of the deceased, in an arrangement in which no charges were brought.  Yeung Chung Ho gave evidence, having been arrested, interviewed and charged with the murder of the deceased, but which charge had been withdrawn.  So, they had an incentive to give evidence favourable to the prosecution. 

Grounds of appeal against conviction

Shek

23.  At the hearing, Ms Draycott advanced a single ground of appeal against conviction on behalf of Shek, namely the judge erred in failing to give the jury a Nedrick direction.[18]  She submitted that there was evidence at trial that, whilst Shek might have foreseen the possibility of death or serious injury to the deceased, nevertheless he did not want or intend that result.  Shek had not intended and did not want the deceased to die.  In his video-recorded interview, Shek said that he did not want the deceased to die and did not think he would be killed.  Accordingly, the issue arose of whether or not Shek knew that it was a ‘virtual certainty’ that death would result from the deceased being thrown into the sea.  As a result, the judge was required to give the jury a Nedrick direction.  

24.  It was submitted that without that direction, the jury was unable to follow the distinction made by Shek’s counsel at trial, Mr Oderberg, in his speech between what Shek foresaw might be the consequence of his act, and what the jury was sure was the virtually certain result of his action.

Lai

25.  In the grounds of appeal against conviction settled by Mr Raffell and filed with the Court for Lai, in addition to submitting that, in reliance on the judgment of the Supreme Court of the United Kingdom in R v Jogee, the judge erred in his directions in respect of joint enterprise, Mr Raffell submitted that there was a ‘lurking doubt’ as to the safety of Lai’s conviction.  In advancing that ground, he submitted that the judge had given inadequate directions in respect of the witnesses for the prosecution who were parties to the killing or involved in acts related to the killing.

26.  Grounds of appeal against conviction were set out in a hand written attachment to Form XI, filed with the Court on 30 December 2014, by which Lai gave notice of his application for leave to appeal against conviction.  First, he submitted that the evidence of Lau Yuen Yan and Yeung Chung Ho, each of whom gave evidence under an immunity from prosecution, ought not to have been accepted.  The latter had ample reason to give false evidence against him.  He invited the Court to note that the account that Shek had given in his statement under caution contrasted with his subsequent video recorded reconstruction of events.  Then, he submitted that Yung Kwun Kit was a more credible witness, given that his testimony was more consistent with the account that he had given in his statement under caution.

27.  Next, he invited the Court to note that in his statement under caution he had responded in the negative when asked if he knew what was going to happen to the deceased, before the deceased was taken to the bushes.  Finally, the applicant contended that the judge’s summing up was biased, not only because it was selective but also because he made unnecessary argumentative comments.  However, Lai gave no particulars of the impugned directions.  He said that the biased nature of the summing up was evidenced by the fact that the jury returned a verdict in less than four hours.

The respondent’s submissions

28.  Ms Anna Lai, SC for the respondent submitted that, having regard to the judgment of the Court of Final Appeal in HKSAR v Chan Kam Shing, the grounds of appeal advanced on behalf of the applicants in respect of culpability arising from joint enterprise, which had as their foundation the judgment of the Supreme Court United Kingdom in R v Jogee, were misconceived.  The Court of Final Appeal in HKSAR v. Chan Kam Shing had not only declined to follow Jogee but also reaffirmed that the law was as articulated in the advice of the Privy Council in Chan Wing Siu v The Queen [19]. The judge’s directions accorded with the law articulated in the latter case.

29.  Of the ground of appeal that the judge had failed to give a Nedrick direction, Ms Lai submitted that, in fact, the judge had given that direction.[20] She invited the Court to note that, in that context, the judge reminded the jury of Shek’s defence, namely that he may not have appreciated that the deceased would die if thrown into the sea.  The judge went on to remind the jury to take into account all the evidence relevant to the issue of Shek’s intention, including the deceased’s physical condition when he was thrown into the sea and what Shek had said in his video recorded interviews. 

30.  Ms Lai said that, in those circumstances, the judge was mistaken, when he accepted the submissions of counsel for the prosecution, Mr Adams, and Mr Oderberg during his summing up, that he had not given the Nedrick direction, when he had in fact done so.  Ms Lai suggested that it was in those circumstances that, having mistakenly assumed that he had not given the direction and having heard argument from counsel, the judge determined not to give the direction.

31.  Ms Lai acknowledged that Lai was not present at either of the places that the judge identified to the jury as being the locations at which injuries were caused to the deceased which were possible causes of his death, namely the bushes and the seawall.  Nevertheless, she submitted that Lai was part of the joint enterprise to kill the deceased.  Lai knew that Mui had declared that the deceased should be killed.  Further, that Mui had said that he should be thrown into the sea.  So, Lai knew what was to happen to the deceased when he was escorted to Lohas Park.  For his part, he had gone with Au Yeung Chun Yee to the public toilets to check whether there were any persons in the vicinity of where the attack took place in the bushes and at the edge of the seawall.

32.  Ms Lai submitted that the complaints that were made in respect of the four witnesses were not made out.  The judge summarised the effect of the extensive cross-examination of those witnesses and the points made by counsel for the defence in closing speeches.  The jury was directed appropriately to approach their evidence with caution and reminded of the points relied upon by Mr Oderberg in cross-examination and emphasised in submissions.

A consideration of the submissions

Directions as to joint enterprise

33.  Mr Raffell and Ms Draycott were correct, with respect, to acknowledge that there was no merit in their criticism of the judge’s directions in respect of joint enterprise.  The judge’s directions accorded with the law articulated in the Advice of the Privy Council in Chan Wing Siu v The Queen, followed by the courts of Hong Kong.  In his judgment, with which judgment all the other judges agreed, in the Court of Final Appeal in HKSAR v Chan Kam Shing, Ribeiro PJ said:[21]

“ The joint criminal enterprise doctrine based on Chan Wing Siu and the cases following it, endorsed by this Court in Sze Kwan Lung continues to apply in Hong Kong, operating alongside the traditional accessorial liability principles.”

The Nedrick direction

34.  In his closing speech for Lai, Mr Oderberg adverted to the fact that in his out-of-court statements, Lai had asserted that he did not want the deceased to die.[22] In that context, Mr Oderberg observed:[23]

“ If you’re thrown into the water, in the middle of an ocean, of course the high likelihood is a virtual certainty that you will drown.”

35.  Of the relevance of that issue to a consideration of Lai’s case, Mr Oderberg said:[24]

“ This is about whether you should be properly asked, whether you should be invited by the prosecutor, to find that although there is no evidence of it, you are prepared to find that when Ah Ming (the deceased) was thrown into the water or shortly before, that D1 must have known that there was no way of getting out, there was nothing for him to hang onto on the other side of the seawall, that he knew the depth of the water, that he knew it was 200 m to the right.”

36.  Of that issue, Mr Oderberg suggested that, since Lai had not been asked about those issues in his out-of-court statements, there was no evidence.  Accordingly, he submitted to the jury:[25]

“ There is no basis whatsoever for concluding that anyone, let alone Ah Shek (Ah Kwan?), had any basis in fact for believing that throwing Ah Ming into the water where he was thrown in would necessarily or even carry with it a probability of death.”

37.  In conclusion, Mr Oderberg submitted:[26]

“ But we have no evidence, nor was there any attempt by the prosecution to prove to you that Ah Ming (Ah Kwan?) either knew or foresaw that anyone being thrown there would have absolutely no ability to save themselves, either by holding on, or by someone else coming along, or by simply standing up.”

Discussions between the judge and counsel

38.  Although the issue of the judge providing written directions to the jury was raised first with counsel on 6 November 2014, and the contents of those draft directions discussed between counsel and the judge on a number of occasions in November it appears, the request that the jury be given a Nedrick direction was not raised specifically by Mr Oderberg until the summing up, during the luncheon adjournment on 9 December 2014.  Nevertheless, it is apparent from the lower court file that the judge was provided with a list of authorities by the prosecution, which included Nedrick, at an earlier stage of the trial.

39.  On the morning of 9 December 2014, the judge began his summing up.  At the luncheon adjournment, in the absence of the jury, the following exchange ensued between the judge and Mr Oderberg:[27]

“ MR ODERBERG: The only other matter that I was concerned about just now was whether or not you will, in effect, be giving a sort of Nedrick direction, that is as to the virtual certainty if you find that...

COURT:  Yes.”

Mr Oderberg went on to elaborate on his request:[28]

“ MR ODERBERG:  ...my only concern, and I think my concerns may be premature was simply whether you’d be giving a sort of Lord Lane Nedrickdirection as to the throwing into the sea, because you would, I hope...

COURT:  That’s where the Woollin direction comes in, yes.

MR ODERBERG:  That’s right, I hope it was understood by the jury that what I was putting was, regardless of the stone, if he was alive when he went into the sea you’d need to consider the intention, knowledge and foresight of D1 as to the act of throwing him into the sea which really engages the Lord Lane test in Nedrick.... 

COURT:  I think the door is open, Mr Oderberg.”

40.  Subsequently, the judge said:[29]

“ COURT: Yes, and you will get a Nedrick direction in respect of your defendant.”

Then, the judge continued to sum up to the jury in the afternoon, adjourning at 4:30 p.m. to the following day.

41.  On 10 December 2014, the judge resumed his summing up.  At about 1:15 p.m., the jury was invited to retire to consider their verdicts.  Shortly before 3:00 p.m. the court reconvened at the request of Mr Adams, counsel for the prosecution, who informed the judge “...you may have omitted to give a direction which you indicated you would give”, namely the Nedrick direction.  Then, the following interchange ensued between the judge and counsel:[30]

“ COURT: I did give that direction, did I not? Yes.

MR ADAMS: Well, if that is the case, it would indicate that your Lordship did think you were going to give it.

COURT: Yes, I told Mr Oderberg I would give it and I thought I had. Now, just let me find it. Yes, it was in respect of intention relating to the 1st defendant, “Intended to,” “Someone does or does not” -- no, I haven’t. I’m sorry, it’s not in my notes, so I don’t think I did. “Equally” -- this is where it should have been -- I must say that I am not sure that a Nedrick direction was really required, but I can understand Mr Oderberg’s request. It is very similar to the facts in Nedrick, isn’t it, in terms -- yes, so I can understand that.”

42.  For his part, Mr Oderberg cited to the judge the relevant passage from the judgment of Lord Lane CJ in Nedrick:[31]

“ Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty, barring some unforeseen intervention as a result of the defendant’s actions and that the defendant appreciated that such was the case. The decision is one for the jury to be reached upon a consideration of all the evidence.”

43.  The judge said:[32]

“ No, I have told you that I was going to give the direction and I’d considered it and I think in these circumstances where your defendant said, “I didn’t really want him to die,” and things of that nature and, “I think he could be saved,” and those sort of ambiguous statements that the jury’s aware of, I thought you just managed to push it over the hurdle into a direction being given.

...

       And I will give that direction, but when I was doing this direction, I’ve drafted it up somewhere.  I’m surprised it’s not in the file.  I must have left it somewhere else.”

44.  Then, the judge said “I’m not sure that I haven’t given that direction.” [33]  Nevertheless, having adjourned in order to locate his written draft of that direction, the judge informed counsel that he was unable to find it, but told them what he recalled of the proposed direction:[34]

“ Before you find that the 1st defendant had that intention, that is an intention to kill or cause really serious bodily harm, you have to be sure that death or really serious bodily harm is a virtual certainty if Ah Ming was thrown into the sea in the condition he was in and that the 1st defendant realised that this was so.”

45.  For his part, Mr Adams said:[35]

“In trials of murder a Nedrickdirection would rarely be needed if the offence consisted of a direct attack on the victim.  Because Nedrickwas not a direct attack on the victim.  The victim was a child and the idea of the (?)was to scare the woman, the mother of the child, out by pouring paraffin into the letterbox.”

46.  In the result, the judge said:[36]

“ But the more I think about it, what we have here is a vicious beating at the pier, the man is then told that he’s going to die, he then is taken up to Lohas Park and then in the bushes he is effectively executed.  “Is he still alive?” “He’s breathing,” that sort thing and then, “Give me a hand to throw him into the water.  Find a stone to weigh him own. We can’t find a stone, we’ll just throw him into the water.”

No, it’s not a Nedrick.  It’s not a Nedrick.  Nedrick is applicable, as far as I can see, only when the issue is such a narrow issue where everything hangs on foresight and probabilities and things of that and Nedrick just cleaned up a whole mess of earlier directions and differing directions about probabilities and that aspect of the law is now rapidly diminishing in terms of influence within the realm of murder....

...

and I don’t think in law this direction should be given.  I do apologise for earlier telling you that it would be one I would give.”

47.  For his part, Mr Adams said that “...the prosecution’s position is that a Nedrick direction is not necessary in this case.” [37]

The judge’s directions

48.  As noted earlier, Ms Lai submitted that the judge had given a Nedrick direction to the jury, namely:[38]

“ If you conclude that when the 1st defendant, after assaulting or helping to assault Tsang Ming-sze and then helping to throw him into the sea, if you conclude that at the time the 1st defendant assisted throwing Tsang Ming-sze into the sea, given the surrounding seawall, the height of that seawall, if you conclude at that stage, given the beating that Tsang Ming-sze had suffered and his perhaps unconscious or semi-conscious state as the 1st defendant described it in his first video-recorded interview, if you conclude that at that time the 1st defendant realised that Tsang’s death was virtually certain as a result of what had been done to him, you can take that into account in determining whether or not the prosecution have proven this third matter. That is, that the 1st defendant, at the time of the fatal act or acts intended to kill or cause really serious injury to Tsang.” [Italics added.]

49.  In context, the judge was there directing the jury in respect of the matters proof of which was required before Shek could be convicted of murder.  He had identified three matters in a written handout provided to the jury.  The third matter was “...the 1st defendant, at the time of the fatal act or acts, intended to kill or cause really serious bodily harm” to the deceased.  In his oral directions, the judge said:[39]

“ Now, you can see that the issue in respect of this third matter is the intention of the 1st defendant at the time the fatal act or acts caused Tsang’s death.”

50.  Of the prosecution case, he said that they suggested that:[40]

“ ..anyone who participates in a physical assault of the sort that Tsang Ming-sze was subjected to and then helps to throw him into the sea from a high seawall, must intend him to die, and at the very least intend to do him really serious harm.”

51.  Of the defence case, he said that it was submitted that:[41]

“ ... you must have a doubt about that because there is no evidence that the 1st defendant knew how deep the water was at the point where Tsang was thrown into the sea, and nor was there any evidence as to whether he knew that the seawall extended for 200-odd metres in either direction. In other words, Mr Oderberg says that the 1st defendant may not have appreciated that Tsang could die if he were thrown into the sea.”

52.  Of the evidence relevant to resolving that issue, the judge said:[42]

“ ... you take into account all of the evidence, including the evidence of the physical condition of Tsang Ming-sze when he was thrown into the sea. Do you think it realistic to suggest that the 1st defendant was unaware of the condition of Tsang when he was thrown into the sea? If Tsang was unconscious or semi-conscious at that time then how was he to survive?

Bear in mind that in his video-recorded interview and reconstruction, the 1st defendant said he thought Tsang Ming-sze could still be saved after he was thrown into the sea. Well, if you accept that statement as possibly being true, then you might think that the 1st defendant believed that Tsang was still alive at that time. The 1st defendant therefore thought he had thrown a living person, one who he said he thought was “on his last gasp”, however, into the sea. Does that help you in deciding the 1st defendant’s intention?”

53.  Of the issue of the time at which proof was required that Shek had the requisite intention, the judge said:[43]

“ Bear this in mind. We cannot be sure whether Tsang drowned or whether he had already died during the beating he received before being thrown into the sea. Therefore, the intention of the 1st defendant to kill or cause really serious injury to Tsang must have existed during the beating as well as at the time Tsang was thrown into the sea for the prosecution to have proven this last matter.”

54.  Of the distinction between intention and what a person wanted, the judge said:[44]

“ Whether someone does or does not want someone to die or suffer really serious injury does not really determine whether they intend them to die or suffer really serious injury. It is, however, something you take into account when you consider the question of their intention. But you should bear in mind that a person may not want to cause something to happen, but they may still intend that thing to happen.”

55.  In Rv Nedrick, the Court of Appeal of England and Wales quashed the appellant’s conviction for murder and substituted a conviction for manslaughter.  The prosecution case was that the appellant had a grudge against a woman, as a result of which, he threatened to “burn her out”.  In the early hours of the morning, he had poured paraffin through her letterbox and set it alight.  He gave no warning.  One of the woman’s children died of asphyxiation and burns.

56.  The prosecution relied on the appellant’s out-of-court statement to the police “I didn’t want anyone to die, I am not a murderer; please tell the judge; God knows I’m not a murderer.”  As to why he had done what he did, the appellant said “Just to wake her up and frighten her.”  The defence case was that he had not started the fire and had made no out-of-court admissions.

57.  Having noted that the judge’s directions to the jury were given before the judgments of the House of Lords in R v Moloney [45] and R v Hancock,[46] Lord Lane CJ said that, in light of those judgments, the judge’s directions were “plainly wrong”.

58.  Of the issue of intention, Lord Lane CJ said:[47]

“ What then does a jury have to decide so far as the mental element in murder is concerned? They simply have to decide whether the defendant intended to kill or do serious bodily harm. In order to reach that decision the jury must pay regard to all the relevant circumstances, including what the defendant himself said and did.

In the great majority of cases a direction to that effect will be enough, particularly where the defendant’s actions amounted to a direct attack upon his victim, because in such cases the evidence relating to the defendant’s desire or motive will be clear and his intent will have been the same as his desire or motive. But in some cases, of which this is one, the defendant does an act which is manifestly dangerous and as a result someone dies.  The primary desire or motive of the defendant may not have been to harm that person, or indeed anyone.  In that situation what further directions should a jury be given as to the mental state which they must find to exist in the defendant if murder is to be proved?”

59.  Lord Lane CJ added:[48]

“ It may be advisable first of all to explain to the jury that a man may intend to achieve a certain result whilst at the same time not desiring it come about.”

Then, he went on to say:[49]

“ Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.”

60.  In light of that suggested direction, it is to be remembered, as noted earlier, that, having reminded the jury of the unchallenged evidence that “after assaulting or helping to assault” the deceased, Shek had helped to throw him into the sea when the deceased was in an “unconscious or semi-conscious state”, the judge directed the jury:[50]

“ ...if you conclude that at that time the 1st defendant realised that Tsang’s death was virtually certain as a result of what had been done to him, you can take that into account in determining whether or not the prosecution have proven this third matter.”

61.  Clearly, with respect to Ms Lai, that direction did not accord with the direction set out by Lord Lane.  Importantly, of the evidence that he had described relevant to the issue, the judge directed the jury that they could “...take that into account in determining whether or not the prosecution have proven this third matter”.  By contrast, Lord Lane’s direction required that the jury be told that “...they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty” as a result of the defendant’s actions “and that the defendant appreciated that such was the case”.  So, before the jury could infer the requisite intention for murder, first the jury had to be sure that the death or serious bodily injury to the deceased was a virtual certainty and that the defendant realised that.  Also, whilst making reference to the subjective requirement of knowledge in the applicant, that death or serious bodily harm was a virtual certainty, the judge’s direction omitted any reference to the objective requirement.

62.  It is to be noted that the direction given by the judge differed significantly from the direction, to which reference was made earlier, that the judge told counsel he had intended giving, namely:[51]

“ Before you find that the 1st defendant had that intention, that is an intention to kill or cause really serious bodily harm, you have to be sure that death or really serious bodily harm is a virtual certainty if Ah Ming was thrown into the sea in the condition he was in and that the 1st defendant realised that this was so.”

63.  We are satisfied that the direction given by the judge did not accord with the direction suggested by Lord Lane CJ in R v Nedrick.

Was a Nedrick direction required?

64.  As noted earlier, Lord Lane CJ said of proof of the mental element in murder that the jury has to decide “whether the defendant intended to kill or do serious bodily harm.”  Further, that in making that determination “...the jury must pay regard to all the relevant circumstances, including what the defendant himself said and did.”  He said that a direction to that effect was sufficient “in the great majority of cases”, noting that to be the case:[52]

“ ...particularly where the defendant’s actions amounted to a direct attack on his victim, because in such cases the evidence relating to the defendant’s desire or motive will be clear and his intent will have been the same as his desire or motive.”

65.  In the course of his judgment, Lord Lane CJ said “We have endeavoured to crystallise the effect of their Lordships speeches in R v Moloney and R v Hancock in a way which we hope may be helpful to judges who have to handle this type of case.”

66.  In his speech in R v Moloney, with whom all the other judges agreed, Lord Bridge said:[53]

“ The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding. In trials for murder or wounding with intent, I find it very difficult to visualise a case where any such explanation or elaboration could be required, if the offence consisted of a direct attack on the victim with a weapon...

Even where the death results indirectly from the act of the accused, I believe the cases that will call for a direction by reference to the foresight of consequences will be of extremely rare occurrence.”  [Italics added.]

67.  In HKSAR v Lee Kwan Kong & Ors [54], this Court refused the applications of two applicants in respect of their convictions for murder, but allowed that of a third applicant, quashing her conviction and substituting a conviction for assault occasioning actual bodily harm.  That application was allowed on the basis that several hours separated the last involvement of that applicant in attacks on the deceased, after which in her absence there had been renewed attacks on the deceased by the other two applicants.  The deceased had been subjected to a prolonged and savage beating, over a period of about 24 hours, in which the applicants and others had participated.

68.  In the judgment of this Court, Stuart-Moore VP addressed the issue of whether or not the judge ought to have given the jury a Nedrick direction.  Having referred to the judgment in R v Nedrick and those of the House of Lords in R v Moloney, R v Hancock and R v Woollin [55]and having cited at length passages from the judgment of Lord Lane CJ in R v Nedrick,Stuart-Moore VP said:[56]

“ ...it is plain that the cases in which a ‘Nedrick’ direction, as it has come to be known, needs to be given will be rare, particularly where a defendant has been involved in a direct attack on his victim.”

69.  In applying those considerations to that appeal, Stuart-Moore VP said:[57]

“ In the present case, the trial judge chose to give the standard direction for murder, making it plain that the prosecution had presented their case solely on the basis of an intent to cause really serious injury to the deceased.  We have not been told that the judge was specifically invited at trial to give a Nedrick direction but, even assuming that she had been requested to do so, we are in no doubt that this was not a case which required such a direction.  On any view, the circumstances of this case reveal an admitted desire on the part of D1, D2 and D3 to cause injury to the deceased.  The jury had to decide whether an intent to cause really serious injury had been established against one or more of them and, if so, whether at the time of such injury they were acting jointly in causing the death of the deceased.  This was, in other words, not one of those “rare cases”, to adopt Lord Lane CJ’s phrase in Nedrick, which required a direction to the effect that the defendant whose case the jury was considering recognised that (death or) really serious bodily harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act.

If further support were required for the proposition that a ‘virtual certainty’ direction will rarely be needed, it can be found in R v Moloney [1985] 1 AC 905 at 926 (to which reference was made in Nedrick)...”

70.  In dismissing the applications of the two applicants who had been unsuccessful in the Court of Appeal for leave to appeal to the Court of Final Appeal, in the Determination of the Appeal Committee of the Court of Final Appeal Ribeiro PJ said, of the submission that it was a misdirection of the judge not to give a Nedrick direction, that the rejection of that submission by the Court of Appeal was “wholly convincing”:[58]

“ This is plainly not a case where any Nedrick direction was called for. Nor is this case like Woollin where the defendant acted in a momentary loss of temper. The present applicants clearly desired to cause injury to the deceased when they beat him up. The Judge ruled out an intention to kill. But the question very much for the jury was whether they intended to cause him really serious injury. That required the straightforward direction given by the Judge. Given the evidence of sustained, concerted and brutal attacks spanning many hours, with the applicants using not only their fists and feet but also an iron pipe and a broomstick or mop handle, resulting in extremely serious and ultimately fatal injuries to the deceased, it is not at all surprising that the jury returned their verdict of guilty.”

71.  In his directions to the jury in respect of the matters proof which was required before they could convict Shek of the murder of the deceased, the judge said that they must be satisfied that he had acted together with Lai "in a joint enterprise to physically assault Tsang Ming Sze and throw him into the sea.” [59] Of the evidence relevant to that, the judge reminded the jury that the prosecution relied on the out-of-court statements of Shek, the evidence of witnesses who spoke to Shek and Mui acting together at the pier and of walking away from the pier together with the deceased towards Lohas Park and the evidence of Lat Chiu of what happened in the bushes and at the seawall adjoining the sea.[60]

72.  In his first video recorded interview, Shek said:[61]

“ ...Kelvin told me to ask Ah Ming, that is, TSANG Ming-sze, to come out. Then I called him to ask (him) to come out. After some time, as we had asked him to (meet) at the seashore, we were there chatting and drinking. [A : Yes.] He arrived only later on. After we had been drinking for some time, he arrived. Then we first played for a while, chatted for a while. Then Kelvin started to beat up Ah Ming, asking him why he had bad-mouthed AU-YEUNG Chun-yee behind (her) back. {Someone : [clearing throat sound]} I also took part in the beating. [rustling sound of paper] Then Kelvin decided to kill Ah Ming in order to settle the matter promptly. Therefore, (he) asked Ah Nam and me to take him to a place where there weren’t many people. That place was the bushes near Lohas Park.”

After we had gone in there, Ah Nam first put him down by the sea -- the pier and kept trampling on his head.  [A : Mm.]  I also took part in it [A : Mm.] by stamping on (him) twice (or) three times.  [A : Mm.] Then Lat Chiu and I [A : Mm.] {C : [clearing throat sound]} a-at ‘mak’ (transliteration) -- er, stood aside and watched.

Then Ah Nam bashed him over the head with a rock.  [A : Mm.]  At that time Ah Ming was already at his last gasp.  [A : Mm.]  Saying that he didn’t have enough strength, Ah Nam asked me [A : Mm.] to throw Ah Ming [A : Mm.] into the sea with (him).  [A : Mm.]  That was the story.”

73.  Of Yung Kwun Kit’s evidence, the judge reminded the jury that he testified that, at the stage in proceedings at which the deceased had been told by Mui to lie down next to the seawall, first Mui attacked the deceased “stamping on the head and chest” and then:[62]

“ ...Ah Kwan kicked Ah Ming’s legs a few times, then Ah Ming rolled on his side with his back to the sea and his voice got softer. Ah Lam and Ah Kwan, the 1st defendant and the 3rd defendant, kept beating and kicking Ah Ming. Ah Lam kicked the head and chest and Ah Kwan kicked the legs. Ah Ming started to lie back flat, then Ah Lam checked Ah Ming, or appeared to check to Ah Ming’s heartbeat and placed a finger under his nose to see if he was still breathing, then the 3rd defendant said to Ah Kwan, “He’s still breathing.” Then Ah Lam said to the witness, “Why are you so close? Go back, you’re supposed to be a lookout.”

The 3rd defendant then continued the assault by kicking Ah Ming’s chest.  The 1st defendant was standing looking at this.  The assault lasted a further 5 minutes.  The 3rd defendant then tried to push Ah Ming into the sea but was not able to do so, so he told Ah Kwan to help.  The 3rd defendant picked up Ah Ming’s hand or arm and the 1st defendant picked up Ah Ming’s legs.  They then lifted Ah Ming just above the ground and swung him two times, and on the count of two threw him into the sea.”

74.  Clearly, there was abundant evidence for the jury to consider of Shek’s sustained participation in a direct assault on the deceased up to and until the time that, together with Mui, he threw the deceased into the sea.  We are satisfied that in those circumstances there was no question of the judge being required to give the jury a Nedrick direction.

75.  We are satisfied that the directions that the judge did give the jury, in particular in respect of the burden and standard of proof and the drawing of inferences, relevant to a consideration of the issue of intention, were appropriate and adequate directions in respect of a consideration by the jury of whether or not they were sure that the prosecution had proved that Shek intended to kill or cause serious bodily injury to the deceased.

76.  In his directions to the jury in respect of inferences, and in particular in the context of a consideration of the issue of intention, the judge said:[63]

“ But some facts can often only be established by indirect evidence where you are asked to draw inferences from other facts which you are satisfied have been proven. Often what exists in a person’s mind can only be proven indirectly, that is, by inference.

Now, in this case the prosecution seek to prove that the 1st and 3rd defendants intended to kill Tsang Ming-sze or cause him really serious injury when they beat him and threw him into the sea at Lohas Park.  The prosecution says from their actions that you have heard described by Lat Chiu in his evidence, and as against the 1st defendant, from what the defendant has admitted in his video interviews and re-construction, that you can infer that that is what their intentions were at the time they did those things to Tsang Ming-sze.”

77.  The judge went on to direct the jury:[64]

“ So how do you approach this question of inferences? The law is this. You may only draw an inference against a defendant if that inference is the only reasonable inference to draw from other proven facts.”

78.  Having given the jury a homely example of the drawing of a reasonable inference, the judge repeated his direction:[65]

“ And remember, that you can only draw an inference against a defendant if it is the only reasonable inference to draw from the other proven fact. So if on a set of facts the prosecution ask you to draw an inference against a defendant, but there are other reasonable inferences which could be drawn as well, perhaps in his favour or which are perhaps neutral, then you must draw - you must not draw the inference against him. You can only draw an inference against a defendant if it is the only reasonable inference.”

79.  Of the burden and standard of proof, the judge directed the jury:[66]

“ ...the prosecution must prove its case against a defendant so that you are sure of his guilt. And that leads me onto this important direction. In this trial, the prosecution must prove that a defendant is guilty. He does not have to prove his innocence. In a criminal trial, the burden of proving a defendant’s guilt is on the prosecution. How does the prosecution succeed in proving a defendant’s guilt? The answer is, by making you sure of it. That is the same as proving a defendant’s guilt beyond reasonable doubt. If, after considering all of the evidence, you are sure that a defendant is guilty, you must return a verdict of guilty. If you are not sure, your verdict must be not guilty. A defendant does not have to prove anything. He certainly does not have to prove his innocence.”

80.  The judge repeated his direction, both orally and in writing , in the context of his directions in respect of Shek in relation to the allegation of murder, that it was for the prosecution to make the jury sure that Shek intended to kill or cause serious bodily injury to the deceased:[67]

“ It sets out what must be proved against the 1st defendant before you can convict him of murder. So let me read that:

The prosecution must make you sure:

(1) that the 1st defendant acted together with the 3rd defendant in a joint enterprise to physically assault Tsang Ming-sze and throw him into the sea;

(2) that one or more of those acts caused the death of Tsang Ming-sze; and

(3) that the 1st defendant, at the time of the fatal act or acts intended to kill or cause really serious injury to Tsang Ming-sze.

Now, if the prosecution fail to prove any one of those matters then you must find the 1st defendant not guilty of murder.  Before you can find the 1st defendant guilty of murder you must be satisfied that the prosecution have proven each of those three things that are set out on page 4 of your handout.”

Conclusion

81.  There is no merit in this ground of appeal. Accordingly, we refuse Shek Ka Kwan’s application for leave to appeal against conviction.

Lai Chun man

Prosecution witnesses with an interest of their own

82.  At an early stage in his directions to the jury, the judge identified four witnesses, Lau Yuen Yan (PW 4), Yeung Chung Ho (PW 5), Au Yeung Chun Yee (PW 13) and  Yung Kwun Kit (PW 14) as being “special sorts of witnesses” in respect of whom he gave specific directions:[68]

“ Now, there were some special sorts of witnesses called by the prosecution. You will hear in due course that PW4, Sai Yan; PW5, Ah Lung; PW13, Au Yeung; and PW14, Lat Chiu, were all witnesses who were present at, and in some way involved in, these events to a greater or a lesser extent and that you must approach their evidence with caution because each has something to gain from giving evidence in this trial. I will refer to this again when I come to remind you of those witnesses’ evidence.” [Italics added.]

83.  Subsequently, as he had indicated that he would do, the judge gave further directions in respect of those witnesses.  Of Lau Yuen Yan (PW 4) and Yeung Chung Ho (PW 5), who had given evidence under immunity, the judge said:[69]

“ ....people who give evidence under an immunity may do so simply to serve their own interests. Their interest is perhaps, you will have to consider carefully, pleasing the authorities by giving evidence in terms that the authorities want them to give. That is what is being put to you effectively by counsel. I have told you you must be cautious about the witnesses evidence...” [Italics added.]

84.  Of the conditional nature of the immunity that they enjoyed, the judge went on to remind the jury:[70]

“            ... I should also bring to your attention that at the very beginning of these immunities in paragraph 1 they are told that “on condition they give full and true evidence at the trial or trials of these defendants in connection with the alleged offence of murder no prosecution will be instituted against you”, but you can see that there is a condition.  They have got to give full and true evidence.

            The second paragraph says, “Should you fail to give full and true evidence, the Secretary for Justice shall not be bound by any undertaking given in this document and you may be prosecuted for the said offences or any other offences connected with the said offences.”

            So you can see that this is quite an important document and this is the document on the basis... (on) which they gave evidence.”

85.  Finally, the judge repeated his warning as to the need for caution in approaching their evidence:[71]

“ You must always bear in mind that they did give evidence under that immunity. You must approach their evidence with caution, and as defence counsel have urged upon you, consider whether in giving evidence in the terms that they did they were motivated to please the prosecution to ensure that they kept their immunities.”

86.  Of the need to approach the evidence of Au Yeung Chun Yee (PW 13) and Yung Kwun Kit (PW 14) with caution, the judge said:[72]

“ But you must take into account the fact that Au Yeung and Lat Chiu have pleaded guilty to and been convicted of the lesser offence of manslaughter in assessing their credibility as witnesses. They are both yet to be sentenced for their offences of manslaughter. It may be that because of their co-operation with the police and prosecuting authorities and their giving of evidence in this case that they receive a considerable reduction in their sentence. Ask yourself therefore could they have been tempted to falsely incriminate the defendants now in the dock and still on trial so as to encourage the prosecution to use them as witnesses and so have the opportunity to receive considerably lesser sentences than they otherwise might have received?”

87.  Having reminded the jury, that it was suggested by the defence that those witnesses were “...so tainted as witnesses that you cannot place any weight on their evidence”,[73] the judge said “So you approach their evidence with caution as well.” [74] [Italics added.]

Reliability of the testimony of the four witnesses

88.  In reminding the jury of the testimony of those four witnesses, the judge drew their attention to aspects of their evidence which illustrated matters that might give concern as to the reliability of their evidence.

89.  In respect of Lau Yuen Yan (PW 4), the judge reminded the jury of her testimony in cross-examination:[75]

“ It was put to her the police said, “You co-operate and you will be free”, and she said, “Yes, they said something like that.”

90.  In respect of Yeung Chung Ho (PW 5), the judge reminded the jury of his testimony in cross-examination:[76]

“ It was put to him the police had told him to look at the witness statement and simply learn it, and he said, “Yes.” It was put to him that the police told him to forget the video-recorded interview and stick to the statement he made in June 2013, and he said, “It seems to be so. Yes.”

Now, Mr Raffell cross-examined him. He put to PW5, “You memorised your witness statement like a script”, and PW5 said, “Yes”, he agreed with that.”

91.  In respect of Au Yeung Chun Yee, the judge reminded the jury that in her testimony in cross-examination she agreed that in her video recorded interviews “her main concern was to protect herself.” [77]  Finally, in respect of Yung Kwun Kit the judge reminded the jury that in cross-examination he had agreed that, before he had made any of his non-prejudicial witness statements, he had been served with all of the case papers, including witness statements, and that he had agreed “...he had read all the papers and he knew what Sai Yan and Ah Lung said and Au Yeung said in the video-recorded interviews, so he had all that material available to him prior to making his witness statements.” [78]

92.  In addition, in his lengthy review of the testimony of the four witnesses, the judge reminded the jury of the internal inconsistencies in the accounts that they had given previously and also in respect of the differences in the accounts that the four witnesses gave of the events.

Conclusion

93.  We are satisfied that the judge’s direction to approach the testimony of the four witnesses with caution was appropriate and that, by way of assistance to the jury in determining their credibility, he had reviewed the evidence of those witnesses comprehensively in the context of the evidence as a whole. We are satisfied that the judge’s summing up was well balanced and certainly not biased against Lai.  In the result, we are satisfied that there is no merit in any of the grounds advanced by Lai Chun Man.  Accordingly, we refuse his application for leave to appeal against conviction.

[1] HKSAR v Au Yeung Chun Yee (CACC 438/2014; unreported, 15 July 2016).

[2] R v Jogee; Ruddock v The Queen [2016] 2 WLR 681.

[3] HKSAR v Chan Kam Shing (FACC 5/2016; unreported, 16 December 2016).

[4] Appeal Bundle; page 63 D; Admitted Facts, paragraph 16.

[5] Appeal Bundle; page 25, D.O.B. 3 September 1991.

[6] Appeal Bundle; page 26, D.O.B. 7 September 1984.

[7] Appeal Bundle; page 26, D.O.B. 11 September 1978.

[8] The 5^th defendant on the original indictment and described as PW14 at trial.  Appeal Bundle; page 26, D.O.B. 4 September 1995.

[9] Described as PW4 at trial.  Appeal Bundle; page 26, D.O.B. 1 November 1995.

[10] Described as PW5 at trial.  Appeal Bundle; page 26, D.O.B. 5 November 1990.

[11] Appeal Bundle; pages 281-282, counter #s 605-611:     

“ A: Subsequently when he was almost on his last breath, Ah Nam asked me to throw him into the sea together.

Q: At that time what did he say to you directly?

A: He said, “Hey, Ah Kwan, come over to help (me).  Throw him into the sea together.”

Q: Mm.  All right.  Then how did you people, er, throw him into the sea?  For instance ...

A: It was like this.  I carried (his) leg and threw him into the sea.

Q: Well, who carried his, er, er, upper body?

A: Ah Nam.”

[12] Appeal Bundle; page 1166, counter #s 490-1

“ Q: Well, did Ah Nam mention why Ah Ming had to be thrown into the sea?

A: He said (he) feared that Ah Ming would report to the police and all of us would be (in trouble) then.  [A: Yes.]  So, he got to throw Ah Ming into the sea lest, er, (we) would have trouble in future.”

[13] Appeal Bundle; page 1161, counter # 426

“ A: Afterwards, I said to Ah Nam, “Enough, stop, don’t hit (him) anymore.”  [A: Mm.] Afterwards, Ah Nam said, “Stop hitting?  Throw him into the sea.”  [A: Yes.]  Afterwards, I said, “Let him [sic].”  [A: Yes.]  Ah... but Ah Nam ignored, [A: Yes.] Afterwards, he (told), Lat Chiu and Ah Kwan, “Er, let’s take Ah Ming to the rocky beach on that side.”  

Q: Which was rocky beach “the rocky beach on that side” refers to?

A: That side of Lohas Park.”

[14] Appeal Bundle; page 1162, counter#s 434-6. Also, see the second video recorded interview-Appeal Bundle; page 1552, counter #s 194-5; page 1614, counter #s 835-844.

[15] Appeal Bundle, page 2263 O-Q :

“ A. At that time Kelvin said to Lee Ka Yiu “Your husband has killed someone.”

Q. Yes and what was Sukee’s response?

A. She said, “That young bloke?” 

[16] Appeal Bundle, page 189: On arrest and caution, Shek said:“On that day, it was Kelvin who beat Ah Ming first. Afterwards, Ah Nam and I flung Ah Ming into the sea.  I know (I) was wrong, I didn’t want him to die.”

[17] Appeal Bundle: page 480, counters 2018-2021:

“ Q:  Mm.  After Tsang Ming Sze had been (thrown) into the sea, did you think (his) life could be saved or not?

A: I thought his life could be saved.

Q: Why?

A: As he - - a-as far as I know, his life could still be saved, I t-thought, [C : Mm] he wouldn’t die instantly because he could swim."

[18] R v. Nedrick, [1986] 3 All ER 1 at pages 3D and 4B.

[19] Chan Wing Siu v The Queen [1985] AC 168.

[20] See Appeal Bundle, page 80 O-81 Q; and 82 E-M.

[21] HKSAR v Chan Kam Shing, paragraph 98.

[22] Appeal Bundle; pages 206-207, counter # 76:

“I now make f-further, er, enquiry of you about the murder case in which the deceased was TSANG Ming-sze. Earlier, I declared arrest on you.  At that time you said to me (, I) understand.  It was Kelvin who beat Ming-sze that day.  Later, I and Ah Nam (transliteration) threw Ah Ming (transliteration) into the sea.  I know (I) was wrong.  I, I didn’t want him to die.” [Italics added.]

[23] Appeal Bundle, page 1902 A-B.

[24] Appeal Bundle, page1902 D-H.

[25] Appeal Bundle, page 1913 Q-S.

[26] Appeal Bundle, page 1914 B-E.

[27] Appeal Bundle, page 1994 R-T.

[28] Appeal Bundle, page 1995 G-O.

[29] Appeal Bundle, page 2009 E.

[30] Appeal Bundle, page 165 M-R.

[31] Appeal Bundle, page 166 B-F.

[32] Appeal Bundle, page 166 J-L.

[33] Appeal Bundle, page 170 Q.

[34] Appeal Bundle, page 171 S-U.

[35] Appeal Bundle, page 176 B-E.

[36] Appeal Bundle, page 183 M -184 E.

[37] Appeal Bundle, page 82 E-M.

[38] Appeal Bundle, page 184 E-M.

[39] Appeal Bundle, page 80 H-I.

[40] Appeal Bundle, page 80 I-M.

[41] Appeal Bundle, page 80 M-P.

[42] Appeal Bundle, pages 80 Q - 81 E.

[43] Appeal Bundle, page 81 F-I.

[44] Appeal Bundle, page 81 M-Q.

[45] R v Moloney [1985] AC 905.

[46] R v Hancock [1986] AC 455.

[47] R v Nedrick, page 3 c-e.

[48] R v Nedrick, page 3 e-f.

[49] R v Nedrick, page 4 b-c.

[50] Appeal Bundle, page 82 I-L.

[51] Appeal Bundle, page 171 S-U.

[52] R v Nedrick, page 3 c-d.

[53] R v Moloney,page926 A-D.

[54] HKSAR v Lee Kwan Kong & Ors [ 2006] 2 HKC 111.

[55] R v Woollin [1999] 1 AC 82.

[56] HKSAR v Lee Kwan Kong & Ors, paragraph 45.

[57] HKSAR v Lee Kwan Kong & Ors, paragraphs 47-8.

[58] Lam Kwong Kong & Another v HKSAR (FAMC 7 & 8 of 2006; unreported, 26 April 2006.)

[59] Appeal Bundle, page 74 C-G.

[60] Appeal Bundle, page 74 G-R.

[61] Appeal Bundle: pages 219-220, counter #s 161-165.

[62] Appeal Bundle, page 152 H-R.

[63] Appeal Bundle, page 56 A-I.

[64] Appeal Bundle, page 56 M-O.

[65] Appeal Bundle, page 57 A-E.

[66] Appeal Bundle, page 57 G-O.

[67] Appeal Bundle, page 73 K-T.

[68] Appeal Bundle, page 48 T-49 C.

[69] Appeal Bundle, page 127 B-F.

[70] Appeal Bundle, page 127 F-O.

[71] Appeal Bundle, page 127 P-R.

[72] Appeal Bundle, page 141 K-R.

[73] Appeal Bundle, page 141T-U.

[74] Appeal Bundle, page 142 D.

[75] Appeal Bundle, page 131 D-E.

[76] Appeal Bundle, page 137 J-N.

[77] Appeal Bundle, page 146 R.

[78] Appeal Bundle, page 155 I-K.