SZE KWAN LUNG AND OTHERS v. HKSAR

FACC Nos 5 & 6 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS 5 & 6 OF 2004 (CRIMINAL)

(ON APPEAL FROM CACC NO. 92 OF 2002)

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J U D G M E N T

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Mr Justice Bokhary PJ:

Introduction

1. The result of this appeal turns on a misdirection on the proper approach to defence evidence in a criminal trial.  But having regard to certain statements in the judgments delivered below, it is also necessary, lest there otherwise be a misapprehension thereon, to address certain points on the law of homicide and of joint enterprise. 

2. As is notorious, a fire occurred at Immigration Tower in Wanchai on the afternoon of 2 August 2000.  A lot of property was damaged in that fire.  What is far worse, many persons were injured.  Tragically two of them lost their lives when, nine days later in hospital, they succumbed to their injuries. 

3. What happened on 2 August 2000 was as follows.  A number of persons originally from the Mainland went to the Immigration Service’s headquarters at Immigration Tower to press their claims to the right of abode in Hong Kong.  They arrived at that building between about 12 noon and 2.00 pm.  Some arrived alone.  Others arrived in batches.  All sought ¾ unsuccessfully ¾ to see the then Director of Immigration.  By about 4.30 pm some of the abode claimants had left.  But 23 of them remained to continue their protest.  These protesters were all in Room 1301.  From about 4.30 pm onwards the Immigration Service openly video-recorded events in that room.  The Police did the same from about 5.50 p.m. onwards.  What occurred there, including the outbreak of the fire and its aftermath, is therefore attested not only by eye-witness accounts and scientific evidence but also by those harrowing recordings.

4. Some of the protesters had lighters and bottles containing liquid.  Shortly before 6.00 pm members of the Immigration Service entered Room 1301 to evict the protesters.  They began with the 1^st appellant.  Although the position is not entirely clear, it would appear that he was actually outside the room when the fire broke out almost immediately afterwards.  The 1^st appellant is described in his own printed case as “the most vocal of the protesters”.  And the evidence is that the things which he said to members of the Immigration Service that afternoon include the following utterances made by him in the corridor outside Room 1301 between about 5.30 and 5.45 pm:

“Today, next year will be the anniversary of your death.”

“You people are not lucky.  Today you will become roast pig.”

“Ah Sir, it’s you people again.  You people are unlucky, hugging together and die.  Today next year will be the anniversary of the death of you people and I.”

“You people will die for sure.”

There is however no evidence that these utterances were heard, or even meant to be heard, by the protesters inside Room 1301.

5. As the 1^st appellant was being evicted some of the other protesters splashed liquid from the bottles which they were holding.  Almost immediately a fireball erupted in Room 1301.  And one of the protesters, Mr Lam Siu-sing, was engulfed in flames.  He was one of the persons who died as a result of the fire.  The other was a member of the Immigration Service, Mr Leung Kam-keung, whose death was heroic as well as tragic. 

6. After the fire Room 1301 was examined by forensic scientists who gave evidence to the following effect.  Traces of toluene, a major constituent in the highly inflammable and volatile liquid commonly called thinners, were found on several items taken from various parts of the room.  Patches of burning, known as “pool burns”, were present.  The amount of thinners required to produce these patches ranges from one litre to two litres.  Five lighters and seven bottles were found in Room 1301 after the fire.  One of the bottles was found to contain water.

7. The irresistible inference upon the whole of the evidence is that the fire broke out because thinners splashed by one or more of the 23 protesters were ignited by one or more of them with a lighter or lighters.  No one has suggested any other conceivably reasonable inference.

Charges

8. Charges were brought against each of the 22 protesters who survived.  Seven of them, being the seven appellants now before us, were each charged (i) with murdering Mr Lam, (ii) with murdering Mr Leung and (iii) with committing arson.  They were tried before Gall J and a jury.  Their trial took place before that of the other 15 surviving protesters who were tried before Suffiad J and each faced two counts, namely (i) manslaughter arising out of the death of Mr Leung and (ii) arson. 

9. The prosecution’s case against the seven protesters who are now appellants before us ¾ which case was disputed by the defence ¾ was that the three offences charged had been committed by those seven protesters acting in the course of a joint enterprise to stage a violent protest by starting a fire with intent to kill or at least cause really serious injury.  Mr Lam and each of the 2^nd to 7^th appellants were each holding a bottle.  The 2^nd and 3^rd appellants each said that he was aware that his bottle contained thinners.  But the 4^th, 5^th and 6^th appellants each said that his bottle contained water.  As was their right, the 1^st and 7^th appellants chose not to give evidence.  They relied on the evidence given by their co-accused.  Shortly stated the evidence given by the 2^nd to 6^th appellants was to the effect that none of the protesters meant to harm anyone.  The most that any of them admitted was that the protesters wished to make the Immigration Service believe that they were prepared to set themselves on fire if any attempt was made to evict them from Room 1301. 

10. In regard to the death of Mr Lam, the prosecution’s case was of course based on the principle of “transferred malice”.  This is the principle as to which it is said in Archbold Hong Kong 2004 at p.940, para. 16-16 that “[i]t is well established that if a man by mistake, or, eg by bad aim, causes injury to a person or property other than the person or property which he intended to attack, he is guilty of a crime of the same degree as if he had achieved his object”. 

Verdicts

11. On each murder count, the 1^st appellant was convicted of murder as charged while the other six appellants were convicted of the lesser homicide of manslaughter.  All seven appellants were convicted of arson.  Only one of the 15 protesters tried before Suffiad J was convicted of any offence at all, and that was only of arson.  It is suggested on the appellants’ behalf that the difference between the results of the two trials can be accounted for at least in part by the availability at the later trial of a digitally-enhanced recording of what the protesters said before the outbreak of the fire.  This recording revealed a number of utterances not captured by the analogue sound recording used at the first trial.  These utterances include:

“Get the lighter, do not ignite …”

“Just hold it will be alright, do not ignite, open the cap, let the smell spread out of … ”

“We should not take action first, open the cap …”

“Pour it out, do not ignite, let the smell spread out …”

In the Court of Appeal

12. The Court of Appeal (Stuart-Moore VP and Stock and Yeung JJA) were unanimous in quashing the 1^st appellant’s murder convictions.  But they were otherwise divided.  On the murder counts, the majority (consisting of Stuart-Moore VP and Yeung JA) substituted manslaughter convictions against the 1^st appellant.  And they affirmed all the other convictions in which the trial had resulted.  Dissenting, Stock JA was not prepared to substitute or affirm any conviction.  He favoured a retrial of all the appellants on two counts of manslaughter and one of arson.

13. In substituting manslaughter convictions against the 1^st appellant, the majority invoked s.83A of the Criminal Procedure Ordinance, Cap. 221, which reads:

“            (1)            This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

(2)            The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorized by law for the other offence, not being a sentence of greater severity.”

The majority took the view that the jury must have been satisfied of facts which proved the 1^st appellant guilty of manslaughter under the murder counts.  Further they took the view that, save in regard to murder, the trial judge’s directions to the jury contained no fatal flaw.  And finally they took the view that the digitally-enhanced recording received as fresh evidence on appeal did not add materially to the evidence at the trial.  That, shortly stated, is why the majority decided as they did.

14. Why Stock JA dissented as he did can also be stated with brevity.  He felt driven to the conclusion that there were fatal flaws in Gall J’s directions to the jury on (i) the proper approach to defence evidence, (ii) the definition of manslaughter and (iii) joint enterprise.  The directions on joint enterprise which troubled him pertain to the 1^st appellant only.  But the other directions which troubled him pertain to all the appellants.  Additionally, he did not regard any conviction as safe when the jury did not have the benefit of the digitally-enhanced recording.  Having noted all of that, I should mention that the Court of Appeal were unanimous in acknowledging the great efforts which Gall J made to give the persons in the dock a fair trial in this far from easy case.  This is a tribute to Gall J in which I respectfully join.

15. Essentially each appellant asks us to do as Stock JA favoured doing, although Mr Gerard McCoy SC for the 1^st appellant did not deny himself the observation that it was open to us to quash his client’s convictions without ordering a retrial.  The respondent asks us to do as the majority did.

Conviction of a participant for murder even though the actual killer is not so convicted

16. So that there be no misapprehension as to the true state of the relevant law, it is necessary to deal with the reasons which the Court of Appeal gave for quashing the 1^st appellant’s murder convictions.

17. As Stuart-Moore VP noted, Mr McCoy had submitted to the Court of Appeal “that the jury’s guilty verdicts on the murder counts against [the 1^st appellant] alone were inconsistent with the prosecution’s case of joint enterprise and inconsistent with the manslaughter verdicts returned against all the others with whom [the 1^st appellant] was indicted”.  Stuart-Moore VP, with whom Yeung JA agreed, said that Gall J should have told the jury “that if those who played a principal role in the events were all acquitted of murder, any secondary parties to the killing would inevitably also have to be acquitted”.  And Stuart-Moore VP went on to say that “[t]he acquittals for murder of the other Appellants meant that [the 1^st appellant’s] participation, in the form of the encouragement he may have lent by his actions and presence in the room, was limited, at most, to manslaughter on which all the others were convicted”.

18. Stock JA shared this line of reasoning, saying that “if the principal actors … did not intend to kill or cause grievous bodily harm, then those who encouraged or assisted the principals, whatever intention those secondary participants may have nursed, could not be guilty of murder”.

19. The Court of Appeal appears to have misapprehended the basis of the prosecution’s case and the defence submission in this context.  The case was throughout fought on the basis of the doctrine of joint enterprise.  However, the Court of Appeal’s reasoning was appropriate only to a conviction based upon the common law principles of accessorial liability whereby the person charged with aiding, abetting, counselling or procuring an offence can only be convicted if the principal offender, charged at the same trial, is found guilty of the relevant principal offence.  As further discussed below, a participant in a joint enterprise can be convicted of murder even though the actual killer is acquitted outright or convicted of the lesser offence of manslaughter only. 

20. One of the certified questions before the House of Lords in R v. Howe [1987] 1 AC 417 was: “Can one who incites or procures by duress another to kill or be a party to a killing be convicted of murder if that other is acquitted by reason of duress?”  Their Lordships were unanimous in answering this question in the affirmative.  Lord Mackay said (at p.458 C-D) that “where a person has been killed and that result is the result intended by another participant, the mere fact that the actual killer may be convicted only of the reduced charge of manslaughter for some reason special to himself does not, in my opinion in any way, result in a compulsory reduction for the other participant”.

21. In Osland v. R (1998) 197 CLR 316 Mrs Osland and her son were jointly charged with the murder of her husband who was the son’s step-father.  The prosecution’s case was that they had entered into a plan to murder the deceased.  It was not in dispute that Mrs Osland had mixed sedatives into the deceased’s dinner and that the deceased was killed as the result of a blow struck by the son in Mrs Osland’s presence while the deceased was asleep.  Each accused relied on self-defence and provocation.  The jury convicted Mrs Osland of murder.  But they were unable to reach a verdict in respect of the son (who was acquitted when tried again).  The High Court of Australia (McHugh, Kirby and Callinan JJ, Gaudron and Gummow JJ dissenting) held that the conviction of Mrs Osland for murder was not inconsistent with the jury’s failure to reach a verdict in respect of the son.  At p.344 McHugh J cited the passage from Lord Mackay’s speech in Howe’s case referred to above, and said:

“This statement is conclusive in England, at all events, in showing that it is the acts, and not the crime, of the actual perpetrator which are attributed to the person acting in concert.  If the latter person has the relevant mens rea, he or she is guilty of the principal offence because the actus reus is attributed to him or her by reason of the agreement and presence at the scene.  It is irrelevant that the actual perpetrator cannot be convicted of that crime because he or she has a defence such as lack of mens rea, self-defence, provocation, duress or insanity.”

22. In Hui Chi Ming v. R [1992] 1 AC 34, an appeal from Hong Kong, the Privy Council held that it was not an abuse of process to prosecute the appellant for murder as a participant in a joint enterprise even though the actual killer had earlier been convicted of manslaughter only. 

23. So the Court of Appeal gave the wrong reason for the course which they took of quashing the 1^st appellant’s murder convictions and refraining from ordering his retrial for murder.  But there does exist a good reason for taking that course.  This is that, approaching the case on the joint enterprise basis as presented by the prosecution and having regard to the absence of any relevant distinction between the 1^st appellant’s position and that of his co-accused, his convictions for murder were inconsistent with their convictions for manslaughter only.  Quite rightly, the respondent has never sought the reinstatement of the 1^st appellant’s murder convictions or his retrial for murder.

The proper approach to defence evidence

24. Dealing with the position when an accused gives evidence, Gall J told the jury:

“What he is doing is providing you with information which, when you look at it and then look at the prosecution evidence, without comparing them but looking at what you are sure is true, might assist you in finding doubts in the prosecution’s case.”  (Emphasis supplied.)

25. Stuart-Moore VP said this of that direction:

“            I have considerable doubt that a jury, hearing the passage about which particular complaint is made, would have understood what the judge was saying.  If they did so, I think it is just as likely, if not more so, that the impression created in their minds would have been that the jury could look at the defence evidence as information which might assist them in finding doubts in the prosecution’s case when looking at what they were sure was true in the case presented by the prosecution.”

26. The jury were being directed on how to approach defence evidence.  It was crucial that they receive a clear and accurate direction thereon.  Even if I shared Stuart-Moore VP’s view as to what the jury would have made of the direction given to them ¾ which I do not ¾ the true effect of what he says must be that there was non-direction on the proper approach to defence evidence.  As it happens however, it is plain that, as Stock JA thought, there was positive misdirection on this matter.  Such misdirection is not confined to the passage quoted above.  As Stock JA said, “in directing the jury as to its analytical task, the judge regularly exhorted the jury to reach its verdict based on such evidence as was established to be true, an analytical method to be adopted equally to defence evidence as to evidence adduced by the prosecutor”.  Stock JA demonstrated, by referring to the transcript, that Gall J had indeed so exhorted the jury.

27. In truth what Gall J told this jury is substantially the same as what he told the jury in HKSAR v. Wong Wai Man (No. 2) [2003] 4 HKC 517 when he said (as one sees at p.523A): “Any evidence from either the prosecution witnesses or the accused or the defence witnesses which you are not sure is true, you disregard for all purposes”.  This, as Ma CJHC said at p.523G when giving the judgment of the Court of Appeal (consisting of himself and, as coincidence would have it, Stuart-Moore VP and Yeung JA), “was not a proper direction”.  The Chief Judge cited the decision of the High Court of Australia in Liberato v. R (1985) 159 CLR 507.  As to the actual disposal of that application for special leave, Brennan J (later Brennan CJ) was in the minority of a 3:2 split.  But this is not to say that the majority disagreed with his statement at p.515 that “[t]he 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”.  Whether by one form of words or another and whether in one way or another, that message must be conveyed to the jury.

28. Having regard to the way in which the prosecution presented its case, the evidence given by the 2^nd to 6^th accused was of material assistance to the 1^st and 7^th appellants as well as themselves.  On each count, there was defence evidence on which each appellant could place reliance and in respect of which each of them was entitled to have the jury receive an accurate direction on the proper approach to defence evidence.  Contrary to accepted norms, no such direction was given.  The jury were misdirected on the matter.  And, in the circumstances, none of the convictions, whether resulting from the jury’s verdicts or from substitution by the majority in the Court of Appeal, can survive.  To avoid substantial and grave injustice, all the convictions must be quashed.

Definition of Manslaughter

29. It is therefore unnecessary for the purpose of disposing of this appeal to deal with the complaint made against the definition of manslaughter which Gall J gave to the jury.  Nor is it necessary to deal with it for the benefit of the retrial of this case or the trial of other cases.  Gall J had inadvertently omitted to include the element of danger when stating the elements of unlawful and dangerous act manslaughter.  And the only question is whether that mattered having regard to his direction to the jury, repeated in respect of each accused, that they could not convict any accused of any homicide unless he had poured and lit thinners or had been party to an agreement to do so.

30. Mr McCoy urges us to embark upon the question of whether unlawful and dangerous act manslaughter should no longer be understood in the sense explained by the House of Lords in DPP v. Newbury [1977] AC 500 (applying the decisions of the Court of Criminal Appeal in R v. Larkin (1942) 29 Cr. App. R. 18 and R v. Church [1966] 1 QB 59) but should now be understood instead in the sense explained by the majority in the High Court of Australia in Wilson v. R (1992) 174 CLR 313. 

31. The Newbury approach requires that the unlawful act was one which all sober and reasonable people will inevitably realise must subject the victim to at least the risk of some harm, albeit not serious harm.  This is to be contrasted with the Wilson approach which requires that the accused realised that the unlawful act exposed the victim to an appreciable risk of serious injury.  While there is something to be said for acceding to Mr McCoy’s invitation, it has to be borne in mind that judicial decisions on important issues are best made in the context of facts giving rise to a need to resolve them for the purposes of the case at hand.  And in this case as in many others, I doubt if the result would differ depending on whether one proceeds on the Newbury approach or the Wilson approach.  So I would postpone embarking upon this question at least until confronted with a case in which the difference between the two approaches is crucial to the result.

Joint enterprise

32. By reason of the fatal misdirection on the proper approach to defence evidence, the disposal of the present appeal does not require a decision on whether Gall J’s directions on joint enterprise were correct.  But something should be said about joint enterprise for the benefit of the retrial of the present case and the trial of other cases. 

33. “Joint enterprise” is an expression used to denote the conduct of two or more persons who take part together in a course of criminal conduct.  So many and varied are the circumstances in which the doctrine of joint enterprise operates that no single case can be expected to provide an occasion for discussing every aspect of the doctrine.  One such set of circumstances ¾ by no means uncommon in the experience of our courts ¾ is where multiple injuries are inflicted on a victim set upon by a group of assailants, many injuries are inflicted, only one injury proves fatal and the evidence does not show which assailant inflicted the fatal injury.  The circumstances of the present case are comparable since the prosecution is unable to say which particular person actually started the fire. 

34. While this is not the occasion for giving a definitive decision on the entirety of the doctrine of joint enterprise, it is my view, as indicated above, that the doctrine is distinct from the common law principles of aiding, abetting, counselling or procuring.  Each participant is criminally liable for all the acts done in pursuance of the joint enterprise.  And whether or not he intended it, he will be criminally liable for any such act if it was of a type which he foresaw as a possible incident of the execution of the joint enterprise and he participated in the joint enterprise with such foresight.  This may be traced at least as far back as Alderson B’s famous direction to the jury in Macklin and Murphy’s Case (1838) 2 Lewin 225 at p.226; 168 ER 1136.  And it is the effect of our law as it has been clearly understood at least since the decision of the Privy Council on appeal from Hong Kong in Chan Wing-siu v. R [1985] AC 168, which involved murder and wounding with intent.  I have particularly in mind what Sir Robin Cooke (as Lord Cooke of Thorndon then was) said at pp 175 G-H and 177B in the course of delivering their Lordships’ advice in that case. 

35. After examining the authorities in Australia and New Zealand as well as in England, Sir Robin Cooke said this (at pp 177G - 178B):

“            The test of mens rea here is subjective.  It is what the individual accused in fact contemplated that matters.  As in other cases where the state of a person’s mind has to be ascertained, this may be inferred from his conduct and any other evidence throwing light on what he foresaw at the material time, including of course any explanation that he gives in evidence or in a statement put in evidence by the prosecution.  It is no less elementary that all questions of weight are for the jury.  The prosecution must prove the necessary contemplation beyond reasonable doubt, although that may be done by inference as just mentioned.  If, at the end of the day and whether as a result of hearing evidence from the accused or for some other reason, the jury conclude that there is a reasonable possibility that the accused did not even contemplate the risk, he is in this type of case not guilty of murder or wounding with intent to cause serious bodily harm.”

Chan’s case was applied by the House of Lords in R v. Powell [1999] 1 AC 1.

36. Usually all the participants are present when the crime is committed.  But in Osland’s case McHugh J said at p.350 that “[w]here the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other’s acts and the case for doing so is even stronger when they are at the scene together.”  (Emphasis supplied).  That indicates that presence is not invariably essential.  Indeed, as the High Court of Australia pointed out in McAuliffe v. R (1995) 183 CLR 108 at p.114, their Honours had held in Johns v. R (1980) 143 CLR 108 that it is not necessary for a party to be present at the scene of a crime to be acting in pursuance of a common purpose with others who were present.  In their joint judgment in Osland’s case Gaudron and Gummow JJ said (at pp 329-330) that the reasoning in McAuliffe’s case “would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied.”

37. In regard to the 1st appellant, what Gall J said to the jury included this:

“If the 1st accused is to be found guilty of any of the offences on the indictment, it can only be because he was part of an agreement to commit those offences. You would have to find firstly that a joint enterprise existed and that at the time the fire started, he was a party to that agreement and that the actions taken were in accordance with what he agreed.”

Stock JA regarded that as a “material misdirection”, saying:

“It cannot be that if this appellant took no physical part and offered no encouragement and no advice and no instructions, that he is nonetheless guilty of the substantive offence, whether murder or manslaughter or arson, by mere reason of some prior agreement.”

It is common to speak of the participants in a joint enterprise assisting or encouraging each other.  But I respectfully agree with the statement in Smith & Hogan: Criminal Law, 10^th ed. (2002) at p.161 that

“… once a common purpose to commit the offence in question is proved, there is no need to look further for evidence of assisting and encouraging.  The act of combining to commit the offence satisfies these requirements.  Frequently it will be acts of encouragement which provide the evidence of the common purpose.”

Just because he had been evicted from Room 1301 immediately before the fire broke out, it does not mean that the 1^st appellant cannot be guilty of manslaughter or arson in the present case.  The preponderance of authority is to the effect that presence is not always necessary for criminal liability under the doctrine of joint enterprise.  And even if presence were necessary, the 1^st appellant can, in all the circumstances, be regarded as having been present.

Fresh evidence

38. There is no need to decide whether the fact that the digitally-enhanced recording was not available at the trial rendered the convictions unsafe.  That recording will of course be available at the retrial.

Retrial

39. It is plainly appropriate in all the circumstances that each appellant be retried on two counts of manslaughter and one count of arson.  As to the course of the retrial, I would observe that just because the prosecution did not seek to put forward a case of manslaughter by gross negligence at the original trial, it does not mean that they are precluded from doing so at the retrial.

Result

40. I would allow the appeal, quash all the convictions, order the retrial of all the appellants on two counts of manslaughter and one count of arson, and remand them in prison custody pending the retrial.

Mr Justice Chan PJ:

41. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ribeiro PJ:

42. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Litton NPJ:

43. I agree with the judgment of Mr Justice Bokhary PJ.

Sir Anthony Mason NPJ:

44. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ:

45. The Court unanimously allows the appeal, quashes all the convictions, orders the retrial of all the appellants on two counts of manslaughter and one count of arson, and remands them in prison custody pending the retrial.