HKSAR v. CHUNG YIU LAM

CACC 252/2018

[2020] HKCA 435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 252 OF 2018

(ON APPEAL FROM HCCC 36 OF 2018)

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REASONS FOR JUDGMENT

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1.  The applicant was charged with one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The charge alleged that on the 18^th September 2014, he, together with Madam Yeung Hoi Ting (“Yeung”), unlawfully trafficked in a dangerous drug, namely 4.86 kilogrammes of methamphetamine hydrochloride (“Ice”).

2.  He pleaded not guilty to the indictment and was tried before Yau J (“the judge”) and a jury[1].  He was convicted by the jury after trial and was sentenced by the judge to a total of 28 years and 9 months’ imprisonment.  Subsequently, he applied for leave to appeal his conviction. 

3.  At the hearing of the application, at which he was represented by Mr Phil Chau of counsel, who also appeared for him at trial, I granted the applicant leave to appeal his conviction and said I would later hand down my reasons for doing so.  These are my reasons.

The prosecution case

4.  On 18 September 2014, at about 8:40 am, a team of police officers were mounting an anti-narcotics operation in Mong Kok.  They observed the applicant to be acting suspiciously and they followed him on a taxi to Sheung Shui Railway Station.  There, they saw the applicant was joined by Yeung, who was at that time carrying a rucksack over her chest in the front and a bag slung on her right shoulder.  The bag on her right shoulder was covered in a design based on the children’s literature character “Paddington Bear” and these words are printed on it.  In this judgment I shall refer to this bag as the “Paddington Bear” bag. 

5.  As the applicant and Yeung were walking to the urban taxi-stand outside the railway station, they were chatting to each other and the applicant was observed giving Yeung a wad of money, subsequently discovered to be HK$20,000, which she then put into the outer compartment of her rucksack. 

6.  The applicant boarded the first urban taxi in the queue, sitting behind the driver, and told the driver to go to Mong Kok.  Yeung then put the Paddington Bear bag on the floor of the taxi in front of where the applicant was sitting.  The two continued chatting and as Yeung was about to move away from the taxi and the applicant was about to close the taxi door, the police rushed forward and stopped them from leaving. 

7.  Inside the Paddington Bear bag the police found a white plastic bag containing a black plastic bag, in which the four packets of Ice were found.  The total quantity of this Ice is the subject of the charge. The estimated value of the Ice was HK$1,993,920.  It was an admitted fact that only one fingerprint was found on the black plastic bag and it belonged to someone other than Yeung or the applicant. 

8.  At the time of his arrest the applicant had HK$9,281 cash and three mobile phones in his possession.  One of the mobile phones was registered in his name, with his HKID card and address stated on the registration documents.  The other two mobile phones were prepaid SIM cards and were not registered to any person.  It was an admitted fact that from 5^th September 2014, up to the time of their arrest, 38 calls had been made between the applicant’s personal phone and the Hong Kong and Mainland phone numbers used by Yeung.     

9.  It was also an admitted fact that Yeung had pleaded guilty to trafficking in the Ice in question in a separate hearing and had been sentenced to 18 years and 10 months’ imprisonment[2].  Also admitted were her previous drug-related criminal convictions, namely trafficking in dangerous drugs in 2011 for which she was sentenced to 30 months’ imprisonment, and in 2014 she was convicted of drug possession for which she was sent to DATC. 

10.  In his video record of interview, the admissibility of which was not challenged, the applicant refused to answer many of the questions that were asked of him.  In respect of those he did answer he denied knowing Yeung at all, he denied knowledge of the Ice in the Paddington Bear bag and did he know why Yeung gave him this bag; he had no explanation for the HK$20,000 in Yeung’s rucksack and did not want to talk about it and he denied knowing the phone numbers of Yeung and provided no explanation for the phone calls made between them shortly before his arrest.  When shown the Ice, he said he had no explanation for it.

11.  The prosecution case was a very simple and straightforward one.  The applicant and Yeung were portrayed as participants in a joint enterprise crime in which Yeung was the cross-border drug courier and the applicant was her handler. The applicant went to meet her after she had completed a cross-border smuggling trip in order to pay her for the trip and to take delivery of the drugs from her.   

The defence case

12.  The applicant elected to give evidence but did not call any witness.  He testified that he and Yeung were lovers and had been having an intimate relationship for about eight months at the time of the offence.  He said he would contact Yeung daily by phone.  He also said he was operating two unlicensed mah-jong establishments with two partners, from which he obtained a weekly commission of about HK$10,000. 

13.  He said in the morning on the day of his arrest, he received a call from Yeung who suggested meeting him after her return from Shenzhen.  He, therefore, went to Sheung Shui Railway Station to pick her up.  As soon as they met, he was told by Yeung that she might be pregnant with his baby.  They soon got into an argument about whether to keep the baby and the applicant suggested to Yeung to first have a body check to confirm whether she was pregnant.  He then led her to the urban taxi-stand to get a taxi to first go to her home at Tsiu Keng Village, which was only 5 to 10 minutes away, to drop her belongings there before heading to Mong Kok for a body check.  They were arguing all the way to the urban taxi stand and he denied giving HK$20,000 cash to her. 

14.  Having boarded the urban taxi the applicant told the driver to go to Tsiu Keng Village first and then to Mong Kok.  Yeung then put the Paddington Bear bag on the right side of his right leg.  When she was about to get into the taxi, police officers rushed in and arrested them.  He did not know about the Ice in the Paddington Bear bag and did not touch the bag at all.

15.  He admitted in his evidence that he lied in his video record of interview about not knowing Yeung.  He said he did it out of anger and frustration towards Yeung for dragging him into the trouble.  He also admitted that he lied about being jobless because he knew it was illegal for him to operate unlicensed gambling establishments.  He added that the cash found on him was his commission and the two other phones found on him, which operated on prepaid sim cards, were used in connection with his gambling business. 

16.  The defence case was as straightforward as the prosecution case.  The applicant maintained that he and Yeung were lovers and that was the reason he was meeting her.  He had no knowledge of the drugs and did not pay her any money.  He was intending to accompany her to her residence where they would deposit her belongings prior to going to a medical clinic to test whether she was pregnant, as she suspected.

The judge’s summing-up

17.  However, the case became complicated when, in the course of directing the jury on the law in his summing-up, the judge introduced, for the first time, an alternate basis for conviction, namely the aiding and abetting limb of accessorial liability.  The judge introduced this limb by saying:

“ You will remember I have said I am going to deal with the situation where you come to the view that the defendant knew that there was dangerous drug in the bear bag but had no intention to exercise control or custody over the dangerous drug. That is to say, you come to a finding of facts that the defendant was only travelling with Madam Yeung in the same taxi to take Madam Yeung to her home to put down the things she was carrying and then to take her to Mong Kok for medical treatment knowing that the bear bag she was carrying contained dangerous drug. That is to say, if you come to a finding of facts that the defendant, despite knowing that there was dangerous drug inside the bear bag, he had no intention or he might not have any intention to take possession of the dangerous drug or to have possession of the dangerous drug together with Madam Yeung.”[3]

18.  From here, he went on to direct the jury on the law and this I will turn to later in this judgment.

19.  The judge’s comments took counsel by surprise and when the court resumed the next day both counselvoiced concerns about the need for this direction to be made and their opposition to it.  Nevertheless, the judge could not be dissuaded from pursuing the course on which he had embarked.

The applicant’s Perfected Grounds of Appeal

20.  Mr Chau, on behalf of the applicant, advanced 3 grounds of appeal against conviction. 

21.  In his first ground of appeal, he complained that the judge erred in not giving a “lies direction” when, he asserted, it was clearly required in the circumstances of this case.  At trial, the applicant admitted that he had not been truthful on a number of important matters in his video record of interview, such as his relationship with Yeung, the frequent contacts between them and his occupation.  Mr Chau submitted that the prosecution in its closing address had, in effect, invited the jury to speculate on why the applicant would lie about their relationship.  He relied on the italicised words in the following passage from the prosecutor’s closing address:

“In the police station in the interview that the defendant had with the police, you’ll recall that the defendant denied knowing Madam Yeung. You may think that maybe it’s not out of anger. He told you that he -- because he was angry, distressed, so he denied knowing Madam Yeung. You may think it’s maybe due to some other reason. Maybe they really are not that close. During his testimony you may observe that, in fact, he did not know a lot about Madam Yeung. He did not know what -- how she make a living. He did not know what she did in Shenzhen. So maybe really they are not that familiar with each other.”[4] (Emphasis added)

22.  Mr Chau argued that the judge failed to deal with this matter adequately or at all in the summing-up.  Furthermore, given the applicant’s denial of knowledge of the Ice in question, Mr Chau submitted that, without a proper “lies direction”, there was a real possibility that the jury might have misused the applicant’s lies as evidence probative of his guilt.   

23.  In his second ground of appeal, Mr Chau complained that the judge confused the jury by, on his own volition, giving them an alternative basis for convicting the applicant.  This basis was of aiding and abetting Yeung to unlawfully traffic in a dangerous drug and was predicated on the jury finding that the applicant, knowing that there were dangerous drugs in the Paddington Bear bag and appreciating a “real risk” that Yeung was trafficking in them, did acts which helped or encouraged Yeung to traffic in these dangerous drugswith the intention of helping or encouraging her to do so. 

24.  Mr Chau submitted that this was certainly not how the prosecution case was mounted, which was simply to invite the jury to find the applicant was a participant in a joint enterprise crime of unlawful trafficking in a dangerous drug and to infer from the circumstantial evidence that the applicant had knowledge of the Ice in the Paddington Bear bag.  Notwithstanding the concerns raised by both counseland their opposition to this direction, the judge maintained his view that there was a possibility that the jury might find facts that necessitated such a direction.  Mr Chau submitted that the judge’s uninvited direction amounted to a material misdirection. 

25.  In his third ground of appeal, Mr Chau complained that the judge erred in not giving an appropriate direction in regard to an answer the applicant gave in his video record of interview, when he was asked about his occupation. This answer, Mr Chau argued, would have been understood by the jury as an admission by the applicant that he had previously been incarcerated which they would then use as evidence of the applicant’s bad character.  As there was a real possibility that the jury would have used it adversely to the applicant, it was incumbent on the judge to remind the jury to ignore this answer as it could have no bearing on his guilt.

The respondent’s submissions

26.  Ms Hermina Ng appeared for the respondent and submitted that there was no merit in any of the applicant’s grounds of appeal.

27.  In reply to the first ground, she relied on HKSAR v Chan Boon Ning[5]and submitted that it is trite law that a “lies direction” is only necessary in the very limited circumstance where the prosecution invites the jury to use the lies as supportive of the prosecution case.  That was not the position here.  To the contrary, the prosecution in its closing address reminded the jury that disbelieving the applicant would not equate to finding him guilty. 

28.  Ms Ng accepted that it was incumbent on the judge to consider, in accordance with what was said by the Court of Final Appeal in Yuen Kwai Choi v HKSAR[6], whether there was a risk that the jury would engage in an impermissible line of reasoning that just because the applicant had lied on important matters, he was guilty of the charge.  She submitted such a risk was not present in this case.  

29.  In reply to the second ground, Ms Ng submitted that it was apparent from the discussion between the bench and counsel that the judge was of the view that, on the evidence in this case, the alternative basis of accessorial liability was open to the jury.  Ms Ng referred to HKSAR v Lim Wai Lung Patrick Christian and Ors[7]and argued that a judge is not bound by the way in which the prosecution presents its case; he is entitled to leave to the jury a basis different from the primary one put forward by the prosecution, as long as it is not unfair to do so.  In particular, Ms Ng relied on the Court of Final Appeal judgment in Hau Tung Ying & Anor v HKSAR[8] to support her argument that a judge has the power to direct the jury on an alternative basis, provided that such a verdict is open on the indictment and available on the evidence. 

30.  Ms Ng added, it was the applicant’s own evidence that they intended to first go to Yeung’s home to drop off her belongings before going to Mong Kok, and this provided the evidential basis for the judge’s view that it was open for the jury to consider whether the applicant’s actions or conduct in fact amounted to helping or encouraging Yeung to traffic.  In any event, Ms Ng submitted that the applicant suffered no prejudice as he had always denied knowledge of the Ice and the defence would not have run their case any differently. 

31.  In reply to the third ground, Ms Ng emphasised that the defence never requested that this answer to be removed from the video record of interview.  Nor was there any suggestion from the defence for a specific direction to be given in respect ofthe answer.  The answer was vague and made no mention of prison and the applicant’s previous imprisonment was never brought up in the course of his evidence, or in the closing submissions of both parties at all.  In these circumstances the judge was right not to specifically direct on this matter as it would only have highlighted to the jury the fact of the applicant’s previous imprisonment.

Discussion

32.  In respect of the first ground of appeal it is true that in his evidence-in-chief the applicant admitted that he had lied in his video record of interview about his relationship with Yeung, his knowledge of her mobile phone numbers and his occupation.  However, the prosecution never sought to advance their case by making use of his lies and only contended that the applicant’s explanations, whether in the video record of interview or in his evidence in court,were wholly incredible and should not be believed. 

33.  I am not persuaded that it is reasonably arguable that the passage in the prosecution closing on which Mr Chau relied had the prejudicial effect of inviting the jury to speculate on why the applicant liedand of using the fact that he lied in the video record of interview to strengthen the prosecution case.  All the prosecution was doing was inviting the jury to reject the applicant’s explanation in both his video record of interview and his evidence.  In Yuen Kwai Choi the Court of Final Appeal said of a lies direction:

“… where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient”[9].

The present case is such a case.  I do not find this ground reasonably arguable.

34.  In respect of the second ground of appeal there are three issues that are of concern to me.  The first issue is whether the judge’s direction on the mens rea for accessorial liability is correct. The second issue is whether there was evidence on which a reasonable jury properly directed could return a verdictof guilty on the basis of accessorial liability.  The third issue is whether the procedure adopted by the judge, by depriving the defence counsel of the opportunity of addressing accessorial liability in his closing address to the jury, rendered the trial of the applicant unfair.

35.  The judge’s directions to the jury an accessorial liability were as follows:

“ In this case you can only convict the defendant on such a finding of facts if you are sure about all the following matters:

(1) Madam Yeung was trafficking in the ‘Ice’ in question;

(2) The defendant contemplated or realised that there was a real risk that Madam Yeung was trafficking in a type of dangerous drug. It is not necessary to prove that the defendant contemplated or realised that there was a real risk that Madam Yeung was trafficking specifically in ‘Ice’. You will remember this is similar to the knowledge required in possession of dangerous drugs for the purpose of trafficking I have explained to you. So the prosecution need only to prove that the defendant contemplated or realised that there was a real risk that Madam Yeung was trafficking in a type of dangerous drug.

(3) The defendant did acts, no matter great or small, which helped or encouraged Madam Yeung in the trafficking;

(4) The defendant intended to do the acts which he knew to be capable of helping or encouraging Madam Yeung in the trafficking.

Help and encouragement are simple words and you must apply the ordinary meaning of the words in deciding whether there was conduct of the defendant which did help or encourage Madam Yeung.

You must bear in mind that there must be either aid or some conduct of the defendant which in fact helped or encouraged Madam Yeung in trafficking.

As for encouragement, it involved some form of transmission of encouragement by words or conduct. You must not simply equate knowing and voluntary presence or no intervention during commission of the offence with encouragement. You may like to know that even if you know that an offence or crime is going on and you take no action to intervene, you do not commit an offence. You have no obligation to intervene in the commission of a crime.

So if you are merely present in the scene of crime and you knew that the crime was going on and you took no action about it, then your mere presence there will not amount to any offence at all. But if you do any act to help or encourage the person to commit the crime or the offence, then you are guilty of the same offence. Of course, you have to consider the four matters I have just told you.”[10]

36.  My concern is in respect of the last of the four matters on which the judgedirected the jury.  The mens rea, as directed by the judge, is not an intention to assist the principal offender in the commission of the crime but, rather, an intention to do an act which he knows is capable of assisting the principal offender in the commission of the crime.

37.  In HKSAR v Chan Kam Shing[11] the Court of Final Appeal decided not to follow the decision of the UK Supreme Court in R v Jogee[12]in relation to the law of joint enterprise criminal liability.  In discussing the legal principles relating to accessorial liability, Ribeiro PJ, in giving a judgment with which other members of the court agreed, said: 

“10. A person who aids or abets the principal offence, sometimes referred to as an accessory at the fact (and in felony cases as the principal in the second degree), is one who is present and, by way of actus reus, renders assistance or encouragement to the principal in the commission of the offence. The aider and abettor must provide active assistance or encouragement by words or action. Mere presence at the scene may in some cases be evidence of encouragement, but in itself is not enough to constitute aiding and abetting.

11. The mens rea of aiding and abetting involves the accessory acting with knowledge of the essential matters constituting the offence and with the intention of assisting or encouraging the principal offender to do the things which constitute the offence.”[13] (Emphasis added)

This raises the question of what is meant by the words “with the intention of assisting”, but this was not relevant to the discussion of legal principles in Chan Kam Shing and so Ribeiro PJ did not elaborate further on the scope of this aspect of the mens rea.

38.  However, in Smith, Hogan, and Ormerod’s Criminal Law, 15^th edition at 6.4.2.1, the authors state:

“Intention thereby to assist

There is no judicial agreement on what the requirement of an intention to assist actually means and unfortunately there was no explicit consideration of this issue in Jogee.  It is clearly a requirement of intention, but must it be proved that D acted in order to assist P (direct intent); or is it sufficient to prove only that D knew his acts would be virtually certain to assist P (oblique intent)? It seems to be generally accepted that D’s knowledge that his act will assist is sufficient. The weight of authority certainly supports the view that it is not necessary to prove that D had as his purpose or desire to assist and if D had the (oblique) intention, it is no excuse that D’s motives in performing the act of assistance were unimpeachable.”

Two of the cases on which the authors rely for the proposition that “oblique intention” to assist will be sufficient are National Coal Board v Gamble[14]and Lynch v DPP for Northern Ireland[15].

39.  In National Coal Board v Gamble, it was held that the crime of aiding and abetting was committed on proof of a positive act of assistance voluntarily done, and a knowledge of the circumstances constituting the offence, the question of motive was irrelevant.

40.  In Lynch v DPP for Northern Ireland, the House of Lords held that when a person charged as an aider and abettor is shown to have intentionally done an act which assists in the commission of the murder with knowledge that the probable result of his act, combined with the acts of those whom he is assisting, will be the death or serious bodily injury of another it is not necessary to prove a specific intent in order to convict.

41.  What the judge did in the present case was to direct the jury in accordance with the oblique intent rather than the direct intent.  Whether this is correct appears not to have been decided in Hong Kong.

42.  I shall now turn to my concerns with the actus reus of the offence.  

43.  The judge’s directions on the evidence were as follows:

“ In this case there is no dispute that Madam Yeung committed the offence of trafficking in a dangerous drug, ie, the ‘Ice’ in question. You therefore have to consider whether the defendant, in travelling together with Madam Yeung on board of the taxi to take her home, to put down the things she was carrying, knowing there were dangerous drug in the bear bag and then taking Madam Yeung to Mong Kok to see a doctor, amounted to helping or encouraging Madam Yeung in committing the offence of trafficking in a dangerous drug. It is a matter for you to decide.

Of course, you have also to decide, as I explained to you as the second matter among the four matters, that the defendant contemplated or realised that there was a real risk that Madam Yeung was trafficking in a type of dangerous drug. You have to consider the evidence in its entirety to see if the prosecution can prove this beyond a reasonable doubt. If it is your finding that the prosecution has proved this matter beyond a reasonable doubt, then you are entitled to take this matter into account in deciding whether what the defendant did amounted to help or encourage Madam Yeung in trafficking of the dangerous drug.

Of course, in this connection, you have to consider the explanation of the defendant, if you so accept his explanation, that the purpose of the trip was to take Madam Yeung to Mong Kok to see a doctor to confirm if she was pregnant. So at the end of the day you have to consider the entirety of the evidence and, depending on your finding of facts, to determine this issue. If you are sure of all the four matters I have just mentioned, then you must find the defendant guilty of the offence. If you are not sure of any of these matters or any one of them, you must find the defendant not guilty.

So to make sure you are clear about this, I think I better repeat the four matters to you again. The four matters are, firstly, that Yeung was trafficking in dangerous drug and I think you all remember that there is no dispute about this matter. The second matter is the defendant contemplated or realised that there was a real risk that Madam Yeung was trafficking in a type of dangerous drug. The third matter is the defendant did acts, no matter great or small, which helped or encouraged Madam Yeung in the trafficking. Fourth matter, the defendant intended to do the acts which he knew to be capable of helping or encouraging Yeung in the trafficking. So all these matters must be fulfilled and must be proved beyond reasonable doubt by the prosecution.”[16] (Emphasis added)

44.  My concerns in respect of the actus reus are twofold.  My first concern is whether on the evidence the jury could properly convict.  The answer to this question will depend on identifying with some precision the actus reus on which jury’s verdict for this alternative form of criminal liability could be founded; that is, what was the actus reus and was it capable of assisting Yeung in her crime of unlawfully trafficking in a dangerous drug; and then applying to that actus reusthe correct legal principles in respect of the mens rea of the offence. 

45.  In the judge’s alternative scenario, the offence the applicant was assisting was the unlawful trafficking in a dangerous drug.  He was in the presence of the principal offender, his girlfriend Yeung, who was in possession of a dangerous drug.  On this alternate scenario the applicant would have had no intention to assist Yeung to traffic in dangerous drugs and he would not have been in joint possession of the drugs.  He would simply have known of their existence.  Other relevant findings of the jury would be that he intended to meet Yeung, to stay with her and to take her to a medical clinic for a pregnancy test after depositing her personal possessions, and the drugs, at her residence. 

46.  On this scenario the jury would be assumed to have found that the applicant knew his girlfriend was a drug trafficker and that she had in her possession a trafficable quantity of dangerous drug which she may need to first transport to her home and deposit there.  He intended that she do this so that she could then go with him to a medical clinic. 

47.  Based upon how the judge directed the jury, as set out in the italicised part of the summing-up quoted at [43], intending to accompany her to her home seems to be the actus reus that the judge had in mind, in that, presumably, the jury could, as a matter of law, and might, as a matter of fact, find that the applicant, by these acts, was assisting her to retain possession of the dangerous drug for her future supply of it to others.

48.  My first and main concern in respect of this actus reus is fundamental and goes to whether it could found a conviction based on principles of accessorial liability.  For the purpose of articulating my current concern I am assuming that the actus reus was as set out by me, based on the description by the judge in the italicised words quoted at [43] of this judgment.  The concern I have with all of the applicant’s actions as set out in that passage is that they represent actions he intended to do, not actions he had, in fact, done. Yet, accessorial liability requires that the principal offence be completed and that the conduct of the accessory, the actus reus of accessorial liability, assisted the principal offender in the commission of the offence.  The actus reus, or what the UK Supreme Court in R v Jogee called the conduct element of the offence, must be an act already committed, not an act intended to be committed.  The summary by Lord Hughes and Lord Toulson JJSC at page 397, [7]-[8] bears repeating:

“7. … accessory liability requires proof of a conduct element accompanied by the necessary mental element …

8. The requisite conduct element is that D2 has encouraged or assisted the commission of the offence by D1.”[17]

49.  In Chan Kam Shing Ribeiro PJ explained the basis of accessorial liability as follows:

“14. Under traditional accessorial rules, the secondary party’s liability is derivative. Only if it is proved that the principal offence has been committed (even if the identity of the principal is not known) can a person’s liability as an accessory to that offence be established. Otherwise the defendant may be guilty of an inchoate offence of conspiracy, incitement or attempt but not as an accessory.”[18]

50.  Here, the principal offence would be Yeung’s continuing possession of the dangerous drug in order to transport it to her home.  This is an offence that had not yet been committed and all the applicant’s actions related to that future offence. It was not being put that the actus reus was meeting her at Sheung Shui MTR station, escorting her to the taxi and boarding the taxi and that the completed offence was her continuing possession of the dangerous drug during this short period of time over this very limited distance.     

51.  On the assumption that this actus reus could found a verdict based on accessorial liability, my second concern in respect of it is whether the evidence passed the threshold for requiring a direction on an alternative basis of liability.  On this latter issue the comments by Ma CJ in HKSAR v Chau Yui Ming are apposite[19]. 

52.  My final concern is that the judge did not alert counsel that he was intending to give these directions and so they only had the opportunity to address him on them after they had been given.  From this it follows that neither counsel had the opportunity to address the jury on this alternative basis of criminal liability.  There can be no doubt that the procedure adopted by the judge was wrong and my concern here is the impact of the judge adopting a wrong procedure on the fairness of the trial. 

53.  The cumulative effect of all these various concerns that I have is that I am satisfied that it is reasonably arguable that the judge erred in giving the jury the directions he did on the alternate basis for conviction of accessorial liability.   

54.  In respect of the third ground of appeal,I notethat no application was made at trial by Mr Chau to redact the applicant’sanswer from his video record of interview.  I also note that the prosecutor never asked any questions in respect ofthat answer in his cross-examination or in the closing speech.  The answer is itself ambiguous.  In the circumstances the most prudent course would have been to not say anything.  This ground is not reasonably arguable. 

Disposition

55.  For these reasons I granted the applicantleave to appeal conviction but only in respect of his second Perfected Ground of Appeal.  

[1] This was a retrial.  The Court of Appeal judgment in respect of the applicant’s first trial can be found at [2018] 4 HKLRD 704.   

[2] Yeung testified for the prosecution in the applicant’s first trial and she was rewarded for so doing by the Court of Appeal who reduced her sentence to 17 years and 7 months’ imprisonment.  See HKSAR v Yeung Hoi Ting [2019] 3 HKLRD 516.  She did not testify in this retrial.

[3] Appeal Bundle, page 34E – L.

[4] Appeal Bundle, page 188H – L.

[5] CACC 571/2001, unreported, 24 February 2014.

[6] (2003) 6 HKCFAR 113

[7] CACC 86/2012, unreported, 24 February 2014.

[8] (2011) 14 HKCFAR 453

[9] (2003) 6 HKCFAR 113, 129 at [37].

[10] Appeal Bundle, pages 34P – 35R.

[11] (2016) 19 HKCFAR 640 at 649

[12] [2017] AC 387

[13] Whilst the Court of Final Appeal disapproved the UK Supreme Court decision in R v Jogee [2017] AC 387 that the doctrine of joint criminal enterprise should be abolished and replaced by traditional accessorial liability principles on “aiding, abetting, procuring and counselling”, R v Jogee provides a helpful and comprehensive overview of the traditional accessorial liability principles.

[14] [1959] 1 QB 11 

[15] [1975] AC 653

[16] Appeal Bundle, pages 35S – 37A.

[17]  [2017] AC 387, 397 at [7] – [8].

[18] (2016) 19 HKCFAR 640, 650.

[19] (2019) 22 HKCFAR 368, 386, at [32].