HKSAR v. CHAN MAN SUM, IVAN

CACC 273/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 273OF 2015

(ON APPEAL FROM HCCC NO. 428 OF 2014)

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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 applicant sought leave to appeal against his conviction, after trial by Deputy High Court Judge Stuart-Moore and a jury, on 19 August 2015 of the murder on 6 October 2011 of Ms Chun Ka Yee, contrary to Common Law.

2.  There was no dispute that Ms Chun had been the mistress of the applicant since they began an intimate sexual relationship in mid‑2008.  She lived in Flat 2, 21^st Floor, Block E, Amoy Gardens, 77 Ngau Tau Kok Road, Kowloon which premises had been purchased in her name in April 2009, but for the purchase of which the applicant had provided substantial sums of money.  Ms Chun and the applicant were each issued with “Main Door Access Cards” which afforded them access to the ground floor and podium level entrances and exits.  In about March 2011, the applicant’s wife Madam Cheung Yat Yee came to know of her husband’s affair with Ms Chun.  In July 2011, Madam Cheung initiated contact with Ms Chun by text messages and an exchange of messages ensued between them.

3.  Ms Chun was depicted in CCTV film at 4:15 p.m. on 5 October 2011 returning to her flat on the 21^st floor of Block E, Amoy Gardens.

The prosecution case

4.  It was the prosecution case that Ms Chun was not seen or heard from thereafter other than by her killer.  Ms Chun was not depicted in any of the CCTV recordings of Block E, Amoy Gardens in the period after her return to her flat on the afternoon of 5 October 2011 up to 12 October 2011.  The prosecution alleged that the applicant had killed Ms Chun after having gone to Ms Chun’s flat at 18:52 hours on 6 October 2011.

5.  The prosecution relied entirely on circumstantial evidence in alleging that the applicant had killed Ms Chun.  Having left the flat at 20:34 hours on 6 October 2011, the applicant had purchased various items including heavy duty household gloves, deodorizer, a vacuum storage bag and four rolls of 300 foot clingfilm, before returning to the flat at 20:56 hours.  At 22:11 hours that evening he left the flat.

6.  At 10:12 hours on 7 October 2011, the applicant arrived in his motorcar at Amoy Gardens.  He entered Block E at 10:18 hours, carrying a plastic bag.  At 10:44 hours he left Ms Chun’s flat wheeling a trolley on which was a check-patterned bag and made his way to his motorcar in which he exited Amoy Gardens at 10:50 hours.  Then, he drove his car to the car park of Tseung Kwan O Plaza, at which he arrived at 11:37 hours.  Having left that car park at 11:53 hours, he arrived home at Metro Town at 12:53 hours.

7.  It was the prosecution case that, having killed Ms Chun on the evening of 6 October 2011, the applicant had removed her body from the flat in the check-patterned bag on the morning of 7 October 2011 and somehow disposed of it having gone to Tseung Kwan O Plaza.

8.  On 9 October 2011, the applicant’s car was cleaned at a branch of the Car Company.  On the morning of 10 October 2011, the applicant returned to Ms Chun’s flat together with Mr Lo Chun Choi of Chuen Kee Decoration Works.  On that day and 11 October 2011, Mr Lo removed all the movable contents of the flat.

9.  The prosecution relied on the fact that there was no immigration record of Ms Chun leaving Hong Kong or of her family and friends having heard of her since 5 October 2011.  Her bank accounts were untouched since 4 October 2011.  There was no entry in the Occurrence Books maintained at Amoy Gardens of the fire exit security alarm system having been triggered by the use of a fire exit in the period 5 to 17 October 2011.

10.  The prosecution alleged that, insofar as Ms Chun’s mobile telephone had been used since 5 October 2011, it had been used by the applicant to cover up her disappearance.

Defence case 

11.  It was the defence case that the applicant did not kill Ms Chun.  She had managed to leave Block E without being seen.  He had treated her with considerable generosity.  She was suffering from severe depression and had a drinking problem after their affair had been discovered by his wife.  Ms Chun told the applicant that she did not want to stay at the flat anymore and was prepared to move out.  Of the prosecution allegation that Ms Chun had been killed in the premises, it was to be noted that no bloodstains had been found in the flat.  Perhaps, Ms Chun had merely chosen to disappear and then had committed suicide.

12.  The applicant testified that he went to see Ms Chun on 6 October 2011.  She said that she had started to move her possessions out of the flat.  He told her that he would take away his own belongings the next morning and that he would get somebody to clear the flat on 10 October 2011.  He started to pack up his own things.  Ms Chun began to cry and became emotional.  At her request he left the flat for a while, so that she could calm down.  So, he had gone shopping, buying items he needed to pack his own belongings and vacate the flat, including vacuum bag(s) for packing his clothing, clingwrap to wrap portraits of Ms Chun, deodorizerfor treating the smell of cigarettes and the gloves for cleaning utensils.  Then, he returned to the flat. 

13.  On 7 October 2011, on his arrival at the flat he found that all his belongings were on the floor of the flat.  He believed that Ms Chun was in the premises, but that she was drunk.  He did not check if that was the case.  Then, he took his belongings away in the check-patterned bag. To do so, he used a trolley, which he found inside the flat.  Having placed the bag in his car, ultimately he drove home, leaving the check-patterned bag in the car before going to his office.  On 9 October 2011, his wife took the car to be cleaned.

14.  The applicant testified that when he went to the flat on 10 October 2011 together with Mr Lo, in Ms Chun’s bedroom he found a love note, her Main Door Access Card and $100 note fashioned into the shape of a heart.  As a result, he believed that Ms Chun would not return to the flat and therefore he asked Mr Lo to remove everything in the flat except Ms Chun’s portraits.  He telephoned Ms Chun’s mobile telephone when he was back to his office to ask if she wanted her portraits back, but he could not get through to her.

15.  The defence pointed out that there were pieces of evidence which indicated that Ms Chun was alive after 6 October 2011.  Text messages had been sent from Ms Chun’s mobile telephone.  He and Ms Chun’s friends had received text messages from that telephone.  In his first witness statement Mr Law, the husband of Ms Chun’s friend Madam Tong Man Lin, told the police that he had received a telephone call from Ms Chun in mid-October 2011.

The grounds of appeal against conviction

16.  In the grounds of appeal against conviction advanced on behalf of the applicant, Mr McCoy SC submitted that, given that there was no corpus delecti and the prosecution case against the applicant was based solely on circumstantial evidence, the judge’s directions in respect of the drawing of inferences were wholly inadequate.  First, he failed to direct the jury that “an inference can only be drawn against the accused if it was the only inference that could be drawn”.  Secondly, the judge failed to properly direct the jury that, if there were competing inferences that could be drawn, then the inference that they were to draw was that in favour of the applicant.  Thirdly, the judge failed to make clear to the jury that if they were to draw an inference favourable to the applicant, such inference need only be one of the available inferences.  Finally, the judge failed to direct the jury that they must consider all of the evidence in determining the impact of the circumstantial evidence and such evidence should not be compartmentalised.

17.  In his oral submissions Mr McCoy acknowledged that the judge’s summing up was comprehensive, well-balanced and that it contextualised the fine issues involved.  The issue that was taken with the summing up was purely as to the direction in respect of the drawing of inferences.  He invited the Court to note that immediately preceding his directions in that respect, the judge had told the jury that “the law provides guidance as to how you can approach evidence and this is one of the very important pieces of guidance.”  In giving those directions the judge had not followed fully the Specimen Directions of the Judicial Institute.  Rather, the judge was “freewheeling”.  Whilst he acknowledged that to do so was not necessarily an irregularity, he submitted that the directions were fatally flawed in that the judge had failed to direct the jury that they were only able to draw an inference against the applicant if it was the only inference that could be drawn.

18.  Mr McCoy invited the Court to note the difference between the nub of the judge’s directions to the jury in respect of the drawing of inferences and Specimen Direction 21.3.  The judge directed the jury:^[1]

“ ...if you find that a certain fact has been proved so that you are sure about it, you are entitled to infer from that fact the existence of other facts…

If you are sure about a fact, you must be sure of it before you draw an inference which is adverse to the defendant.  If you are not sure, there are two equal possibilities, one balancing out the other, then under no circumstances must you draw an inference adverse to the defendant, because they cancel each other out.”

19.  Specimen Direction 21.3 states:

“ You are entitled to draw inferences - in other words, if you find certain facts proved, you are entitled to infer the existence of other facts. But you may only do so if that inference is the only reasonable inference to draw from the proved facts. So, if from a set of facts which you find proved there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference.” [Italics added.]

20.  Mr McCoy invited the Court to note that, in that part of his directions, the judge had omitted to direct the jury that they may only draw an inference from proved facts “if that inference is the only reasonable inference to draw” and, in particular, if “there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference”.  Further, the judge had introduced a novel consideration of “equal possibilities, one balancing out the other.”

21.  On the other hand, Mr McCoy acknowledged that immediately after the impugned direction, the judge had gone on to address the contrasting inferences which the parties respectively invited the jury to draw, identifying the methodology by which such an inference might be drawn.  It was then, but only then, that the judge made reference to the application of a test of “the only reasonable inference” to the drawing of inferences from proved facts.  So, the judge said that “…in light of Miss Chun’s total disappearance” the prosecution suggested to the jury that “the only reasonable inference you could possibly draw from what you have heard in this case” was that “it was her dead body that was being wheeled out of her flat in that large bag on a trolley.”  The judge said that by contrast “the defence invite you to say that although that might be one inference, it is not the only reasonable inference at all and that there is another perfectly reasonable inference that you might reasonably draw because, at that time, the defendant was clearing away his things.”

The respondent’s submissions

22.  In his submissions, Mr Martin Hui SC submitted that guidance was to be found in the judgment of Bokhary NPJ in the Court of Final Appeal in Nguyen Anh Nga v HKSAR ^[2] in respect of the appropriate directions to be given to a jury when the prosecution case depends wholly or in part on circumstantial evidence.  Whether the appropriate direction is a general direction on the proper approach to circumstantial evidence or a special direction on the drawing of inferences the directions must be tailored to the circumstances of the case.  Directions in respect of inferential reasoning are to be set out in the context of the evidence and the arguments thereon.^[3]

23.  Mr Hui submitted that the judge’s directions in respect of the drawing of inferences from proved facts had to be read in the context of the whole summing up.  The judge had given the jury the standard direction on the burden and standard of proof and a full direction on circumstantial evidence in accordance with the Specimen Directions.  Mr Hui conceded that the judge’s directions in respect of the special direction as to inferential reasoning was not a verbatim recitation of the Specimen Directions.  The judge did not direct the jury in respect of the drawing of inferences from facts, namely, “You may only draw that inference if it is the only reasonable inference to draw from the proved facts.”  Nevertheless, he submitted that the judge’s direction encompassed in substance all the essential elements of that special direction.  The direction was set in the context of the evidence and identified the essential elements, namely that the inference as to the existence of other facts could only be drawn from proved facts; that before the jury could draw an inference therefrom adverse to the defendant, they must be sure that was the inference to be drawn; and, in particular, if there were two equally possible inferences as to other facts to be drawn from proved facts, the one adverse to the defendant must not be drawn.  

24.  Also, he submitted that the judge’s special direction on the drawing of inferences from proved facts was to be understood in the context of his general direction on circumstantial evidence, namelythat the jury may not convict the defendant unless they were sure of his guilt.

25.  Of the second ground of appeal, Mr Hui submitted that the omitted additional direction that Mr McCoy contended for, namely that if there were competing inferences that could be drawn, then the inference to be drawn was that in favour of the applicant was not necessary.^[4]  What was necessary, which direction the judge did give, was that the jury must not draw an inference adverse to the defendant when two equally possible inferences could be drawn.

26.  Of the third ground of appeal, namely that the judge failed to direct the jury that they might draw an inference in favour of the applicant if it was one of a number of competing inferences which might be drawn, Mr Hui submitted that in the context of his other directions such direction was not necessary.^[5]  The judge had directed the jury that before they could convict the applicant they had to be sure that Ms Chun had died and that the applicant had killed her.  The judge directed the jury that “if the account given by the defendant and put forward by Mr Marash on his behalf, is, or it may be true, then you find the defendant not guilty.” ^[6]  Further, the judge directed the jury that even if they rejected the applicant’s evidence on important points in this case, “…that does not relieve the prosecution from proving its case on the evidence that they have called.  So you will be falling back on that to decide whether he is guilty.” ^[7]

27.  Of thefourth ground of appeal, namely that the jury must consider all the evidence in determining the impact of the circumstantial evidence, Mr Hui invited the Court to note that the judge had directed the jury:^[8]

“ As you know, there are many more circumstances than that and I covered some of them earlier on. But looking at all of the circumstances, not just those I have mentioned, you are entitled, as a jury, to draw inferences from the evidence that you have heard…”

28.  Finally, Mr Hui invited the Court to reject the contention made on behalf the applicant that a case based solely on circumstantial evidence can be “destroyed by the existence of any fact that was inconsistent with the inference of guilt…”  In doing so, he relied on the observations of Pollock CB in R v Exall & Ors ^[9] in which he said of circumstantial evidence that it was not to be considered as a chain, which would fall if one link broke.  Rather, “It is more likely the case of a rope comprised of several cords.  One strand of the cord might be insufficient to sustain the weight but three strands together might be quite of sufficient strength.”

A consideration of the submissions

The issues

29.  At an early stage in the summing up, the judge identified the central issue which the jury had to address:^[10]

“ The question that you are here really to decide is are we sure that the defendant murdered Miss Chun. That is the question and side issues will not help. Obviously, for that question to be answered in the positive, ‘yes’, you would have to be sure that Miss Chun is dead and not alive. Any doubt about that in the verdict is ‘not guilty’.”

Burden and standard of proof

30.  Then, the judge directed the jury as to the burden and standard of proof:^[11]

“ It is for the prosecution to prove the guilt of a defendant. Or to put that the other way round, it is never for a defendant to have to prove his innocence.”

31.  Earlier, in giving the jury an overview of the prosecution and defence cases, the judge had said:^[12]

“ …it is not for the defence to prove what has happened; it is for the prosecution to prove that the defendant has murdered Miss Chun.”

32.  Of the standard of proof, the judge directed the jury:^[13]

“ You have to be able to say that the prosecution has made you feel sure that the defendant is guilty. He might have done it; he equally might not have done it. So it is that very often the expression “sure beyond reasonable doubt” is the expression which most often covers the situation that you are in when you decide how do we decide if this has been proved. If you can say to yourselves, “I am sure beyond a reasonable doubt that this charge has been proved,” then you bring a verdict of ‘guilty’. Anything less will not do and the verdict would be ‘not guilty’.”

33.  At the conclusion of the prosecution case the judge amplified his directions in respect of the standard of proof:^[14]

“ You must be quite sure, if you are to convict in this case, that Miss Chun has died, and if you find, and you are sure of it, that she is dead, then equally, you will need to go on and ask yourselves whether you are sure that it was the defendant who killed her. If he might have done, that is not good enough.”

34.  Then, the judge gave the jury directions in respect of their approach to the applicant’s evidence:^[15]

“ …if the account given by the defendant and put forward by Mr Marash on his behalf, is, or it may be true, then you find the defendant not guilty.”

Circumstantial evidence and inferences

35.  Having told the jury that the prosecution had no direct evidence of the commission of the crime, the judge went on to tell them that the prosecution relied on circumstantial evidence, which he described very largely in the terms of Specimen Direction 21.2, namely:^[16]

“ …evidence of various circumstances relating to the crime and to the defendant which they say, when you take them all together, will lead to the sure conclusion that it was the defendant who committed the crime.

It is not necessary for the evidence to provide an answer to every single question raised in the case, and you may think indeed, as I said earlier, it would be a very unusual case in which you can say, “Well, we know everything we’d like to know”. There may be unanswered questions. But the evidence must, if you are to convict, lead you to the sure conclusion that the charge which the defendant faces is proved against him.

   Circumstantial evidence can be very powerful.  Indeed, it can be as powerful or even more powerful than direct evidence.”

36.  Of the need for care in approaching a consideration of the evidence, the judge said:

“ So as with all evidence and as counsel have encouraged you to do, you will need to consider carefully the evidence that you have been given, in particular whether the prosecution can rightly rely in proof of its case on the material it has given you in this trial, or whether, on the other hand, it reveals other circumstances which may be of sufficient reliability and strength to cast a doubt on the evidence the prosecution has brought before you, provided. And that is what the defence suggest. They say that it is not sufficient to say that the defendant is guilty of murder.”

37.  Next, the judge directed the jury not to speculate:^[17]

“ …you have to be careful to distinguish between arriving at a conclusion based on reliable circumstantial evidence rather than mere speculation. Speculating really is no more than guessing and guesswork can very often be wrong, and neither the prosecution nor the defence should do that. And of course, nor must you, nor must you.”

38.  Then, the judge summarised the circumstantial evidence in the context of the respective cases of the prosecution and the defence.  Of the evidence relied upon by the prosecution, the judge said:^[18]

“ …what is it that the prosecution actually point to? The circumstantial evidence really amounts to this: the complete absence of Miss Chun or evidence of Miss Chun leaving her flat after 5 October; not a sign on any CCTV picture of her leaving and yet, by the 10th, her flat was completely bare. So she did not go in the lift because the lift CCTV was working, and she is 21 floors up, and they say she has disappeared by a means which you have been able to actually watch on the CCTV. You could not see her body but it was inside the bag.

The prosecution say that the purchases are very significant, the purchases on 6 October which are discovered because of the use to pay for some of those items of the defendant’s Octopus card that he had on him when he was arrested in March - was it March or May the following year? April, April. So he still had that Octopus card and that led to the discovery of the receipts which led to the discovery of what he had been purchasing.

The visit on 7 October is obviously highly significant in the prosecution’s case. A very heavy bag which he could not carry so he put it on a trolley; the clearing of the flat, quickly, afterwards; the use of Miss Chun’s key to get into the flat after her disappearance; the messages left on Miss Chun’s phone - or rather, not messages but calls to her phone by the defendant followed by the sound of a mobile ringing almost as soon as he dialled her number, on three separate occasions; the defendant’s failure to report Miss Chun (missing?) until he was seen by the police - of course he knew about her disappearance then but he had never reported her disappearance before; the cover-up stories which the prosecution allege to keep people thinking that she was alive for a short while afterwards and had gone to the mainland, by messages sent from her mobile.

   There are quite a few other matters.  For example, there is the Immigration record which shows that she never left Hong Kong, certainly not legitimately, because otherwise it would be recorded in the Immigration records.  So they say that she has completed disappeared and they say you can see why she has completely disappeared.  She was wheeled out of that flat in a bag and disposed of.  That is the main circumstantial evidence that they rely upon.”

39.  Of the defence case, the judge said:^[19]

“ The defence, in reply to those allegations, say that you could not possibly be sure on the evidence that you have heard that she was murdered, let alone by the defendant, because they remind you that there is not a scrap of evidence that there was any violence leading to bloodshed in the flat. And that you can take as a fact because it is an admitted fact that the scientists have been over that flat and they have not found any blood whatsoever. There was no blood on the furniture left in Mr Lo’s warehouse, none at all.

The defence point out that the defendant and Miss Chun were going to go their separate ways and that Miss Chun was sad and unhappy, but that she had accepted the situation she was in and was ready to move out and to transfer the defendant’s name, according to the defendant, back in place of hers so that he would have the flat in his own name. So an arrangement had been reached. Indeed, when she left, she even left a note, according to the defendant, saying how much she loved him.

As you know, there are many more circumstances than that and I covered some of them earlier on.  But looking at all of the circumstances, not just those I have mentioned, you are entitled, as a jury, to draw inferences from the evidence that you have heard, and that is the next matter of law I need to deal with.”

40.  Clearly, the judge’s reference to the “many more circumstances” some of which he had “covered” earlier on, was to the overview of the prosecution and defence cases which the judge provided to the jury at the outset of the summing up.^[20]  There, the judge set out the defence case in considerable detail.^[21]  The judge reminded the jury that it was the defence case in respect of Ms Chun’s disappearance “that this disappearance had nothing at all to do with the defendant.  He certainly has not killed her.” ^[22]  Further, that it had been suggested by the defence that the “disappearance could have occurred in a number of ways.”  In that regard, the judge directed the jury that it was not for the defence to prove what has happened.  Rather, “…it is for the prosecution to prove that the defendant had murdered Miss Chun.” ^[23]  In respect of the use of Ms Chun’s mobile telephone after 5 October 2011, the judge reminded the jury that “the defence suggests it may well have been Miss Chun herself because there are reasons to believe that she may have been able to escape the building without being seen.” ^[24]  Of another suggested explanation made by the defence of her disappearance, the judge said “it is suggested that one possibility is that she has committed suicide.” ^[25]

41.  Of his directions in law in respect of the drawing of inferences, the judge said: ^[26]

“ It is said that the law provides guidance as to how you can approach evidence and this is one of the very important pieces of guidance. If you find that a certain fact has been proved so that you are sure about it, you are entitled to infer from that fact the existence of other facts. Actually, when you think about it, you do it all your lives. Inferences are drawn by us from certain facts and circumstances. So it is nothing new. But the rule in our courts here is if you are sure about a fact, you must be sure of it before you draw an inference which is adverse to the defendant. If you are not sure, there are two equal possibilities, one balancing out the other, then under no circumstances must you draw an inference adverse to the defendant, because they cancel each other out.” [Italics added.]

42.  The italicised parts of the fourth to fifth lines of the direction are taken verbatim directly from Specimen Direction 21.3.  However, as the parties agreed, the sentences which appear immediately thereafter in the Specimen Direction are omitted, namely:

“ But you may only do so if that inference is the only reasonable inference to draw from the proved facts. So, if from a set of facts which you find proved there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference.”

43.  At that point in his directions, the judge made no reference to the phrase “only reasonable inference”.  Rather, having reassured the jury that the drawing of inferences was an everyday matter, the judge went on to direct the jury “But the rule in our courts here is if you are sure about the fact, you must be sure of it before you draw an inference which is adverse to the defendant.”  That direction served to emphasise to the jury that, in a criminal trial, the law required the jury to be sure of primary facts before they drew an inference adverse to the defendant.

44.  Then, the judge concluded that part of his directions in respect of inferences by directing the jury:^[27]

“ If you are not sure, there are two equal possibilities, one balancing out the other, then under no circumstances must you draw an inference adverse to the defendant, because they cancel each other out.”

45.  Once again, that direction finds no place in the Specimen Direction.  In context, the words “If you are not sure” suggests that the judge was addressing the proof of primary facts.  On the other hand, the rest of the sentence suggests that the judge was addressing the resolution of competing inferences.  It is difficult to understand what sense, if any, the jury would have made of the sentence.  It is not to be assumed that the jury would have understood that they were being given guidance on how to resolve competing inferences.  But, even if the jury was to understand that the direction was how to resolve competing inferences, the direction did not convey to the jury the requirement that they be satisfied that an inference adverse to the defendant could only be drawn if it was the only reasonable inference to be drawn from the primary facts.  The direction addressed only “equal possibilities, one balancing out the other”.  The jury might conclude that they could draw an inference adverse to the defendant, so long as an inference favourable to the defendant was not an equal possibility.

46.  Then, having given those directions in law, the judge gave them factual context in respect of the cases of each of the parties.  Only then, did the judge refer to the phrase “only reasonable inference” in the context of drawing inferences adverse to the defendant.  But, he did so only in the context of reminding the jury of what he said were the submissions made by counsel as to their respective cases:^[28]

“ At the very heart of this case, the prosecution is inviting you to find, in the light of Miss Chun’s total disappearance, that it was her dead body that was being wheeled out of her flat in that large bag on a trolley. That is the inference they ask you to draw from all the circumstances that you have heard. They suggest to you that that is the only reasonable inference you could possibly draw from what you have heard in this case.

On the other hand, the defence invite you to say that although that might be one inference, it is not the only reasonable inference at all and that there is another perfectly reasonable inference that you might reasonably draw because, at that time, the defendant was clearing away his things.  He needed a bag to put them in.  And his purchase of those items in the shop was also understandable and very sensible.  He needed to clear the surfaces near the sink with gloves.  He had bought a vacuum bag to put his clothes in to keep them away from other items and the cling-film, of course, to stop things being scratched.  In fact, he even offered his help to Miss Chun who told him to get on with his own business and she would look after herself.  That is the effect of what he was saying.”  [Italics added.]

The scheme of those directions resonated with Specimen Direction 21.3.

47.  In his closing speech, Mr Luk SC for the prosecution, had submitted to the jury “…the actions of the defendant after the killing were only consistent with the inference that the defendant must have killed Miss Chun with intent to kill or to cause serious bodily harm”.  Having acknowledged “…this is a case depending on circumstantial evidence”, he concluded his submissions by saying to the jury:^[29]

“ …we say you can only come up with one and only one conclusion, and that is the defendant had murdered Miss Chun.” [Italics added.]

48.  Whilst Mr Luk had invited the jury to draw that inference, he had not described it as being the “only reasonable inference”.  Rather, he suggested that it was the “…only one conclusion.”  Of course, the judge’s description was a legitimate description of the effect of the submission made by the prosecution.

49.  Similarly, Mr Marash did not use the phrase “only reasonable inference” in his closing speech to the jury.  Rather, anticipating the direction that the judge would give the jury that they must be satisfied beyond reasonable doubt, satisfied so that they were sure, before they could return a verdict of guilty, Mr Marash addressed the jury in those terms at the outset ^[30] and the closing of his speech:^[31]

“ But you’re asked to convict the defendant beyond reasonable doubt, and I’ve said to you before: probably doesn’t do; possibly doesn’t do; beyond reasonable doubt, so that you’re sure he did it.”

50.  Finally, of the application of the law to the facts, the judge said:^[32]

“ So there you have the conflicting evidence. You have to decide what you think is accurate, reliable, true and can safely be taken into account before you decide whether any adverse inference to the defendant can be drawn. If it can, well, then it can. If it cannot, then you must not draw it against the defendant. So that is the rule on inferences.”

51.  In his judgment in the Court of Final Appeal in Tang Kwok Wah v HKSAR ^[33], Sir Anthony Mason NPJ said of the special direction in respect of inferences that it “…serves to emphasise and to elucidate the general requirement for proof beyond reasonable doubt in its application to circumstantial and inferential evidence.”  Sir Anthony Masonnoted that the special direction was described as “the customary direction” by the High Court of Australia in Plomp v The Queen ^[34], where the case was wholly circumstantial, and in Shepherd v the Queen ^[35].  In the latter case, Dawson J said that:^[36]

“The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances.”

52.  In his judgment, Bokhary PJ referred to the range of directions that different courts had approved in respect of the drawing of inferences adverse to the defendant from primary facts proved from circumstantial evidence:^[37] “the facts were such as to be inconsistent with any other rational conclusion”; “no other explanation than guilt is reasonably compatible with the circumstances”; “no other reasonable explanation”; “the only rational inference that the circumstances would enable them to draw”; “theinference must be compelling one (and the　only one) that no reasonable man could fail to draw from the direct facts proved.”

53.  Of those directions, Bokhary PJ said:^[38]  

“ …they go to the standard to which the prosecution must prove its case. 　They do not lay down how the jury must always be directed in order to make them understand how to apply that standard.”

54.  He went on to say that “one simple way” in which they might be directed appropriately in that respect:^[39]

“…would be to tell them, if they are directed on inferences, that no inference is to be drawn against the accused unless it is the only reasonable inference.”

55.  In light of that judicial observation, and in view of the fact that Specimen Direction 21.3 articulates that direction, it is rather surprising that the judge did not direct the jury in those very simple terms, referring in terms to the phrase “the only reasonable inference.” 　Given that the judge directed the jury in terms that resonated with other parts of Specimen Direction 21.3, it is difficult to understand why he omitted this part. 　The judge’s references to that phrase in the context of the closing speeches of the prosecution and the defence did not include the judicial endorsement that was the appropriate test to apply to the drawing of an inference adverse to the defendant from the primary facts. 　The judge’s statements in that regard are not to be regarded as his directions in law.

56.  No issue was taken with the judge’s directions as to the standard of proof, namely that before they could return a verdict of guilty the jury was required to be sure that the applicant had murdered the deceased.　 Relevant to that direction was the judge’s direction in respect of the approach to be taken to the applicant’s evidence, namely that “if the account given by the defendant…may be true, then you find the defendant not guilty.” 　Obviously, if the jury found that account “may be true”, they could not be sure of the applicant’s guilt.  Similarly, the judge directed the jury to be “…careful to distinguish between arriving at a conclusion based on reliable circumstantial evidence rather than mere speculation”, explaining that speculating was “no more than guessing and guesswork can very often be wrong.”

57.  Notwithstanding those directions, with respect, the judge failed to direct the jury accurately and adequately as to their approach to the drawing of inferences adverse to the defendant from primary facts, in particular that they were not to draw such an inference “unless it is the only reasonable inference.”  In all the circumstances, we are satisfied the judge’s directions were material mis-directions.

Proviso

58.  Although Mr Hui submitted that there was a strong circumstantial case against the applicant and invited us to apply the proviso, not surprisingly he was unable to refer the Court to any authority in which the proviso had been applied in face of a misdirection in respect of the drawing of inferences adverse to a defendant.  We are satisfied that there is no question of applying the proviso in this case.

Other grounds of appeal

59.  For the reasons advanced in the submissions of Mr Hui, we are satisfied that there is no merit in the other grounds of appeal advanced on behalf the applicant.

Conclusion

60.  Accordingly, we allow the application for leave to appeal against conviction and, treating the hearing of the application as the hearing of the appeal, we allow the appeal and quash the conviction.

Retrial

61.  Understandably, Mr McCoy did not oppose an order that the applicant be retried.  In the result, we order that the applicant be retried on a fresh indictment, which is to be filed with the Court within 14 days.  We direct that the case is to be fixed before the Listing judge for the fixing of hearing dates within 28 days hereof and that expedited dates be fixed for the hearing of the retrial.  There being no application for bail, the applicant is remanded in custody pending his retrial.