HKSAR v. FOK LAP YIN, IAN LEE CHRISTOFFER

FAMC No. 14 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 14 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV 291 OF 2014)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.  At the hearing, this application for leave to appeal was dismissed for the reasons which follow.

2.  The applicant was convicted of murdering his father and attempting to murder his mother.  He was initially indicted to be tried for those offences together with his school friend Chan Ming-tin (“Chan”).

3.  It was the prosecution case that the offences were committed by the applicant and Chan as a joint enterprise.  The applicant had recruited Chan to take part in the killing and they had together planned and carried out the attack on the applicant’s parents as they slept in their beds.  Chan’s recruitment by the applicant and the joint planning and execution of the attack were not disputed by the defence.  The applicant’s case was (i) that he had not or may not have formed the requisite intention to kill; (ii) that he was suffering from diminished responsibility; and (iii) that he had withdrawn from the joint enterprise.

4.  At the start of the trial, Chan pleaded guilty and the question of how that plea and how Chan’s absence from the trial should be dealt with before the jury was raised by the trial judge[1] with counsel on 18 and 19 August 2014.  Obviously having considered the position overnight, counsel then acting for the applicant,[2] stated that there was no objection to the trial proceeding on the basis of the un-amended indictment; that it was right and proper and indeed inevitable, that the jury should be informed of what had happened to Chan; and that counsel for the prosecution[3] could tell the jury in opening not only that Chan had pleaded guilty to the murder but also that the attempted murder charge would lie on the file.

5.  That was the course followed and in the summing up, Line J stated:

“You have heard that Chan Ming-tin pleaded guilty to the murder of Fok Lai-chi and that the charge of attempted murder of Irene was left on the file. Leaving a charge on the file simply means there is no adjudication upon it and that it could be proceeded with should circumstances ever warrant it. The fact that Chan Ming-tin pleaded guilty to murder does not mean that the defendant is or is more likely to be guilty or not guilty of murder. You are told of it so you do not spend your time worrying about what has happened to him and why he is not on trial. In the same way, the fact that Count 2 lies on the file against him is no evidence of guilt or lack of guilt in respect of the case of this defendant on Count 2. You are merely told of the matter to explain his absence from the dock.”

6.  In the Court of Appeal,[4] it was argued that it was a material irregularity to admit before the jury evidence that Chan had pleaded guilty to the murder, such evidence being irrelevant, inadmissible and highly prejudicial to the applicant and such prejudice not having been cured by the judge’s directions.  The Court of Appeal rejected that submission and dismissed the appeal.

7.  That argument was resurrected before the Appeal Committee, Mr Kevin B Egan, acting for the applicant, submitting that informing the jury of Chan’s plea of guilty to murder involved a departure from an “invariable” practice – which he elevated to a strict rule – whereby the jury are not told of a co-defendant’s plea of guilty at the trial of the accused unless the co-defendant is to give evidence at the trial.  This was therefore a case where, counsel submitted, it was reasonably arguable that departure from that established norm involved a substantial and grave injustice. 

8.  When asked whether there were any authorities supporting the existence of the alleged invariable practice or accepted norm, Mr Egan cited R v Kempster.[5] But that case did not support his submissions.  The issue there was very different.  The accused denied taking part in four robberies and one burglary with the defendants who had pleaded guilty and it was held that he had been deprived of a fair trial since adducing evidence of the guilty pleas was likely to have been used by the jury as evidence of such complicity without the accused having had the opportunity to cross-examine the co-defendants in question.

9.  In the present case, there is no dispute that the applicant and Chan had embarked on a joint criminal enterprise.   The role played by Chan in the murder and attempted murder was a central feature throughout the evidence, including in the applicant’s out-of-court statements and his testimony at the trial.  The applicant had recruited, planned and equipped Chan to mount together a murderous attack on the applicant’s parents. The evidence was that Chan had inflicted some 100 stab wounds on the applicant’s father while the applicant attacked his mother.  Chan’s role was thus central to the prosecution’s case on joint enterprise and it was part of the applicant’s defence that he had withdrawn from that joint enterprise. 

10.  There has quite properly been no suggestion of any incompetence on the part of defence counsel then instructed.  Given the pervasive role played by Chan, one can well understand that Mr Cahill had thought it preferable and inevitable had that the jury should be told the reason why Chan was not on trial before them.  There was no evidence as to why Mr Cahill had taken that decision, but as the Court of Appeal noted, citing the judgment of Macrae JA in HKSAR v Tsang Man Kit:[6]

“... the fact that counsel did or did not do or say something at trial for tactical or forensic reasons should not readily assist an appellant, simply because his new counsel on appeal thinks that things should have been done differently.”

11.  In our view, it is not reasonably arguable that because of disclosure to the jury of Chan’s plea of guilty, the trial was rendered unfair and that there has been a substantial and grave injustice.  We respectfully agree with the Court of Appeal’s view that Mr Cahill’s decision to consent to the jury being given that information lay well within the ambit of his discretion in representing the applicant at trial.[7]  It did not in the circumstances represent any departure from accepted norms relevant to the grant of leave to appeal.[8]