SECRETARY FOR JUSTICE v. SINGH HARWINDER

CACC 37/2026

[2026] HKCA 116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 37 OF 2026

(ON APPEAL FROM HCCC NO 299 OF 2024)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.  This is an application by the Secretary for Justice for leave to appeal against a ruling by Deputy High Court Judge Keith (“the judge”) of “no case to answer” on the charge of murder in respect of the 2^nd defendant in HCCC 299/2024, who is currently on trial before a jury in the High Court.

The appeal against the ruling of no case to answer

2.  Division 3 of Part IV of the Criminal Procedure Ordinance (Cap. 221) and the Criminal Procedure (Appeal against Ruling of No Case to Answer) Rules (Cap. 221M) create a self-contained procedure for prosecution appeals against a ruling of no case to answer (“specified ruling”), other than in non-jury national security trials (ss.81AAB, 81AAC(1)).  When the court rules that there is no case to answer on one or more offences in the course of a trial, the Secretary for Justice may, with leave, appeal to the Court of Appeal in relation to any such “subject offences” (s.81AAC(2)).

3.  As soon as practicable after the specified ruling is made, or after the expiry of any short adjournment to consider appealing, the Secretary must (i) inform the court of the intention to appeal, (ii) identify the subject offences, and (iii) give an “acquittal guarantee” in relation to the appeal (s.81AAC(3) and (4)).  If more time is required to decide whether to appeal, the Secretary may request an adjournment, which the court must grant until at least the next business day (s.81AAC(5) and (6)).  The acquittal guarantee, defined in s.81AAD, is an undertaking that the defendant will be acquitted of the subject offence if leave to appeal is refused or if the appeal is abandoned before determination; in either case the court or the Court of Appeal must order an acquittal (s.81AAD(2) and (3)).  Once an adjournment is requested to consider an appeal, the specified ruling has no effect during the adjournment, and once an intention to appeal is notified, the ruling and its consequences have no effect in relation to the subject offence until the appeal is determined or abandoned (s.81AAE(1)–(3)).  At the same time, when the intention to appeal is announced, the court must decide whether the appeal is to be expedited; if it is expedited, the court may adjourn the trial, and if not expedited, it may adjourn or discharge the jury, with the decision on expedition being capable of later reversal (s.81AAF(1)–(4)).

4.  For the purpose of making an appeal, the Secretary must, within 21 days of the specified ruling being made, serve a notice of appeal on the respondent (the defendant in respect of the subject offence) and on the Registrar (r.4(1)), with service on the respondent being treated as sufficient if the respondent cannot be found or is outside Hong Kong and all reasonable steps have been taken (r.4(2)).  Within that same 21-day period, the notice must identify the specified ruling and any other ruling appealed (r.4(3)(a)), state whether leave has already been granted, set out the grounds of appeal and the alleged error of law or principle together with the necessary facts, summarise the arguments and authorities, confirm that an acquittal guarantee has been given, and record whether the appeal has been expedited and any adjournment or jury discharge under s.81AAF (r.4(3)(a)–(i)).  If leave has not been granted by the court, the same notice also operates as an application to the Court of Appeal for leave (r.4(5)).

5.  The notice must invite the respondent to inform the Registrar whether he or she intends to present any argument, and whether this will be in person or by counsel, within a “specified period” of not less than 28 days from the date of service (r.5(1) and (2)).  The Court of Appeal may not hear argument on behalf of the Secretary until that minimum period has expired, unless the respondent consents to an earlier hearing or has indicated that no argument will be presented (r.5(3)).  The Secretary may withdraw or amend the notice of appeal at any time before the hearing of the appeal begins, and thereafter only with leave; withdrawal is treated as abandonment of the appeal, thereby engaging the acquittal guarantee and requiring an acquittal of the subject offence (r.6(1)–(3); ss.81AAD(2)(b), 81AAE(2)).

6.  The Court of Appeal may confirm, reverse or vary the ruling (s.81AAH(1)).  However, it may only reverse or vary it if it is satisfied that the ruling involved an error of law or of principle (s.81AAH(2)), and if it does it must order under s.81AAH(4) that (a) the proceedings of that offence be resumed in the court; (b) the defendant may be retried in the court for that offence; or (c) the defendant be acquitted of that offence.  The Court of Appeal may order an acquittal under s.81AAH(4)(c) if it considers that the defendant could not receive a fair trial were proceedings to be resumed or a retrial ordered under s.81AAH(4)(a) or (b) (s.81AAH(5)).  If the Court of Appeal confirms the specified ruling, it must order that the defendant be acquitted of that offence (s.81AAH(3)).

7.  We are of the view that the procedural timeframes should be amended to allow for prompt appellate intervention in an appeal against a ruling of no case to answer.  The 21-day period for the prosecution notice and the minimum 28-day period for the defence to decide whether to argue the matter could act to the detriment of the administration of justice by delaying resolution of the matter and possibly resulting in the discharge of the jury.  The equivalent legislation in England and Wales provides for a shorter process, which results in a more prompt resolution of the matter[1].

The background and outcome of the appeal

8.  The 2^nd defendant is one of four defendants charged with the murder of Fayzan Ali (“the deceased”).  The prosecution’s case is that the deceased was attacked in the early hours of 29 August 2022 in Jordan Road by a group of men in revenge for an attack on the 1^st defendant in the early hours of the previous day.  At least three of the defendants are alleged to have been among that group of men, it being common ground that four other men, believed to have been involved in the attack on the deceased, are still at large.  The deceased died as a result of stab wounds, and the prosecution’s case is that those stab wounds were inflicted by one of the men currently at large with a Gurkha knife which was recovered later in Hung Hom, but that the four defendants were all parties to the attack on the deceased. The prosecution further alleges that the 3^rd defendant arranged to meet the deceased, thereby setting him up for the attack, and that the 2^nd and 4^th defendants acted as drivers, conveying some of the assailants to the scene and facilitating their escape after the attack.  The admitted facts record that one of the men wanted by the police is known as “Alex” or “Gopi Sarpanch” (“Alex”), who used the knife on the deceased.  The 2^nd defendant conveyed Alex to and from the scene. 

9.  As noted by the judge, the CCTV footage shows that the attack on the deceased occurred in two phases. The first phase was outside a branch of the Bank of China in Jordan Road, next to a parked taxi and close to the junction of Jordan Road and Parkes Street, about 100 metres west of the junction of Jordan Road and Nathan Road.  In that phase of the attack, the deceased was struck and punched.  The second phase was by the railings in the middle of Jordan Road at the junction with Parkes Street. It was in the second phase of the attack that the deceased sustained the stab wounds from which he later died.

10.  At the close of the prosecution case, the 2^nd, 3^rd and 4^th defendants submitted that they had no case to answer.  After hearing submissions from the parties, the judge ruled on Friday, 23 January 2026, that the 2^nd defendant did not have a case to answer on the charge of murder or, in the alternative, manslaughter, while the 1^st, 3^rd and 4^th defendants did have a case to answer on the charge of murder.

11.  Immediately after the judge gave his ruling on Friday, 23 January 2026, prosecuting counsel stated that she had no application to make, but subsequently reserved her position pending instructions from the Prosecution Division of the Department of Justice. 

12.  On Monday, 26 January 2026, prosecuting counsel, on behalf of the Secretary for Justice, applied for leave to appeal the judge’s ruling, which the judge refused because the proposed appeal at that stage did not raise any issue of legal principle, but rather concerned the application of established legal principles to the particular facts of the case.  Counsel informed the judge that the Secretary for Justice would seek leave from the Court of Appeal.  She confirmed that the Secretary had given, in accordance with ss.81AAC(4) and 81AAD, the requisite acquittal guarantee.  Counsel applied for an expedited hearing, which the judge granted. The judge ordered an abridgement of the 21-day period for service of the notice of appeal to 9:30 am on 27 January 2026.  After dealing with other consequential matters, the judge then adjourned the case to 30 January 2026 pursuant to s.81AAF. 

13.  Mr Richard Donald, with Mr Patrick PS Wan, counsel for the 2^nd defendant, agreed to an abridgement of the period for service of the notice of appeal specified under r.4(1) and had no objection to the Court of Appeal hearing the application on an expedited basis, before the expiry of the 28-day period from service of the notice of appeal under r.5(2) and (3).  Mr Donald confirmed his consent to the abridgement of the time for service of the notice of appeal and to the expedited hearing of the application for leave to appeal against the ruling.

14.  As the proceedings relating to the 2^nd defendant and others are ongoing, we made an order, pursuant to s.81AAI, prohibiting the publication or broadcast of any report of the proceedings relating to this appeal.

15.  At the conclusion of the parties’ submissions, we granted the Secretary for Justice leave to appeal the judge’s ruling and, treating that hearing as the appeal, we allowed the appeal and reversed the judge’s ruling pursuant to s.81AAH(1) and (2), having been satisfied that the ruling involved errors of law and of principle.  We were satisfied, according to the requisite standard and relevant legal principles, that the 2^nd defendant had a case to answer for the offence of murder.  Pursuant to s.81AAH(4)(a), we ordered that the proceedings against the 2^nd defendant, together with those against the other defendants, for the offence of murder as charged in the indictment, be resumed in the court below.

16.  We further ordered that the prohibition against publishing or broadcasting any report of these proceedings should continue until the conclusion of the trial, save for any reference to, or use of, these proceedings and our judgment by the parties in the trial proceedings themselves.  We indicated that we would hand down the reasons for our judgment on Tuesday, 3 February 2026.  These are our reasons.

17.  We should point out that the judge gave a comprehensive analysis of the evidence and the relevant legal principles in light of the arguments advanced before him, but, with respect, he was not greatly assisted by the submissions from the parties, which did not address the no-case-to-answer application in the detail that we have received from them in this appeal.  The prosecution’s submission before the judge occupied less than one page of transcript, simply noting that the 2^nd defendant was a driver in this joint enterprise, conveying Alex, who had the knife that inflicted the fatal wounds on the deceased, to and from the scene, and submitting that it was for the jury to decide whether it was coincidence that the 2^nd defendant conveyed Alex to Chungking Mansions and, after the assault, to Cooke Street to hide the knife. 

18.  Mr Ira Lui, with Ms Kathy Sum, for the Secretary for Justice, analysed and reviewed the CCTV footage of the movements of the assailants, including the 2^nd defendant, before, during and after the assault, highlighting the 2^nd defendant’s location and interaction with the other assailants.  Mr Donald conceded that the 2^nd defendant’s account of dropping off Alex in Yau Ma Tei was not true and was inconsistent with the CCTV footage of a rendezvous at Cooke Street between the 2^nd defendant, Alex, the 1^st defendant, who had been previously assaulted allegedly by the deceased the night before and was seeking revenge by this attack, and the 3^rd defendant, during which Alex hid the knife he had used on the deceased.  This was a highly significant matter, involving the 2^nd defendant allegedly not telling the truth about a rendezvous after the attack on the deceased that lasted about nine minutes.  We note that this and other pertinent matters had not been raised before the judge.

The judge’s ruling

19.  Mr Lui has helpfully set out the judge’s reasons for ruling that the 2^nd defendant had no case to answer as follows:

(1)      The Judge found it clear and undisputed that the 2^nd Defendant was not present at either the first phase or the second phase of the attack on the Deceased (page 5 of the Ruling);

(2)      The Judge identified the core question was whether it was open to the jury to conclude that the 2^nd Defendant knew that someone was to be attacked and that he had done something to enable that plan to be put into effect.  The Judge stated that, if the 2^nd Defendant had known that the assailant named ‘Alex’, who wielded a knife on the Deceased, was to take part in an attack on someone, then by taking Alex to Jordan on his motorcycle it would have been open to the jury to conclude that the 2^nd Defendant had done something to put that plan into effect (page 6 of the Ruling);

(3)     CCTV showed Alex carrying a bag when entering Chungking Mansions.  The Judge found that the knife used was too large to conceal on Alex's person and could have been in the bag.  However, the Judge found that it was not open to the jury to infer that the 2^nd Defendant knew the bag contained a knife or that he lied to conceal such knowledge.  The Judge reasoned that the 2^nd Defendant's initial failure to notice or mention the bag could be explained by the fact that by the time of his interview (about 17 hours later), the 2^nd Defendant would likely have known that someone had been stabbed to death by Alex.  In those circumstances, the jury might well think that the 2^nd Defendant's initial account reflected a retrospective realisation, namely, that he had only put two and two together after the event and had then realised that Alex must have been carrying the knife in the bag (page 7 of the Ruling);

(4)      The Judge noted that, in his Police interview, the 2^nd Defendant stated that upon arriving in Jordan with Alex, Alex told him that some friends were going to come to Jordan and that he needed to speak to them about a monetary dispute.  However, the Judge held that this was not material for present purpose, because by that point the 2^nd Defendant had already transported Alex to Jordan and rendered whatever assistance he had given to put any plan to attack the Deceased into effect (pages 7-8 of the Ruling);

(5)      In his Police interview, the 2^nd Defendant made no admission that he knew someone was to be attacked.  The Judge found no basis upon which the jury could infer that it was a lie, or that Alex had in fact told him that someone was to be attacked.  The Judge further held that no such inference could be drawn from the 2^nd Defendant’s presence at the location where the knife was found, as that presence was equally consistent with him having learned of the attack on the Deceased only after it was over (page 8 of the Ruling);

(6)     The Judge accepted that the 2^nd Defendant was not at the scene of the stabbing, so the blood found on his T-shirt could not have come from direct involvement.  CCTV showed Alex riding behind the 2^nd Defendant on the motorcycle after the attack.  As blood could easily have been transferred indirectly from Alex’s hand onto the 2^nd Defendant’s shoulder, the blood evidence did not support an inference of participation or prior knowledge (pages 8-9 of the Ruling);

(7)      The Judge considered and rejected the possibility that Alex must have told the 2^nd Defendant the real purpose of the trip or shown him the knife.  The Judge held that such an inference would only be possible if there were evidence that the 2^nd Defendant knew the Deceased, knew about the revenge motive or knew other attackers (page 9 of the Ruling); and

(8)      Since it was not open to the jury to conclude that the 2^nd Defendant knew that someone was to be attacked, the Judge ruled that the 2^nd Defendant had no case to answer on the charge of both murder and manslaughter (page 9 of the Ruling).

The test for a case to answer

20.  Before we examine the prosecution case against the 2^nd defendant, it is appropriate to refer to the test for a case to answer set out by this Court in Re Secretary for Justice’s Reference (Nos 1-3/2021)[2].  Macrae VP, giving the judgment of the Court, restated the established principles that a no-case-to-answer submission is a question of law to be decided by the judge alone and that the judge should not encroach on the jury’s function as the finder of fact.  The question is not whether the defendant ought to be convicted, but whether, on the evidence as it stands, he could lawfully be convicted.[3] It is, therefore, not the judge’s function to weigh the evidence, assess credibility, or choose between competing or conflicting evidence.[4]  Findings of fact and credibility regarding defence assertions are the exclusive province of the jury.[5] 

21.  Macrae VP explained that, where it is submitted that there is no case to answer in a case involving circumstantial evidence, the question is whether it is properly open to the jury to reach the inference contended for by the prosecution.  If there is an inference of guilt which was reasonably open to the jury to draw, the case may be left to the jury, notwithstanding that there might be another inference consistent with innocence.  He reaffirmed the approach in Attorney General v Li Fook Shiu Ronald[6]and R v Galbraith[7] that, where a judge is faced with a submission of no case to answer and the prosecution case depends on an inference or inferences from primary facts, the judge may ask himself or herself:

(i)     is there some evidence that the crime has been committed?  If not, the judge will rule no case or discharge the count in question.  If there is;

(ii)     is the evidence of primary facts of a quality permitting a jury to accept it?  If not, the judge will stop the case or discharge the count.  But, if such evidence is of appropriate quality;

(iii)    could, may or might a jury, properly directed, be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established?  If he or she concludes that a jury could, may or might so be satisfied, he or she will rule against the submission or application.[8]

The doctrine of joint enterprise

22.  As the prosecution case against the 2^nd defendant was that he was part of a joint enterprise with others to murder the deceased, it is appropriate to briefly mention the principles regarding joint enterprise in criminal cases that have been settled by the Court of Final Appeal in HKSAR v Chan Kam Shing [9].  The doctrine of joint criminal enterprise liability is distinct from traditional rules on accessorial liability, although there are situations where those rules may overlap.  Accessorial liability is derivative, whereas liability under the doctrine of joint criminal enterprise is independent, arising from the defendant’s participation in the enterprise with the requisite mental state, rather than deriving from the principal’s guilt.[10] The two doctrines may provide overlapping bases for establishing guilt.[11] 

23.  There are two forms of joint criminal enterprise: basic and extended.  Accomplice liability under either doctrine does not require shared physical performance of the actus reus.  Under basic joint enterprise, liability attaches where the offence falls within the agreed scope of the enterprise.  Under extended joint enterprise, liability arises where the secondary party foresaw the possibility that the co-adventurer might commit the further offence.[12] 

24.  It is convenient to set out the judge’s directions on the law regarding joint criminal enterprise, in which he succinctly explained the relevant principles:[13]

“In the particular circumstances of this case, a defendant has a case to answer on the charge of murder if that defendant can safely be identified by the jury as someone who took part in the second phase of the attack on Ali. Moreover, in my view, a defendant may have a case to answer on the charge of murder even if he did not take part in the second phase of the attack on Ali – provided that that defendant can safely be identified by the jury as someone who had taken part in the first phase of the attack on Ali, or as someone who at some time that evening had been in the company of any of the men who attacked Ali, or as someone who was there or in the vicinity when Ali was attacked. However, in the light of the current state of the law in Hong Kong when it comes to accessorial liability in a case of murder, it would have to be open to the jury to conclude five other things if they are to convict a defendant who did not take part in the second phase of the attack on Ali of murder. First, that such a person had known of the plan that someone was to be attacked. Secondly, that such a person had done something to enable that plan to be put into effect. Thirdly, that such a person was aware that there was a real risk that one or more of the others intended to cause the person who was to be attacked really serious injury. Fourthly, that such a person was aware that there was a real possibility that one or more of the others might use a weapon of the sort which could cause the person who was to be attacked really serious injury. Fifthly, that such a person nevertheless continued to give their assistance to the execution of the plan.”

The prosecution evidence

25.  The deceased was attacked by a group of eight men at around 3:57 hours to 3:58 hours on 29 August 2022 in Jordan Road.  One of the men was Alex, who was armed with a Gurkha knife.  He inflicted the fatal blows on the deceased, who died from multiple chop and cut wounds.[14]  The Gurkha knife with a black knife case was later recovered in Hung Hom with the deceased’s bloodstains and DNA on it.  We were shown the knife and informed that it is approximately 50 cm in length (the blade is 35 cm and the handle is 15 cm).

26.  We were provided with an enlarged map of the scene of the crime at Jordan Road and Nathan Road.[15]  We were also shown various screenshots of the CCTV footage for the purpose of identifying the parties involved and CCTV footage depicting relevant events before, during and after the attack on the deceased.  We benefited considerably in understanding the nature and strength of the prosecution case from the comprehensive and progressive examination of the numerous visual recordings of this gang attack on the deceased.  Unfortunately, this exercise was not conducted with the judge during the half-time submissions.

27.  At around 2:48 hours to 2:49 hours on 29 August 2022, the 2^nd defendant and Alex (carrying a Foodpanda bag), both wearing motorcycle helmets and face masks, entered Chungking Mansions[16].  They are filmed walking around the rear lane at Chungking Mansions, each wearing a helmet.  They were there for more than half an hour.  It was noted that throughout this incident, the 2^nd defendant and Alex wore motorcycle helmets and face masks. The other assailants wore baseball hats and face masks.  This was during the summer and the COVID pandemic.

28.  At around 3:32 hours, the 2^nd defendant transported Alex from Chungking Mansions to Nanking Street on his motorcycle.  They are filmed dismounting from the motorcycle.  When Alex left the 2^nd defendant, he was wearing the helmet and face mask, and carrying the Foodpanda bag.  The 2^nd defendant then drove his motorcycle around the corner into Chi Wo Street at around 3:40 hours.  He parked his motorcycle there, alighted and walked back down Chi Wo Street towards Jordan Road.[17] 

29.  The judge postulated that the Gurkha knife may have been in the Foodpanda bag.  The parties before us did not agree with this suggestion.  The prosecution submitted that the knife may have been secreted within the jacket that Alex was wearing.  Mr Donald produced a Foodpanda bag, without formally adducing it as fresh evidence on appeal, suggesting it was the same size as the bag that Alex carried and submitting that the Gurkha knife was too big for the bag.  We observed that this was a matter for the jury, but also noted that there were evidential issues regarding the Foodpanda bag that Mr Donald produced, namely whether it could be properly admitted into evidence and whether it was of the same size as the one Alex carried during this incident.

30.  At around 3:52 hours, one of the wanted persons, wearing a baseball hat and a face mask, entered the Circle K convenience store at Jordan Road.  He appears to have purchased four bottles of beer[18].  Standing outside the store are the 3^rd defendant and the 4^th defendant, both wearing a baseball hat and a face mask.  It was the prosecution case that the 3^rd defendant had arranged a meeting with the deceased at the store.  CCTV footage of Jordan Road next to the MTR exit B1 shows the 4^th defendant holding a cricket bat in his left hand and a beer bottle in his right hand.  He is walking together with another assailant.  He is later seen putting down the cricket bat and picking it up again[19].  Also seen at this location is the 2^nd defendant who appears to interact with one of the assailants, who is wearing an orange baseball cap and a face mask, holding a beer bottle.

31.  At around 3:56 hours, the deceased is seen standing outside the Circle K Convenience Store with the 3^rd defendant and another assailant.  They were apparently having a conversation near the entrance of the store.  Suddenly, the deceased ran away in the direction of Nathan Road.  A number of people, including Alex and the 3^rd defendant, are seen following the deceased.  The 2^nd defendant was positioned behind Alex, looking in the same direction as the men were running, and eventually ended up outside New Lucky House, near Nathan Road.[20]  The CCTV footage showed Alex holding an object in his right hand while chasing the deceased.  He is carrying the Foodpanda bag in his left hand.  It is the prosecution case that the object was the Gurkha knife later used to stab the deceased, though this is disputed by the 2^nd defendant.  The footage also showed that the 2^nd defendant was about a metre behind Alex and looking in his direction.  It is the prosecution case that the 2^nd defendant could have seen the object held by Alex[21].  Mr Donald initially submitted to us that, when viewing the CCTV footage, Alex was not carrying any object in his right hand, but after further examination of the footage he accepted that the grey item extending from Alex’s right hand had the appearance and shape of the Gurkha knife.  This factor, together with the admitted fact that Alex was in possession and used the Gurkha knife to attack the deceased, was a matter for the jury to consider whether Alex was carrying the knife at the time and whether the 2^nd defendant could see it.  Mr Donald also complained about the quality of the footage but, as noted before us, the footage had been admitted into evidence, and no application had been made to exclude it.

32.  The 2^nd defendant walked along Jordan Road in the direction of Nathan Road, where the attack was taking place, but did not cross the junction of Jordan Road and Nathan Road. He did not take part in the actual attack on the deceased, which took place near the junction of Jordan Road and Parkes Street[22].

33.  After the attack, some of the men walked along Jordan Road and turned into Nathan Road at around 3:59 hours.  This included the 1^st defendant, the 3^rd defendant, a wanted person and Alex, still carrying the Foodpanda bag, but the knife could not be seen.  At around 4:02 hours, the 2^nd defendant and Alex as well as the other three men appeared in Chi Wo Street.  The 2^nd defendant and Alex boarded the motorcycle and drove away at 4:03 hours, passing the other three men[23]. 

34.  At around 4:10 hours, the 2^nd defendant and Alex arrived at Cooke Street on the motorcycle.  As Alex was dismounting from the motorcycle, a plastic bag fell from the Foodpanda bag which the 2^nd defendant picked up.  Soon after, they are joined by the 1^st defendant and the 3^rd defendant, who arrived by taxi.  The 1^st defendant greets the 2^nd defendant.  Alex, still wearing the helmet but without the Foodpanda bag, walked to the rear lane of Bulkeley Street with the 2^nd defendant checking to see where Alex had gone.  It was the prosecution case that Alex hid the Gurkha knife and the knife case above a wooden board in the ceiling of a metal structure.  The knife was later recovered, hidden above the wooden board, by the police.  As submitted by the prosecution, this would appear to be a rendezvous by the four men, who talked with each other for about 9 minutes, leaving at around 4:19 hours.  The 2^nd defendant and Alex boarded the motorcycle and drove away[24]. 

35.  At around 6:10 hours, the 2^nd defendant was seen drivinghis motorcycle alone at Hung Hom Ferry Bus Terminus[25].

36.  The 2^nd defendant participated in three video recorded interviews (referred to as a VRI) and we have been provided with a summary of those interviews, which we set out as follows together with some additional comments. The interviews contained mixed statements by the 2^nd defendant.  Whilst he admitted being together with Alex before and after the attack and was in fact not far away from Alex and the deceased outside the Circle K Convenience Store when the incident began, he denied witnessing the attack or taking part in it.  He claimed that he was not paying attention to the fight and when he noticed it, he said he was concerned and returned to his motorcycle.  When Alex later returned to the motorcycle, he told the 2^nd defendant that he had had a small fight.  The 2^nd defendant stated that Alex had asked to get off when travelling towards Yau Ma Tei and left after placing the helmet into the motorcycle’s storage box.  This was not correct as the 2^nd defendant drove Alex to Cooke Street where they were met by the 1^st defendant and the 3^rd defendant.  During this meeting, the men are seen interacting with each other and Alex is observed, walking into and out from a nearby lane, where the prosecution alleged he hid the knife.  In our view, this was a highly significant matter, but unfortunately it was not raised before the judge during the half-time submissions. 

37.  In the small hours of 29 August 2022, the 2^nd defendant claimed that he rode his motorcycle to Chungking Mansions, where, outside, he encountered Alex.  Alex said he was looking for someone inside Chungking Mansions, and the 2^nd defendant walked once around the building with him.  Upon leaving, Alex then told the 2^nd defendant that he had some business in Jordan and asked for a ride there, to which request the 2^nd defendant agreed[26].  He then drove Alex to Jordan, dropping him off near a primary school[27].

38.  The 2^nd defendant had only met Alex once or twice and did not have his contact details.  He said people like Alex “who would do such things” would not give others their full names or contact numbers[28].

39.  Upon arrival at Jordan, Alex did not dismiss the 2^nd defendant.  Instead, he asked the 2^nd defendant to wait for him, stating that his friends were coming and he needed to talk to them because they had had an argument about some previous dealings.  Alex requested the 2^nd defendant to give him a ride after their discussion[29]. 

40.  The 2^nd defendant waited for approximately 10 to 15 minutes.  He wanted to leave and asked for his helmetback, but Alex insisted he wait for 5 minutes[30]. He followed Alex towards Exit B of Jordan MTR Station[31]. He said the situation suddenly turned chaotic.  He saw Alex speaking with others, followed by the arrival of other men.  The 2^nd defendant said the men were masked and claimed that he knew only one of them.  The deceased then ran off, and Alex ran after him wearing the helmet[32].

41.  The 2^nd defendant stood at a distance of approximately 100 metres and heard the sound of a bat and bottle being thrown when the fight occurred.  He said that when the fight started, he was focusing on his mobile phone, but he saw someone holding a bat.  He did not initially know that a fight had broken out and believed there was only an argument.  However, upon seeing the bat, he realised that a fight was taking place.  At that time, he was about 6 to 7 steps behind the group[33].

42.  The 2^nd defendant then returned to his motorcycle as he was concerned that the incident might cause him problems because of his helmet[34]. Afterwards, Alex returned to the motorcycle.  The 2^nd defendant observed that Alex’s arm was injured.  Alex told the 2^nd defendant that a small fight had occurred[35].

43.  The 2^nd defendant then drove Alex from the scene towards Yau Ma Tei.  During the ride, Alex suddenly asked the 2^nd defendant to stop.  Alex then ran off after placing the helmet into the motorcycle’s storage box[36].

44.  As we have already said, this was a highly significant matter and it was appropriate that we set out the 2^nd defendant’s statements regarding his dealings with Alex and others after the attack on the deceased.  In the 1^st VRI, the 2^nd defendant stated that, after Alex had told him that there was a small fight, “After that, I rode the scooter, I went to the side of Yau Ma Tei and he on the half way, I don’t remember, he said stop, stop, stop, I stopped, he opened the box and threw the helmet in, and ran away, but I don’t remember where in Yau Ma Tei I stopped the scooter because I also had drunk.”[37]  He reiterated that Alex left and ran away.[38]  It was noted that he had said he took Alex to Yau Ma Tei and he was asked whether he drove the motorcycle and took Alex to Yau Ma Tei.  He responded in the affirmative, confirming that he was the one riding the motorcycle.[39]  He could not remember the time when they arrived at this place[40] and he confirmed that Alex had put the helmet in the box installed behind the bike.[41]  In the 3^rd VRI, the 2^nd defendant was asked if he remembered where he dropped Alex off away from Yau Ma Tei.  He said, “No, a little further because I was also a fully drunk.”[42]  When asked if he could provide the location, he said, “No location, because after going a little further he (knocked like “TAK TAK” means, drop me off), and by throwing the helmet he just went ahead.”  He repeated, “I said, when we go a little further, a littler [sic] on the road, we stop somewhere, but now I can’t remember the exact location.”  He reiterated that they went a little bit further and that Alex suddenly asked him “to get off”.  He said that Alex got off the bike himself and when asked where he went, he said, “No, he jumped down instantly” and “run away”.[43]  It is open to the jury to conclude that the 2^nd defendant had a clear recollection of Alex being dropped off in Yau Ma Tei and running away but consciously made no mention of the Cooke Street meeting.  It is also a matter for the jury to assess from the visual recordings his conduct and circumstances in the periods he is filmed, and his state of sobriety and whether he was steady and coordinated when walking, riding and parking his motorcycle, which would be subject to any other evidence.  As already noted, Mr Donald accepted that the 2^nd defendant’s account was not correct, and acknowledged that as the matter stood a lies direction would be required.

45.  The 2^nd defendant rode home to Yau Tong, arriving at around 6:30 hours to 7:00 hours, where he said he continued drinking before sleeping[44].

46.  During the VRIs, when questioned by the police as to why he and Alex were wearing helmets when entering Chungking Mansions, the 2^nd defendant explained that he had met Alex before going inside.  Alex asked whether the 2^nd defendant had anywhere to go, and he replied that he was free.  Alex then asked the 2^nd defendant to drop him off in Jordan, to which the 2^nd defendant agreed and suggested that they put on their helmets.  Alex subsequently asked the 2^nd defendant to wait for 1 to 2 minutes, stating that he had forgotten to collect something inside Chungking Mansions.  The 2^nd defendant said that he went inside together with Alex and intended to meet his friends there.  When asked what he would have done if he had met his friends, the 2^nd defendant said that he would have remained inside and not gone anywhere.  He further stated that if he had seen his friends, he would have asked Alex to return his helmet and to take the MTR to Jordan[45].

47.  When questioned about the Foodpanda paper bag carried by Alex, the 2^nd defendant initially stated that Alex only had the bag after entering Chungking Mansions.  However, when shown CCTV footage of Alex entering Chungking Mansions with the bag, he said he had not paid attention.  He further stated that, as the bag belonged to Alex, he did not see what was inside it, nor was he told by Alex about its contents[46]. We noted that at the Cooke Street rendezvous, it appeared that a plastic bag fell out of the Foodpanda bag, which the 2^nd defendant picked up and walked around with it for some time.

The grounds of appeal

48.  Mr Lui advanced five grounds of appeal challenging the judge’s ruling that the 2^nd defendant had no case to answer on the charge of murder.  The first three grounds arise from the judge’s analysis of the evidence, which he submitted involve errors of principle, and the last two grounds concerned alleged omissions, namely factual matters which he submitted should have been taken into account by the judge.  He contended that the cumulative effect of these grounds vitiated the judge’s ruling.

49.  The first ground contended that the judge engaged in speculation about the 2^nd defendant’s knowledge at the time of his police interview and how the jury might evaluate his answers during his recorded interviews[47]. Mr Lui argued that the judge made a finding, which was impermissible because it was a question for the jury – that the knife was in the Foodpanda bag.  The judge did not make such a finding; rather, he was analysing the evidence to determine whether an adverse inference could be drawn, as contended by the prosecution.  He said it would have been open to the jury to infer that the knife was in the bag and, in those circumstances, to the jury to infer that the 2^nd defendant’s initial statement to the police – namely, that he had not noticed Alex holding anything at the time – was intended to conceal his awareness of the knife in the bag.  However, the judge ultimately concluded that such an inference was not available to the jury.  We accepted that it was for the jury to determine the significance of the 2^nd defendant’s initial claim to the police, particularly the proposition that the 2^nd defendant might only have realised after the event that Alex had the knife in the bag.  We were informed that the prosecution did not submit that the Gurkha knife was in the Foodpanda bag, although this was not made clear from the prosecution’s half-time submissions to the judge.  Mr Donald submitted that the defence position was that there was no an evidential foundation for the assertion that the Gurkha knife was in the bag, and that the judge made a mistake in making this finding. 

50.  The second ground was that the judge usurped the jury’s role in the assessment of evidence, including determining the materiality of evidence[48]. Mr Lui contended that by characterising as immaterial the fact that, according to the 2^nd defendant’s cautioned statements, Alex had told the 2^nd defendant he and other friends were going to Jordan to discuss a monetary dispute, the judge usurped the jury’s role in making factual findings in respect of the 2^nd defendant’s interviews.  We did not consider that this reflected what the judge actually said, which was as follows:[49]

“… Alex had told him that some friends of his were going to come to Jordan, and that he had to talk to them about an argument he’d had with them in the past to do with money. Again, that is not material for present purposes as by then Harwinder [the 2^nd defendant] had done the things which the prosecution say represent the assistance he had given to put any plan to attack Ali into effect.”

51.  Mr Lui made the point that this overlooks the 2^nd defendant’s involvement in the rendezvous at Cooke Street; however, this point was never advanced before the judge.  We agreed that this was a significant issue, but it was not put before the judge as part of the prosecution case, despite the availability of supporting evidence.  As previously noted, a thorough review of the CCTV footage established a case to answer against the 2^nd defendant; nevertheless, this was not presented to the judge during the half-time submissions.

52.  The third ground contended that the judge erred by requiring the prosecution, in effect, to exclude all other reasonable inferences in assessing whether there was a case to answer[50].  Mr Lui submitted that, by finding there was “no basis on which the jury could infer that that was a lie and that Alex had told him that someone was to be attacked” and that the 2^nd defendant’s presence at the place where the knife was found was “just as consistent with him learning about the attack after it was over”,the judge encroached upon the role of the jury.  However, in context, the judge stated:[51]

“That was all that he told the police: there was nothing amounting to an admission that he knew that someone was to be attacked. Subject to one point to which I shall return, I see no basis on which the jury could infer that that was a lie and that Alex had told him that someone was to be attacked. Nor could it be inferred from Harwinder’s presence at the place where the knife was found that he had known about the attack on Ali beforehand. His presence there is just as consistent with him learning about the attack after it was over.”

53.  As we have already pointed out, the jury could infer that the 2^nd defendant lied, subject to any explanation he might have offered, when he stated that he had dropped off Alex in Yau Ma Tei; however, as we have repeatedly observed, this was not put before the judge.  This also highlights the significance of the Cooke Street meeting, which, although it took place after the attack, provides a basis on which the jury could infer that the 2^nd defendant was a participant in the gang attack on the deceased.  It is well established that subsequent events can have forensic significance in proving an accused’s involvement in a crime.  There is also evidence of the 2^nd defendant’s participation in taking Alex to Jordan, his presence during the attack, his waiting for Alex to take him away, taking Alex to Cooke Street, and his interaction with some of the assailants.

54.  The fourth ground was that the judge failed to consider relevant CCTV evidence implicating the 2^nd defendant.  Mr Lui contended that the judge did not take into account CCTV footage indicating that the 2^nd defendant was present outside the Circle K Convenience Store, where Alex first produced the knife.  We agreed, after careful review of the CCTV footage, that this was an evidential matter for the jury.  It was open to the jury to infer that Alex had the Gurkha knife in his right hand outside the store and that the 2^nd defendant, being in close proximity, was in a position to see that Alex had the weapon as he chased after the deceased.

55.  The fifth ground contended that the judge failed to give weight, or sufficient weight, to the totality of circumstantial evidence against the 2^nd defendant.  The judge gave a very detailed analysis of the evidence and the relevant legal principles which focused on the cases presented by the prosecution and the defence.  However, the judge was not taken through the CCTV footage, nor were pertinent matters highlighted with him when presenting the prosecution case.

56.  In our view, the jury would be entitled to conclude, based on the nature and sequence of events in which the 2^nd defendant participated – particularly his presence at the time of the attack on the deceased and at the Cooke Street rendezvous, as well as his interaction with members of the gang – that he was a party to the gang attack on the deceased.  Mr Lui cogently argued that the 2^nd defendant was allowed to be present and interact with the assailants, and that he would not have been permitted to remain as a witness, able to report on what transpired, unless he was a party to the attack.  The determination of a case to answer is a question of law, and in that respect there has been an error of law.  In addition, regarding the evidential matters that we have identified, there have been errors of principle, although this must be considered in light of the fact that various important matters were not submitted to the judge and would have had a crucial bearing on his decision.

Conclusion

57.  As stated at the outset of this judgment, we were satisfied that the 2^nd defendant had a case to answer on the charge of murder as set out in the indictment.  Accordingly, we reversed the judge’s ruling and ordered the resumption of the trial of the 2^nd defendant, together with those of the other defendants.  We also made a prohibition order in the terms previously set out.  

[1] See Part 9 of the Criminal Justice Act 2003 and Part 38 of the Criminal Procedure Rules 2025.

[2] Re Secretary for Justice’s Reference (Nos 1-3/2021) [2022] 5 HKLRD 886.

[3] Re Secretary for Justice’s Reference (Nos 1-3/2021), at [37], [38] and [110(i)]. 

[4] Re Secretary for Justice’s Reference (Nos 1-3/2021), at [39], [40] and [110(ii)]. 

[5] Re Secretary for Justice’s Reference (Nos 1-3/2021), at [52], [53] and [58].

[6] Attorney General v Li Fook Shiu Ronald [1990] 1 HKC 1.

[7] R v Galbraith [1981] 1 WLR 1039.

[8] Re Secretary for Justice’s Reference (Nos 1-3/2021), at [62], [109], and [110(vi)].

[9] HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640.

[10] Chan Kam Shing, at [33] and [37]. 

[11] Chan Kam Shing, at [36] and [44].

[12] Chan Kam Shing, at [40], [41], [45] and [50].

[13] Pages 1 and 2 of the ruling.

[14] Admitted Facts, at [1], [2], [5] and [25]. 

[15] See exhibits P303(1) and P307(1)-(9). 

[16] See exhibits P309(2) and (2A).

[17] See exhibit P309(6A), (6B), (7) and (7A).

[18] See exhibit P309(11) and (12).

[19] See exhibit P309(16) and (17).

[20] See exhibit P309(31A); 2^nd VRI – Counters 777 and 778; 1^st VRI – Counters 879,1434-1438.

[21] See exhibit P309(18), (23)-(25).

[22] See exhibit P309(31A)-(48).

[23] See exhibit P309(48),(49),(50A)-(51A), (53) and (54).

[24] See exhibit P309(71) and (79)and Admitted Facts, at [15].

[25] See exhibit P309(89) and Admitted Facts, at [23].

[26] 1^st VRI – Counters 382-403, 420-421, 428-429, 558-559, 570-655, 682-699; 2^nd VRI – Counters 638-640.

[27] 1^st VRI – Counters 698-705.

[28] 2^nd VRI – Counters 354-355, 474-475, 692-693.

[29] 1^st VRI – Counters 710-727; 3^rd VRI – Counters 1230-1313.

[30] 1^st VRI – Counters 732-735, 793-805; 2^nd VRI – Counters 578-591.

[31] 1^st VRI – Counters 754-755, 780-787; 3^rd VRI – Counters 627-650.

[32] 1^st VRI – Counters 762-763, 810-831; 2^nd VRI – Counters 704-705; 3^rd VRI – Counters 655-683.

[33] 1^st VRI – Counters 848-879, 1822-1837; 2^nd VRI – Counters 777-786, 793-803, 821-833; 3^rd VRI – Counters 655-724.

[34] 1^st VRI – Counters 897-904, 914-923, 930-931; 2^nd VRI – Counters 730-731; 3^rd VRI – Counters 732.

[35] 1^st VRI – Counters 936-937, 1137-1168; 2^nd VRI – Counters 736-745.

[36] 1^st VRI – Counters 943-969; 3^rd VRI – Counters 741-780.

[37] 1^st VRI – Counter 943.

[38] 1^st VRI – Counter 949.

[39] 1^st VRI – Counters 956 and 957. 

[40] 1^st VRI – Counter 963.

[41] 1^st VRI – Counters 962, 963, 968 and 969. 

[42] 3^rd VRI – Counters 753 and 754. 

[43] 3^rd VRI – Counters 759-780. 

[44] 1^st VRI – Counters 974-1017.

[45] 3^rd VRI – Counters 514-521, 791-902, 1230-1313.

[46] 2^nd VRI – Counters 716-717; 3^rd VRI – Counters 356-412, 436-455, 472-487, 500-507, 526-571, 596-603, 791-853, 912-936.

[47] Pages 6 and 7 of the ruling.

[48] Pages 7 and 8 of the ruling.

[49] Page 8 of the ruling.

[50] Page 8 of the ruling.

[51] Page 8 of the ruling.