HKSAR v. MOK CHUN YIN

CACC 144 /2018

[2020] HKCA 231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 144 OF 2018

(ON APPEAL FROM HCCC NO 243 OF 2017)

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J U D G M E N T

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Hon Macrae VP (giving the Judgment of the Court):

1.  The applicant originally faced an indictment containing three counts: murder, theft and attempted theft. He pleaded guilty to the counts of theft and attempted theft, but not guilty to the count of murder. However, he indicated that he would offer a plea of guilty to manslaughter. The offer was not accepted by the prosecution and the trial proceeded on an amended indictment alleging a single count of murder. Accordingly, the jury were unaware of the applicant’s other pleas of guilty.

2.  On 8 May 2018, the applicant was convicted after trial of murder before Yau J (“the judge”) and a jury and sentenced to life imprisonment.  In respect of the counts of theft and attempted theft, the applicant was sentenced to an overall period of 9 months’ imprisonment, to run concurrently with his life sentence.  He now seeks leave to appeal against his conviction for murder. 

The prosecution case

3.  It was not in issue that the applicant caused the death of Chan Man Yi Arbe (“the deceased”) by strangling her on 4 December 2013 in her bedroom at the apartment where she lived with her parents and family.  The prosecution case was that the applicant had planned to kill the deceased and had gone to the deceased’s home with that intention.

4.  The deceased was a flight attendant for Dragonair.  It was agreed by way of Admitted Facts that the applicant and the deceased had been lovers but that after the applicant had mistreated her on about 4 or 5 September 2013, their relationship turned sour and, in September or October 2013, came to an end^[1]. In early November 2013, she developed a new relationship with another man, who gave evidence at trial for the prosecution (“PW4”)^[2]. 

5.  In the afternoon on 4 December 2013, the applicant went to the deceased’s home^[3], where he strangled her to death.  He placed her body in the wardrobe of her bedroom, secreted items of her uniform under the quilt of her bed and hid her work suitcase on top of a cupboard in her parents’ room, thereby creating the impression that she had gone to work.

6.  The applicant then left the apartment, taking away the deceased’s mobile telephone and bank card.  He sold the telephone, which was the subject of the theft charge.  He also tried to withdraw money from the deceased’s account with the bank card, but was unsuccessful, since he did not have the correct password.  This was the subject of the attempted theft charge.  However, the removal of the deceased’s telephone and bank card by the applicant were not known to the jury, the amended indictment only particularising the count of murder.  We have referred to these facts, which were admitted by the applicant, in light of the argument as to character which is engaged by Ground 3 of the appeal.

7.  The deceased was scheduled to report for duty at 4:30 pm on the day she was killed^[4]. She was then rostered to be off duty for the next two days, namely, 5 and 6 December 2013^[5], before working again on 7 December 2013, when she was due to fly to Shanghai.  However, before the deceased was killed, she had made a telephone call at about 3:13 pm on 4 December 2013 to her supervisor (“PW7”) to apply for sick leave^[6]. The recording of this telephone call was produced at the trial (Exhibit P12). Both the deceased’s father (“PW1”) and her sister (“PW2”) listened to the recording of the telephone call: it was PW2’s evidence that the deceased’s voice was trembling and different from normal^[7].

8.  A colleague and friend of the deceased (“PW3”) discovered that the deceased was absent from duty on 7 December 2013 and was unable to contact her.  Accordingly, PW3 contacted PW2 on 8 December 2013. Sensing that something was wrong, PW2 spoke to her parents.  It was PW1 who made the terrible discovery of the deceased’s body inside the wardrobe of her bedroom.

9.  Meanwhile, the applicant decamped for the Mainland in the evening of 7 December 2013.  Before leaving the jurisdiction, however, he met up with two of his friends separately, a Ms Tsang (“PW9”) and a Mr Li (“PW10”), and told them that he had killed the deceased. PW10 contacted the police after learning about the murder from the media.  PW9 did not contact the police but was contacted by them at about 4 pm on 8 December 2013, after which she gave a witness statement.

10.  The prosecution placed particular reliance on what the applicant had told PW9 in order to prove that the applicant had planned to go to the deceased’s home with the intention of killing her.  She gave evidence that she had met the applicant in the evening of 6 December and thereafter remained with him until the morning of 7 December 2013.  She testified that the applicant had told her, whilst they were seated on a bench outside the Government Offices in To Kwa Wan, Kowloon that he had checked the work schedule of the deceased and knew when she would be leaving for work on 4 December 2013.  Thus, he waited for her outside her door and, when she opened the door, he dashed in.  The applicant told PW9 that he had killed the deceased and, further, that he had wanted to kill her on a previous occasion.  He said that he would not let others have what he could not have, and referred to an incident during his childhood when he had thrown a video game machine down to the street when asked by his family to let his cousin play with it^[8].

11.  After decamping for the Mainland, where he spent the next 2 years and 10 months, the applicant was apprehended by the Chinese authorities in October 2016^[9]. He was returned to Hong Kong on 1 February 2017.  Following his arrest by the Hong Kong Police for murder, the applicant said under caution, “As I knew she had a boyfriend, (I) was blinded with anger and so (I) strangled her with (my) hands.  Then (I) hid her in the wardrobe and left”^[10].

12.  In a later video-recorded interview under caution (“VRI”) with the police, the applicant again admitted killing the deceased, but said he did not mean to kill her.  He claimed that he had gone to the deceased’s home, sometime after 1 pm, intending to reconcile with her, since they had already had a cooling-off period between October and November 2013.  Following a discussion, she was persuaded to get back together with him, and accordingly rang her office to apply for sick leave, so that she and the applicant could spend time together.  Soon afterwards, however, the deceased’s mobile telephone made the sound of an incoming message, so he picked up the telephone and made the discovery that she was seeing another boyfriend.  He refused to give the deceased’s telephone back to her, and demanded to know why she had cheated him by giving him hope and then letting him down.  She then responded with the provoking words, “It’s the case, so what?”^[11].

13.  In trying to get her telephone back, the applicant said that the deceased attacked him by scratching his back and neck. He then remembered an earlier incident in which he had been being cheated by her.  He became furious, pressed her down and squeezed her neck hard[12].  He was not sure how long he squeezed her neck, but he then felt and saw wetness on the floor and realised that the deceased had become incontinent and unconscious[13].  He tried to revive her by resuscitation and external cardiac compression[14] but, when there was no response, he was stunned and terrified[15]. He then placed her body in the wardrobe and concealed it with clothing[16], before hiding her suitcase on top of a wardrobe in another room[17].

14.  Dr Lai (“PW11”), the forensic pathologist who performed the autopsy on the deceased was of the opinion that the cause of death was ligature strangulation, or ligature strangulation followed by throttling or throttling followed by ligature strangulation.  However, PW11 did not rule out the possibility of the deceased being killed by throttling alone.

The defence case

15.  The applicant gave evidence in the trial.  He testified that on the day in question he went to the deceased’s home, having made a prior arrangement to collect a scarf and sweater which he had lent her. The deceased opened the door and let him in^[18]. As they were in a cooling-off period, he talked to her about reconciliation and succeeded in persuading her to get back together with him.  The deceased then called her office to ask for sick leave so that they could go to see a film and have dinner^[19].

16.  However, the applicant then discovered from messages in the deceased’s mobile telephone that she had a new boyfriend.  When he confronted her with the messages, she tried to retrieve her telephone back by pounding on his back.  She scratched and squeezed his neck, thereby suffocating him^[20].

17.  She also made insulting and taunting remarks: for example, that he was worse than her new boyfriend in all respects; that he could not satisfy her sexually as her new boyfriend did; that she had first had sex with her new boyfriend in Beijing and was much happier having sex with him than with the applicant.  She told him he was useless and that he had better drop dead[21].

18.  The applicant became very angry^[22].  He removed one of her hands which was squeezing his neck, turned around and strangled her with his hands.  He only stopped when he realised she had become incontinent and unconscious.  He tried to revive her with cardiopulmonary resuscitation but there was no response.  Accordingly, his evidence was that he killed the deceased because he was provoked by her.  His mind was blank and he was unable to control himself.  However, he said that he did not intend to kill her.

19.  The applicant did not take issue with the concealment of the deceased’s body and uniform, nor did he dispute telling PW9 and PW10 about the killing.  In respect of PW9, however, he denied telling her that he had wanted to kill the deceased on a previous occasion, or that he had waited for the deceased to open the door and then dashed in.  He also denied saying that he would not let others have what he could not have, or mentioning the example of his cousin and the video game machine.

The grounds of appeal

20.  Although Ms Draycott SC (who did not appear for the applicant at trial) has advanced no less than seven grounds of appeal, they may be grouped into three distinct complaints.  The principal complaint is that the admission by the parties in the Admitted Facts that “sometime around 4 and 5 September 2013, the defendant had mistreated the deceased and their relationship turned sour since then”^[23] was more prejudicial than probative and should not have been adduced in evidence (Ground 3).

21.  The second area of complaint concerns the judge’s directions to the jury about the absence of any reference to provocative words or conduct in the account of the killing given by the applicant to PW9 on 6 December 2013, and how the jury could regard the difference between that account and his subsequent account given to the police in the VRI on 1 February 2017 (Grounds 1 and 2).

22.  The third area of complaint is concerned with the credibility of PW9 and the reliability of her account of the conversation she had had with the applicant on 6 December 2013, given her subsequent state of intoxication that evening and her initial disbelief that he was telling her the truth (Ground 4); and given the apparent inconsistency between the time she claimed the applicant had told her that he had entered the deceased’s apartment and the known times of his leaving the lift inside the building and her telephone call to PW7 requesting sick leave (Grounds 5, 6 and 7).

Ground 3

23.  Although this complaint was originally pleaded as one attacking the exercise of discretion by the judge in respect of evidence which was said to be more prejudicial than probative, the argument soon metamorphosed into one of intrinsic admissibility, with Ms Draycott contending that the evidence was irrelevant and inadmissible per se.  Furthermore, it was submitted that there were other ways of establishing that the relationship between the applicant and the deceased had come to an end than by adducing the highly prejudicial evidence of the incident in September, and the unnecessary aspersion it cast that the applicant had “done something bad” to her.

24.  In addressing this argument, it is necessary to examine why the prosecution sought to introduce the evidence of the September incident in the first place.  Although the applicant had been arrested on that occasion for grasping the deceased’s neck and covering her mouth during an argument, after which he threatened to buy a knife in order to hurt her family, he was nevertheless bound over to keep the peace by a magistrate on 12 September 2013, upon his admission of these facts.  The prosecution sought to show that as a result of this, in our view rather serious, incident, the relationship between the applicant and the deceased had not “cooled down”, as he had claimed in his VRI, but broken down altogether.  Moreover, as Ms Ching made clear both to the judge and to us, with the deceased not able to give evidence, the prosecution was unable to adduce evidence of the breakdown of the relationship in a way that did not infringe the rule against hearsay.  PW1 and PW2, as close family members, could certainly give evidence of their belief as to the state of the relationship between the deceased and the applicant, but it would inevitably derive from what they had been told by the deceased and could not establish that the relationship was in fact over.

25.  However, it seems to us that the relevance of the September incident was not simply that the relationship had turned sour as a result of it.  It was the prosecution case that the deceased had put the incident and the applicant behind her and moved on with her life.  To that end, evidence was called from PW4, the deceased’s new boyfriend, who testified that he had first met the deceased on 20 October 2013 and, after flying to meet up with her in Beijing on 1 November 2013, they formed a close, intimate relationship.  Thereafter, they saw each other often and communicated regularly by mobile telephone through WhatsApp.  This new development and direction in the deceased’s life was important not only in refuting the applicant’s assertions in his VRI that he and the deceased were in some form of cooling-off period, but also in giving the lie to his claim that on 4 December 2013, she would have agreed to give their relationship another chance, when she was already in a new and steady relationship with PW4.

26.  In our judgment, the evidence of the breakdown of the relationship and the fact that the applicant caused it, some three months before the killing, was not only relevant background evidence, it went to the applicant’s very purpose of going to see the deceased on 4 December 2013, and undermined his claims of what transpired when he arrived at her home.

27.  It soon became clear when we examined the issue with both counsel that, in the event, the judge was not called upon to make a ruling or exercise his discretion in respect of the evidence of the September incident and its effect, because defence counsel at trial ultimately made the admission about which Ms Draycott now complains.  It was, we think, for this reason that the metamorphosis of Ground 3 from a discretionary challenge into a complaint about intrinsic admissibility came about: the judge was never in fact called upon to exercise his discretion in the light of the Admitted Fact agreed to by the applicant’s trial counsel.

28.  However, whether the complaint be one about judicial discretion or intrinsic admissibility, we do not accept that the prosecution was not entitled to adduce this evidence, or that defence counsel could not properly have made the admission he did.  Such an admission was both relevant to an issue in the case and admissible.

29.  Ms Draycott has informed us that she had since spoken with defence counsel at trial as to why he had made the admission in question, and we were told that he had formed the view that the judge was almost certainly going to rule in favour of the prosecution on the relevance of the September incident; consequently, he considered it prudent in the circumstances to pre-empt that possibility by making an admission in the more neutral terms that he did.  Although we did not have a communication from trial counsel in a proper form, in compliance with the decision of this Court in HKSAR v Apelete (No 1)^[24], Ms Ching took no issue with us receiving this information from the Bar table, since, from the respondent’s point of view, it merely confirmed that trial counsel had made a tactical decision to make the admission. 

30.  Ms Draycott has rightly made no complaint of flagrant incompetence in respect of trial counsel’s conduct and was bound to accept in argument before us that he had made a tactical decision to make the admission concerned, however much she herself may have disagreed with that course. Given that we regard the admission of evidence as to the September incident both relevant and admissible, we consider that not only was trial counsel correct to make an admission but he was astute to make it as neutral as it could be in the circumstances.  In the event, the admission merely referred to the relationship between the applicant and the deceased turning sour after he had “mistreated” her in early September.  “Mistreatment” connotes treating someone badly or wrongly.  It does not carry with it the implication of physical abuse as, arguably, “ill‑treatment” might.  Nor does it imply the use of violence. 

31.  It should further be remembered that, notwithstanding the applicant’s admission of facts which would have grounded allegations of assault and criminal intimidation (the two original charges) in the September 2013 application for a bind over order, he had also pleaded guilty before the present trial to the theft of the deceased’s mobile telephone, which he had then sold, and to taking her bank card, with which he had tried unsuccessfully to extract money from her account.  The jury knew none of these admissions to offences of dishonesty; and nor did they know that the September incident involved violence.  Yet, rather extraordinarily, the applicant received a full good character direction both in terms of credibility and propensity^[25]. Quite apart from the repeated instructions by the judge not to speculate^[26], we are satisfied that the jury could not have thought that the incident of September involved violence when they were being told to regard him as a person of good character who was thereby less likely to commit the offence that was then being alleged against him.

32.  Finally, and most importantly, the judge made it quite clear how the jury were to treat the September incident.  One of the concluding directions of his summing-up was in the following clear terms^[27]:

“In the course of the evidence you have heard reference to a September incident in which the defendant did not treat Arbe well. No details of the incident are disclosed to you. Reason simple – they are not relevant to this case, so you do not have to speculate what the incident was all about. The purpose of bringing this out is to tell you that the relationship of the defendant and Arbe turned downward since that incident. So, that is the only purpose. You should not use this evidence for any other purpose. More importantly you should not, because of such an incident, draw any adverse inference or hold any prejudice against the defendant.”

We have absolutely no doubt that the jury would have been faithful to that direction and would not have assumed that any violence was involved in the September incident.  All they would have understood is that whatever happened between the applicant and the deceased on that occasion, their relationship was never the same again.

33.  We do not accept the argument that the parties, by virtue of agreeing to the Admitted Facts in the terms concerned, thereby admitted the inadmissible.  Nor, for the sake of completeness, do we accept that the exercise of the judge’s discretion somehow miscarried, even though he was never actually called upon to exercise it.  But even if he had been called upon to exercise his discretion, we cannot see that he should have refused to admit the evidence in the neutral terms in which it was put forward, when coupled with the other directions he gave to ensure that the jury did not misuse such evidence.  For these reasons, we refuse leave to appeal on Ground 3.

Grounds 1 and 2

34.  It was Ms Draycott’s initial position that the judge was wrong to tell the jury, on no less than four occasions, that according to PW9, the applicant had said nothing to her about the deceased’s provocative words or conduct, when in fact PW9 had “simply said nothing about it one way or the other”^[28] and “was silent on the issue”^[29].  She submitted in conclusion that “PW9 said nothing at all about whether the applicant had told her of such taunting remarks or about an attack on the applicant by Arbe.  She did not confirm or deny that he had said anything about them, but rather was silent as to whether he had mentioned them or not”^[30].  In other words, the original complaint before us was that it was not correct for the judge to have converted the absence of any mention of provocation by PW9 into a positive statement that the applicant had never said anything about it to her.

35.  However, we do not accept that this was the effect of the evidence.  Had it been the applicant’s case that he did mention the deceased’s provocation to PW9, defence counsel at trial would have been failing in his duty if he had not put that vital matter to her.  However, a reading of the applicant’s own evidence-in-chief makes it clear why defence counsel did not put this matter to PW9^[31]:

“Q. ... Now, just going back to the part of the evening where – outside the Government Offices where you were sitting, was that the moment in time or the period in time when you told Ms Tsang about what you’d done?

A. Yes.

Q. And you told her in some detail?

A. I just told her that I killed someone. I went to her home to kill her.

Q. We’ve heard her evidence, but I’ll come back to that in a moment. So that’s where you told her most of the stuff because when you went to Bar Pacific, is it the case that you then didn’t discuss the matter any further?

A. Yes.” (Emphasis supplied)

The above answer in italics was later reiterated in cross-examination^[32].

36.  It thus becomes quite clear that it was never the applicant’s case that he had told PW9 about the deceased’s provocative words or conduct.  Moreover, in her evidence, PW9 recounted how she had actually asked the applicant “Why were you so impulsive?”^[33].  Rather tellingly, his answer was not that he had been provoked but that he felt very hard inside his heart after separating from the deceased^[34].  Yet, this would have been the moment to say something to PW9 about what the deceased had said or done, if in truth there had been any provocation by the deceased.  The first mention of any provocation, however, was to the police when he was arrested more than three years later.

37.  In light of this evidence, Ms Draycott refined her submissions to complain that the judge was nevertheless wrong to give undue emphasis to the differences between the applicant’s account to PW9 and his account to the police in the VRI, having told the jury not to hold against the applicant any differences between his evidence and what he said in his VRI. The judge gave the following directions to the jury^[35]:

“You may notice that the evidence of the defendant in court is much more detailed than what he told the police in the video‑recorded interview, particularly in relation to matters relating to provocation. Bear this in mind. Although the defendant attended the video-recorded interview voluntarily, he was under caution at that time. That is to say, he is or he was not obliged to say anything unless he wished to do so. He had the right not to say anything. It follows that he had the right not to give the full details about matters in relation to provocation in the video-recorded interview. So, the fact that the video‑recorded interview contains less details in relation to the matter of provocation than those in the evidence of the defendant in court, it is not a matter you should take into account when you assess the credibility and reliability of the defendant in respect of what he told the police and what he tells you in court.

Do not be led to believe that because something he tells you in court is not included in the video-recorded interview that he must not be telling the truth.”

38.  Later, the judge repeated the point^[36]:

“Now, you will remember that I have told you in considering the credibility and reliability of the defendant in what he told the police and in what he tells you in court, the fact that his evidence in court contains much more details than what he told the police is not a factor for you to take into consideration, but this does not apply to PW9. I have told you that in the video-recorded interview the defendant was under caution and he could choose not to disclose the details.

But the fact that he did not relate the details to PW9 is a factor you may take into consideration when you consider the credibility and reliability of the defendant in what he told the police and in what he tells you in court.”

39.  Finally, the judge reiterated his direction^[37]:

“I have told you that even though the defendant has given much more details about the case, particularly in relation to matters of provocation in his evidence in court than in the video-recorded interview, I have told you, you should not take this into account when you consider the credibility and reliability of the defendant as a witness. I have pointed out that this is because the defendant had the right to remain silent and in the video-recorded interview he might choose not to disclose the details in the video-recorded interview.

There is, however, a distinction between giving more details about an event in court than in the video-recorded interview and saying something in court which is inconsistent with or in contradiction to what is said in the video-recorded interview.  If what is said by the person in the video-recorded interview is inconsistent with or contradicting to what he says in court, it is of course a factor you have to consider when you determine the truthfulness of what the person said in the video-recorded interview and in court.”

40.  In our judgment, these directions were far more favourable to the applicant than they arguably should have been under the principles explained by the Court of Final Appeal in Lee Fuk Hing v HKSAR^[38]. In his VRI, the applicant had answered every single question that was put to him over more than two hours of interrogation.  At no stage did he ever avail himself of his right of silence, and on no occasion did he ever decline to answer any question.  Nor did he exercise his right of silence when he was first arrested.  As the Court in Lee Fuk Hing held^[39]:

“... if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross-examine and comment upon that statement and its relevance to the defence. The judge may also invite the jury to draw relevant and fair inferences even if they are adverse to the accused.”

41.  The jury were in law entitled to draw relevant and fair inferences from the differences between the applicant’s elaborate and detailed account in evidence and what he told the police in the VRI when given the opportunity to explain what had taken place at the time of the killing; for example, in relation to the deceased’s alleged taunts about his sexual performance when compared with PW4.  Yet, the jury were directed, on no less than three occasions, that they could not take such inconsistencies into account. Such directions were clearly very favourable to the applicant.  And since they were more favourable than they should have been, the undue emphasis about which Ms Draycott complains is based upon a false premise. 

42.  In any event, the jury were clearly entitled to take into account the fact that the applicant had failed to say anything whatsoever to PW9 about the alleged provocation of the deceased.  Even then, the judge presented the jury with a possible excuse for his failure, even though the applicant had never supplied any such excuse in evidence himself:

“As I point out when I deal with murder, you have, however, to bear in mind that part of those remarks involved the comparison of the ability of the defendant and Arbe’s new boyfriend to satisfy Arbe sexually and the defendant might find it embarrassing to tell PW9 this particular remark. It is also possible that the defendant, for all sorts of reasons, chose not to tell the full details to PW9, or PW9 had not told the whole truth in court. That is, of course, a matter for you to decide after consideration of the evidence of the case as a whole.”

43.  There is nothing at all in Grounds 1 and 2 which, with respect, were not based upon a proper reading of the evidence, or a correct assessment of what the Court of Final Appeal had to say in Lee Fuk Hing.

Grounds 4, 5, 6 and 7

44.  We shall deal with Grounds 5, 6 and 7 first, all of which are predicated on the judge’s allegedly mistaken understanding of PW9’s evidence.  The point is this.  It is suggested that PW9 gave evidence that the applicant had told her, at their meeting outside the Government Offices on 6 December 2013, that he knew the deceased would leave her apartment at 4 pm on 4 December to go to work.  When she opened her door, he rushed into the flat at 4 pm.  Yet, the CCTV evidence revealed that the applicant had in fact exited the lift on the floor where the deceased lived much earlier at 1:53 pm. Furthermore, it was the prosecution case theory, by virtue of the deceased’s trembling voice when she spoke to PW7 to request sick leave at about 3:13 pm, that the applicant was already inside the deceased’s apartment by that time. Therefore, by wrongly summarising the effect of PW9’s evidence, the judge not only blunted the attack on PW9’s credibility but neutralized the effect of the evidence of these times, which were consistent with the applicant’s account.

45.  The judge’s direction on the point which is impugned was as follows^[40]:

“(PW9) says that the defendant did not tell her that he rushed into the house at 4 pm. What the defendant told her was that Arbe would go to work at 4 pm on that day and he would wait for her outside her door at that time.”

Ms Draycott submits that this is not simply a misstatement of the evidence but a significant misdirection because PW9 did claim that the applicant told her he had rushed into the apartment at 4 pm, which cannot, given the evidence of PW7 and the CCTV times, have been correct.

46.  We have examined PW9’s evidence on this matter carefully.  Initially, PW9 said nothing in examination-in-chief about the time the applicant said he actually entered the deceased’s apartment.  All he had told her was that, having checked her roster and ascertained her working hours, he waited at the door to the apartment and dashed in when she opened it^[41]. Later in examination-in-chief, when asked if the applicant had told her the time he had killed the deceased, PW9 responded, with an answer that was not exactly an answer to the question, “He told me that he waited for Arbe at her entrance at about 4 pm”^[42].

47.  In cross-examination, the witness was asked to clarify whether it was “at 4 pm he rushed into the flat?”, to which she gave the rather odd and hardly unequivocal answer, “Basically, yes”^[43].  When she was further tackled on the time, the exchange between defence counsel and the witness went as follows[44]:

“Q. I’m suggesting that the defendant never mentioned a time.

......

A. Are you referring to the night he said about he rushed in killing ...

Q. Yes. All I’m suggesting, Ms Tsang, is that the time, 4 pm, is not – he never gave you a time as 4 pm. That’s all. That’s all I’m suggesting.

A. He didn’t say it like that. He didn’t say, “I rushed in at 4 pm.” He didn’t say that.” (Emphasis supplied)

It was plainly this last answer to which the judge was referring when he reminded the jury of what PW9 had said on this issue[45].

48.  When the evidence is looked at in its full context, we cannot see anything wrong with the judge’s summary of the witness’s evidence. PW9 had indeed made clear in cross-examination, whatever impression she may or may not have earlier given, that the applicant did not tell her in terms that he rushed into the deceased’s apartment at 4 pm.  Ultimately, as the judge told the jury at the outset of his summing-up, questions of fact and credibility – which this clearly was – were for the jury to determine.  They would have been aware of this issue and the evidence which bore on it; and they would also have known, as was explained to PW9 by defence counsel^[46], that she had not been made privy to the times shown in the CCTV evidence.

49.  There is no merit in these grounds of appeal.

Ground 4

50.  Ms Draycott submits that the jury were never urged by the judge to be cautious about PW9’s account of the conversation she had had with the applicant, given that she admitted that at the time she did not believe what the applicant had told her outside the Government Offices on the night of 6 December 2013; and given that she must have drunk a significant amount by the end of the evening together with the applicant.  She argues that PW9 would have put what the applicant was saying out of her mind more readily if she thought he was not being serious and had more difficulty in remembering what he had told her if she thought he was joking.

51.  With respect, such arguments are more fit for a jury than this Court and, in any event, the propositions which underlie them are highly debatable.  The best people to resolve questions of how and why people react in odd or unexpected situations are ordinary jurors using their collective common sense and experience of life and human behaviour.  We cannot imagine that the context of the conversation and how PW9 responded would have been ignored by them as they listened to her evidence and later deliberated upon it.

52.  We find no substance in this ground of appeal.

Conclusion

53.  In our judgment, the applicant received an extremely fair trial and summing-up.  Indeed, for the reasons we have explained, the directions given to the jury were more favourable to the defence than they might have been.  Despite Ms Draycott’s forceful submissions on the applicant’s behalf, we refuse leave to appeal on all of the grounds of appeal against conviction and, accordingly, dismiss the appeal.

[1] AB, p 10, Admitted Facts (Part 1) para 3.

[2] AB, p 70Q-S.

[3] CCTV evidence showed that the applicant left the lift inside the building at about 1:53 pm: AB, p 581H.  He entered the deceased’s apartment at about 2:15 pm (AB, p 90I-J; p 531N-T).

[4] AB, p 72F-O.

[5] AB, p11 Admitted Facts (Part 1) para 5.

[6] AB, p13 Admitted Facts (Part 1) para 15.

[7] AB, pp69T-70B.

[8] AB, p 47E-M.

[9] AB, p 86A-B; p 606I-K.            

[10] AB, p 14, Admitted Facts (Part 1), para 17(b).

[11] AB, p 308 Entry 60; p 311, Entry 88.

[12] AB p 308, Entry 60.

[13] AB, p 313, Entry 126.

[14] AB, p 314, Entry 132.

[15] AB, p 314, Entry 138.

[16] AB, p 315, Entry 144.

[17] AB, p 316, Entries 150-152.

[18] AB, p 90I.

[19] AB, p 90N.

[20] AB, p 91J.

[21] AB, p 91D-I; pp 536K-537L.

[22] AB, p 91J.

[23] AB, p 10, Admitted Facts, para 3(b).

[24] HKSAR v Apelete (No 1) [2019] 5 HKLRD 574.

[25] AB, pp 31R-32H.

[26] AB, p 30P-Q; p 39M-O; p 98R-S.

[27] AB, pp 98Q-99C.

[28] Submission for the applicant, para 1.

[29] Submission for the applicant, para 2.

[30] Submission for the applicant, para 4.

[31] AB, p 545M-R.

[32] AB, p 602R-S.

[33] AB, p 474A-B.

[34] AB, p 474T-U.

[35] AB, pp 38S-39I.

[36] AB, p 61L-R.

[37] AB, pp 88O-89D.

[38] Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600.

[39] Ibid., at [57].

[40] AB, p 76J-L.

[41] AB, p 473K-M.

[42] AB, pp 476R-477A.

[43] AB, p 514J-K.

[44] AB, pp 514U-515F.

[45] At [45] ante.

[46] AB, p 514M-N.