HKSAR v. CHAN KAM SHING

CACC 231/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 231 OF 2014

(ON APPEAL FROM HCCC NO. 365 OF 2013)

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JUDGMENT

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

1.  The applicant sought leave to appeal against his convictions on 17 June 2014 after trial by M. Poon J and a jury of the murder of Kwok Hin Ching (“the deceased”), contrary to Common Law and of acting as a member of the Sun Yee On Triad Society, contrary to section 20(2) of the Societies Ordinance, Cap. 151.

The Trial

2.  There was no dispute that at about 06:10 hours on the morning of 5 December 2011 the deceased was certified to be dead at Tuen Mun Hospital.  He died from both blunt force injuries and cut wounds to his body that had been inflicted on him in an attack by a group of men at about 01:00 that morning in San Sau Street near Tseng Tau Tsuen, Tuen Mun.  The deceased was attacked by four or five persons with knives.  Whilst he was being helped to walk away by two others and was in the road, he was knocked to the ground by a seven-seater vehicle.  Whilst in a prone position on the ground, he was run over by that vehicle, which had been reversed by the driver before doing so.

The prosecution case

3.  The core of the prosecution case lay in the evidence of PC 7475.  Between May 2011 and December 2012, PC 7475 acted as an undercover agent.  His duties required him to seek to infiltrate triad societies and to gather evidence of the criminal activities of their members.

4.  In the course of those duties, PC 7475 came to know a person called Siu Kit.  His own nickname was ‘Ah Man’ or ‘Man Chai’.  PC 7475 said that on 31 October 2011, Siu Kit introduced the applicant to him, as ‘Yu Ngau’, whom they had chanced upon outside a Fortress shop at Trend Plaza, Tuen Mun. 

5.  PC 7475 said that he met the applicant again shortly after mid-night on 16 December 2011, some 11 days after the deceased had been killed.  That meeting happened at the Luxe Bar in Tung Choi Street, Mongkok, where the officer met Siu Kit, the applicant, and another person called Ah Yu.  The admissions made by the applicant in the conversation that ensued were the crux of the prosecution case against him.

6.  Once they were seated at a small table, at Siu Kit’s instigation, they all move closer to one another.  Then, Siu Kit spoke in a low voice, asking the applicant whether he had returned home to Tuen Mun in the last couple of days.  PC 7475 said that the applicant looked nervous and said he had only gone home for a shower and to change his clothes.  PC 7475 asked him why.  The applicant said it was because of the incident of the chopping of Kwok, adding that he and Ah Yu had not taken part in the chopping of Kwok.  However, the police had been looking for the applicant at his home every day, but nobody had looked for Ah Yu at his place.  Then, Siu Kit said words to the effect that the applicant had gone to the scene.  On hearing that, Ah Yu nodded and smiled.

7.  In his evidence in chief, the following dialogue occurred between the witness, counsel for the prosecution and the judge:[1]

“ A. And then Yu Ngau said, actually as far as the incident was concerned it was because previously he together with Ah Yu had been under Kam Mo-cheung of Sun Yee On in Tuen Mun, and he continued to speak. He said on this occasion Kam Mo-cheung had given an order that the followers of Fei Cheung were to be chopped.

Court: Fei Kit.

Mr Tam: Fei Kit.

Interpreter: Fei Kit, I’m sorry.

Q. Yes, carry on.

A. He then said on that day Tai Kau told everybody to come together in Tin Shui Wai, in Tuen Mun.

Q. Yes?

A. And then he continued to speak. He said the two head followers of Kam Mo-cheung, whose name were Tai Kau and Fei Chu, the two of them travelled on private cars to lead the other followers. And he continued to say that Fei Chu had told them, amongst them was Yu Ngau, to bring along certain tools.

Q. What tools, do you remember?

A. He said Fei Chu had told them to bring along certain tools which include knives, water-pipes and torch.

Q. Yes?

A. And then Yu Ngau said he himself brought along a knife and he got onto the private car of Tai Kau to go together with him to different places to look for the followers of Fei Kit.

Q. Yes?

A. But he said as for the private car of Fei Chu they managed to find the group of people including Kwok Ching in Leung Tin Tsuen. And then those people on the private car together with Fei Chu they chopped Kwok Ching. And Yu Ngau said as soon as they learned of that their private car immediately went to Leung Tin Tsuen with a view to assist them to help them. And he said that by the time when they arrived at that place he already saw that somebody had been chopped to the extent that he was lying on the ground. And then Yu Ngau said that they picked up the fellow followers to leave Leung Tin Tsuen.

Q. In what?

A. That means they also boarded the private car, that is, the private car picked them up and then left Leung Tin Tsuen.  And then he also said that the private car was set on fire.  I remember that Ah Yu replied to that.  At that time, Ah Yu said when Kam Mo-cheung blew the whistle there would be no reason for them not to assist. And Ah Yu continued to say that within the district the followers of Fei Kit were very cheeky and arrogant.”

8.  PC 7475 testified of a total of 14 occasions on and between 31 October 2011 and 25 February 2012 on which he had met the applicant.  On 17 December 2012 he identified the applicant as one of the persons he had met whilst acting as an undercover police officer.  In all, he picked out 27 such persons from a total of 84 participants.  Then, on 31 January 2013 he identified the applicant at an identification parade held specifically in connection with the murder of the deceased.

Eyewitnesses

9.  Eyewitnesses to the unfolding events that night, most of whom were residents of Leung Tin Tsuen, also testified in the prosecution case.  They gave evidence of their observations at different times and places of different parts of those events.  Their witness statements were adduced into evidence, pursuant to section 65B of the Criminal Procedure Ordinance, Cap. 221, after which they gave oral evidence.

10.  Mr Liang Li Chuang (PW2), a taxi driver, said that after he parked his taxi, with the vehicle registration number KA 2070, shortly after 01:00 in San Sau Street, near Tseng Tau Tsuen and Leung Tin Tsuen, Tuen Mun he saw a group of 10 men carrying bamboo poles chasing after a teenage boy towards the exit to the Light Rail Transit Railway.  Then, he saw a motorcar drive past him into Tseng Tau Tsuen.  Next, he heard the loud noise of wooden poles striking an object and breaking glass coming from the direction in which the motorcar had been driven.  Afterwards, he saw the motorcar being reversed as it was chased by a group of young men, who struck the vehicle blows with wooden poles.  First, the rear of the car crashed into some metal railings.  Then, it was driven forward and it collided into another parked taxi, causing that taxi to collide with his own taxi.  Next, he saw another motorcar knock down a boy who was standing next to the driver’s side of the motorcar that had crashed.  

11.  There is no dispute that Mr Liang’s taxi was parked next to Lamp Post FC 4684, pointing in the direction of the exit of San Sau Street which gives access across the Light Rail Railway track to Castle Peak Road.  The motorcar that had crashed into the railings and the taxi had the vehicle registration number PX 159.  The rear windscreen of PX 159 was missing entirely, the driver’s side front and rear windows were smashed and the front windscreen had four sites of apparent impact with blunt objects, which had caused the glass to splinter, so that fissures were created in the glass which radiated outwards in all directions.

12.  Madam Hui Fung-lin (PW7), a resident of 41, Leung Tin Tsuen, near to the exit to Castle Peak Road, was awakened by a loud bang.  She said that she saw that a dark coloured motorcar had rammed into a taxi and that 10 odd people were attacking the motorcar with wooden poles.  Then, that group scattered.  Next, she saw three or four men armed with knives running towards the exit of Leung Tin Tsuen in the direction of Castle Peak Road.  After that, she saw two young men, armed with knives running past her home.  Finally, she saw a dark coloured motorcar speed along San Sau Street towards Castle Peak Road.

13.  Ms Ho Sin-yee (PW6), a resident of 44, Leung Tin Tsuen also situated near to the exit to Castle Peak Road, said that from the rooftop of her house she heard two loud bangs.  She saw a champagne-gold coloured car, which was stationary at the exit of Leung Tin Tsuen facing out towards Castle Peak Road.  About 20 persons were in San Sau Street.  Four or five of them attacked a person lying on the ground in the road.  Then, she saw two persons holding long silvery objects, which they raised up.  They walked next to the person lying on the ground.  Fearful that they were about to attack that person she looked away, but made a report to the police.

14.  For his part, Mr Li Kin Chung (PW3), a resident of 65, Leung Tin Tsuen which is situated on the same side of San Sau Street and nearby to Lamp Post FC 4685, said that having heard a loud bang, which he took to be the sound of colliding vehicles, he saw a dark coloured 7-seater vehicle with silver bumpers reverse at quite a high speed past his house.  It reversed into a refuse collection area, on the opposite side of the road from his house, where it was surrounded by a group of 10 odd young men who attacked it with wooden poles. 

15.  He drew the attention of his girlfriend, Ms Tsang Wing Yan (PW4) to what was happening.  They saw the dark coloured 7-seater vehicle return, now driving forward past Mr Li’s house at a high speed, followed by the group of young men.  The 7-seater vehicle was driven in the direction of a group of three men who were walking in the middle of San Sau Street.  The one in the middle was being supported by his companions.  The 7-seater vehicle collided with him, knocking him down, whilst his companions managed to move out of the path of the vehicle.  Next, the 7-seater vehicle was reversed and then driven forwards, running over the person who had been knocked down and was lying on the ground, after which it sped towards the exit of Leung Tin Tsuen. 

16.  Mr Liu Shek Shan (PW10), a resident of 58, Leung Tin Tsuen, said that he was awakened by the sound of loud bangs which he took to be vehicles colliding.  He saw a motorcar, either a 4-wheel drive vehicle or a 7-seater vehicle, reversing at a high speed towards the entrance to a car park next to the refuse collection centre as it was attacked by a group of 20 odd men armed with long objects.  Then, the vehicle drove forward out of his vision towards the exit to Castle Peak Road, at which point he heard the sound of a collision.  Next, he saw the vehicle reverse again, after which it sped forward in the direction of the exit to Castle Peak Road.  Throughout, the vehicle was attacked by the group of men.

17.  PC 1105 attended the scene of the attack and drew a sketch[2] of the position in which he found the deceased, namely face up in San Sau Street with his head toward Lamp Post FC 4685, situated on the opposite side of the road from the crashed motorcar PX 159 and between it and the exit from Leung Tin Tsuen to Castle Peak Road.

18.  It was an admitted fact that ambulancemen had attended to the deceased in San Sau Street at 01:32 on 5 December 2011.  They took the deceased to the Accident & Emergency Department of Tuen Mun Hospital where, although attempts were made to resuscitate him, he was certified dead at 06:10 hours.

19.  Dr Wong Hon Man[3], a forensic pathologist performed an autopsy on the deceased.  It was his opinion that the deceased died from (i) multiple blunt force injuries with skull fractures; and (ii) cut wounds, including a stab wound to the left chest that punctured the lower lobe of the left lung, causing it to collapse.  In his opinion, both types of injuries were potentially fatal.

20.  It was an admitted fact that at 12:30 p.m. on 31 January 2013 the applicant was arrested by Detectives Sergeant 7895 in connection with the murder of the deceased.[4] The words of caution having been administered to the applicant, he said that he was at home at Yau Oi Estate at 01: 20 a.m. on 5 December 2011.

21.  Similarly, it was an admitted fact that a video recorded interview under caution was conducted of the applicant between 2:40 p.m. and 2:57 p.m. on 31 January 2013.  The applicant denied any knowledge of a Honda motorcar with the vehicle registration number PX 159. He admitted that his nickname was Yu Ngau and having met a person called Man Chai, who had been introduced to him by Siu Kit.  He was not familiar with Man Chai. When the nub of the alleged conversation that he had had with PC 7475 in the early hours of 16 December 2011 at the Luxe Bar was put to the applicant, he denied having said what was attributed to him.  It was the prosecution case that those denials were untrue.

The defence case

22.  At the close of the prosecution case, the judge rejected a submission by Mr Donald that there was no case to answer on Count 1.  Mr Donald submitted that there was no evidence of either assistance or encouragement given or made by the applicant to the principal parties in the offence.  Relying on the judgment of the Court of Appeal of England and Wales in R v Stringer [5], he submitted that the proof was necessary that the applicant had communicated such encouragement as was relied upon to the parties who were principals in the commission of the offence.  There was no such evidence.  By the time of the arrival of the applicant, the deceased had been chopped and was lying on the ground.

23.  The applicant did not avail himself of his right to give or call evidence in the defence case.  It was an admitted fact that the applicant had a “clear criminal record in Hong Kong.”  The applicant relied upon his out-of-court denials to the police of having been involved in the murder in any way.  In addition to his denials on arrest and in the subsequent video record of interview, the applicant pointed to his response having been cautioned following PC 7545’s identification of him at the identity parade on 31 January 2013, namely “I did not participate in this matter and was not at the scene I have a witness and will be able to say I was not present at the scene”.

24.  At the behest of the applicant, it was an admitted fact that Wong Chun Kit had arrived with other persons at the scene of the killing in the early hours of 5 December 2011.  Although Wong Chun Kit was charged with the murder of the deceased, the prosecution accepted Wong’s plea of guilty to manslaughter, of which offence he was convicted.  The prosecution did so on the basis that Wong Chun Kit had never been told the specific purpose of the journey to the scene of the killing and had only foreseen that some harm, less than grievous bodily harm, would be done to the deceased.

25.  Further, it was an admitted fact that at around 9:10 p.m. on 4 December 2011, the applicant had been amongst a group of young people whose identity had been checked by police officers at the Hung Sing Restaurant in Yau Oi Estate, but no further action had been taken by the police.

26.  In his closing speech, Mr Donald submitted on behalf of the applicant that it was inherently improbable that the applicant would have made such serious and important admissions to which PC 7475 testified, on only the second occasion they had ever met.  Alternatively, perhaps PC 7475 had mistaken the applicant for someone else, who had made those admissions.  Then, it was submitted that, even if the jury accepted PC 7475’s evidence of their conversation, there was still no evidence that the applicant had known beforehand that an attack upon the deceased was to take place. Further, the circumstances in which the deceased was killed were unclear.

Grounds of appeal

27.  Ms Margaret Ng, on behalf of the applicant, advanced multiple grounds of appeal against conviction.  By Ground 1, it was submitted that the judge erred in ruling there was a case to answer, given that there was no evidence that the applicant was present at the scene of the attack on the deceased or that he had done any act which caused the death or injury of the deceased.  Further, it was submitted that there was no evidence, nor was it the prosecution case, that the applicant did anything to assist or encourage the assault.  Accordingly, she said that the applicant “cannot be said to have participated in the joint enterprise of Kwok’s murder”.

28.  By Ground 2, it was submitted that the judge had misdirected the jury in directing them that the alleged role of the applicant was to be likened to the roles of a lookout or the driver of a getaway car in the commission of a robbery.  Those persons played a part in the commission of the actus reus of the offence.  By Ground 3, the applicant complained that the judge misdirected the jury in telling them that it was PC 7475’s evidence that the applicant had admitted arming himself on the instructions of others to chop the followers of Fei Kit and setting off in a vehicle with others in pursuit of those persons.  It was a matter for the jury, having regard to the evidence of PC 7475 that he had no memory of the alleged crucial conversation and that he had relied on his note in the Occurrence Book in giving his evidence, to determine what if any weight was to be given to the evidence and what inferences to draw.  Further, the judge erred in refusing the request of the jury to be provided with the audio recording of PC 7475’s evidence and in merely re-reading her original direction to the jury.

29.  By Ground 4, it was submitted that the judge erred in not excluding the evidence of the second identification parade, at which PC 7475 identified the applicant as being involved in the killing of the deceased.  Alternatively, she failed to give the jury appropriate directions, warning them of the dangers of relying on that evidence.

30.  By Grounds 5 and 6, it was contended that the judge failed to give the jury full and adequate directions in respect of the evidence of PC 7475, in particular in failing to remind them of evidence relevant to weaknesses in his account.  First, that the crucial conversation had taken place after midnight in a bar between four persons and that PC 7475 had not made a note of it in the Occurrence Book until three and a half hours later.  Secondly, Ms Ng said that there was “no direct or objective evidence capable of supporting” PC 7475’s evidence.  Thirdly, that there were numerous discrepancies between the evidence of the eyewitnesses and the account contained in the alleged admission of the applicant.  The judge failed to draw to the attention of the jury, those points against the prosecution case and those points in favour of the defence case, so that the “summing up was effectively a reply to the Defence case on behalf of the Prosecution”. In the result, the summing up was “unfair and unbalanced”.

The submissions of the respondents

31.  Mr Wesley Wong SC submitted that the prosecution case at trial against the applicant in respect of the killing of the deceased was that he was a party to a joint enterprise in which it was agreed and intended that followers of Fei Kit be attacked with weapons, including knives.  Presence at the scene of the crime was not always necessary for criminal liability in a joint enterprise.  For that proposition, he relied on the judgment of Bokhary PJ, with whom all the other judges agreed, in the Court of Final Appeal in Sze Kwan Lung v HKSAR.[6]  Further, he pointed to the judgments of the Court of Appeal of Victoria in Likiardopolous v R [7] and Arafan v R [8] as endorsing that proposition, in particular that the offence was made out, notwithstanding the fact that the applicant was not present at the scene of the commission of the offence, if the common purpose had been agreed upon between the parties and the applicant had performed some conduct to contribute to the commission of the crime.

32.  Mr Wong submitted that the judge had made it clear to the jury that the main issue in the case was whether or not they could accept as true the evidence of PC 7475 of the alleged conversation with the applicant in the Luxe Bar.  She said so in terms.[9]

A consideration of the submissions

The law

33.  In his judgment, in Sze Kwan Lung v HKSAR Bokhary PJ addressed the issue of joint enterprise, although he acknowledged that it was not necessary to do so to dispose of the appeal because of the Court’s determination that the judge had misdirected the jury as to the approach to defence evidence.  The Court of Appeal had quashed the 1^st appellant’s conviction for murder and substituted a conviction for manslaughter, affirmed the convictions of the 2^nd to 7^th appellants for manslaughter and affirmed all the convictions for arson.  The Court of Final Appeal allowed the appeals of all the appellants and, having quashed all their convictions, ordered that they be re-tried on two counts of manslaughter and one count of arson.

34.  The charges brought against the appellants arose out of the death of an Immigration officer and Mr Lam, a protester, as a result of a fire at the Immigration Tower in 2000.  A number of persons, originally from the Mainland, had gathered at the building to press their claims for the right of abode in Hong Kong.  It was the prosecution case that Mr Lam and each of the 2^nd to 7^th appellants was holding a bottle containing thinner.  They were said to be acting in the course of a joint enterprise to stage a violent protest by starting a fire with intent to kill or to cause really serious bodily harm.  A fire ensued in the room in which many of the protesters were with the Immigration officer who died, after Immigration officers had begun to evict the protesters.  The prosecution as unable to say which of the persons within the room had started the fire.  The 1^st appellant had been evicted from the room and was in the corridor outside uttering threats of death by fire, which could not be heard by those remaining in the room, at the time of the fire.

35.  Noting that joint enterprise “is an expression used to denote the conduct of two or more persons who take part together in a course of criminal conduct”, Bokhary PJ said:[10]

“ …the doctrine is distinct from the common law principles of aiding, abetting, counselling or procuring. Each participant is criminally liable for all the acts done in pursuance of the joint enterprise. And whether or not he intended it, he will be criminally liable for any such act if it was of a type which he foresaw as a possible incident of the execution of the joint enterprise and he participated in the joint enterprise with such foresight.”

36.  Of the issue of the presence of the defendant at the time at which the joint enterprise is carried into effect, he said:[11]

“ Usually all the participants are present when the crime is committed. But in Osland’s case McHugh J said at p.350 that “[w]here the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other’s acts and the case for doing so is even stronger when they are at the scene together.” (Emphasis supplied). That indicates that presence is not invariably essential. Indeed, as the High Court of Australia pointed out in McAuliffe v. R (1995) 183 CLR 108 at p. 114, their Honours had held in Johns v. R (1980) 143 CLR 108 that it is not necessary for a party to be present at the scene of a crime to be acting in pursuance of a common purpose with others who were present. In their joint judgment in Osland’s case Gaudron and Gummow JJ said (at pp 329-330) that the reasoning in McAuliffe’s case “would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied.”

37.  Bokhary PJ went on to express agreement with:[12]

“ …the statement in Smith & Hogan: Criminal Law, 10^th ed. (2002) at p.161 that

“ … once a common purpose to commit the offence in question is proved, there is no need to look further for evidence of assisting and encouraging. The act of combining to commit the offence satisfies these requirements. Frequently it will be acts of encouragement which provide the evidence of the common purpose.” ”

He concluded:[13]

“ Just because he had been evicted from Room 1301 immediately before the fire broke out, it does not mean that the 1^st appellant cannot be guilty of manslaughter or arson in the present case. The preponderance of authority is to the effect that presence is not always necessary for criminal liability under the doctrine of joint enterprise. And even if presence were necessary, the 1^st appellant can, in all the circumstances, be regarded as having been present.”

38.  In Johns (TS) v The Queen[14] the High Court of Australia was concerned with two questions concerning the doctrine of common purpose.  First, whether it extended to an accessory before the fact.  Secondly, whether it extended to the possible consequences of the joint enterprise.  Those issues arose out of a murder at Potts Point, Sydney committed in the course of a planned robbery.  Watson shot and killed Morriss, a “fence” with whom he had dealt in stolen goods.  It was planned that Watson, who was armed with a loaded pistol, together with Dodge, would pretend to Morriss that he had stolen property to sell and then rob him at gunpoint.  The appellant’s role was to deliver Watson by car to King’s Cross, Sydney, where the latter met and joined Dodge in Dodge’s car, in which they travelled to the residence of Moriss at Potts Point.  After the robbery it was planned that Watson and Dodge would meet the appellant and hand over to him the proceeds for him to hide.  The appellant knew that Watson was armed with a loaded firearm and that he was quick-tempered and could become violent.  Watson did meet the appellant briefly after the abortive robbery and told him it had “gone bad” and drove off.

39.  On those facts, Dodge was a principal in the second degree and the appellant an accessory before the fact.  In his directions to the jury the judge did not distinguish between them in expressing the meaning and effect of the doctrine of common purpose.  Of the argument, that the judge ought to have distinguished between the two of them and directed the jury that to find the appellant guilty it was necessary for the jury to conclude “it was a likely or probable consequence of the way in which crime was to be committed, that is, of the common purpose, that the gun would be discharged so as to kill the deceased”, rather than an act contemplated as a possibility or incidental to the execution of the purpose or design, Mason, Murphy and Wilson JJ said in their joint judgment:[15]

“ The argument does not reveal any reason why as a matter of legal principle or legal conception there should be such a difference. True it is that the common law distinguishes for the purposes of classification between the accessory before the fact and the principal in the second degree, but this classification is quite unrelated to the doctrine of common purpose. The object of the doctrine is to fix with complicity for the crime committed by the perpetrator those persons who encouraged, aided or assisted him, whether they be accessories or principals. Broadly speaking, the doctrine looks to the scope of the common purpose or design as the gravamen of complicity and criminal liability. There is nothing in this to suggest that the criterion of complicity and liability should differ as between accessory and principal in the second degree. If they are both parties to the same purpose or design and that purpose or design is the only basis of complicity relied upon against each of them, there is no evident reason why one should be held liable and the other not. In each case liability must depend on the scope of the common purpose. Did it extend to the commission of the act constituting the offence charged? This is the critical question. It would make nonsense to say that the common purpose included the commission of the act in the case of the principal in the second degree but that the same common purpose did not include the commission of the same act in the case of the accessory before the fact.”

40.  In McAuliffe v R, the High Court of Australia said[16]:

“ The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms - common purpose, common design, concert, joint criminal enterprise - are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission [17].

But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others.  Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime.  The understanding or arrangement need not be express and may be inferred from all the circumstances.  If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission [18].”

41.  The Court went on to note of the decision in Johns:

“ Two questions arose in Johns (T.S.) v The Queen concerning the doctrine of common purpose. The first was whether the doctrine extended to an accessory before the fact. The Court held that it did and so held that it was not necessary for a party to be present at the scene of a crime to be acting in pursuit of a common purpose with others who were present.

The second question was whether the scope of the common purpose was confined to the probable consequences of the joint criminal enterprise or whether it extended to the possible consequences.  The Court held that the scope of the common purpose did extend to the possible consequences of the criminal venture, but, accepting that the test was a subjective one, held that the possible consequences which could be taken into account were those which were within the contemplation of the parties to the understanding or arrangement.”

42.  In Osland v R [19], Mrs Osland was present when, pursuant to their agreement, her son bludgeoned her husband to death.  First, she had had rendered him stupefied by the covert administration of drugs.  In the joint judgment of Gaudron and Gummow JJ in the High Court of Australia, in which they were in the minority but on a different point, the passage cited earlier from the judgment of the Court in McAuliffe was quoted and analysed.  Of the two bases there identified on which criminal liability might be established, namely as a secondary party or by common purpose shared with the principal offender or with that offender and other offenders, Gaudron and Gummow JJ said:[20]

“ It is to be observed that in this passage reference to presence at the scene was made with respect to the case of a principal in the second degree. The reference was not repeated when dealing with liability established by reason of a common purpose. Rather, in a footnote, the Court, by way of comparison, referred to the statement of principle by Smith J in R v Lowery and King (No 2).[21] Smith J did propound the principle in terms involving a presence at the scene of a crime.”

43.  In the result, they concluded:[22]

“ …principle dictates the conclusion that those who form a common purpose to commit a crime together are liable as principals if they are present when the crime, or any other crime within the scope of the common purpose,[23] is committed by one or more of them. The crime having been committed in accordance with the continuing understanding or arrangement, all are equally guilty as principals regardless of the part played by each.[24] That result follows from the reasoning in McAuliffe v The Queen.[25] Indeed, that reasoning would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied. The appellant’s submissions on this aspect of the case proceeded upon a false basis.”

44.  In his judgment, McHugh J said:[26]

“ This Court had earlier applied the principle to the case of an accessory before the fact engaged in a joint criminal enterprise. In Johns v The Queen[27] Mason, Murphy and Wilson JJ said:[28]

“ In our opinion these decisions support the conclusion reached by Street CJ, namely, ‘that an accessory before the fact bears, as does a principal in the second degree, a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention - an act contemplated as a possible incident of the originally planned particular venture’. Such an act is one which falls within the parties’ own purpose and design precisely because it is within their contemplation and is foreseen as a possible incident of the execution of their planned enterprise.” ”

45.  Later, McHugh J went on to state:[29]

“ Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other’s acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree.” [Italics added.]

46.  In his judgment in the High Court of Australia in Gillard v R[30] Hayne J considered the effect of the unanimous judgment of the Court in McAuliffe.  In his judgment, Gummow J agreed expressly with Hayne J’s analysis [31], whilst Gleeson CJ and Callinan J adverted to that part of the judgment of Hayne J without disagreement.[32]  For his part, noting criticism of the Court’s decision in McAuliffe, Kirby J expressed regret that the case had not been conducted in a way which would have afforded the Court an opportunity to revisit that decision.  His concern was that criminal culpability was visited on an appellant who was a party to an enterprise where a crime was committed, but which was outside the scope of the common purpose of the parties, if “…it was contemplated by the appellant as a possibility in the carrying out of the enterprise in which the appellant continued to participate on such a basis and with such knowledge.[33] (Extended common purpose)[34]”.[35]

47.  In Gillard, the appellant had stolen a van and driven his co-defendant Preston to a vehicle repair shop where he disembarked and on entering the shop killed not only Knowles but also another man and shot at a third man with a shotgun.  The appellant was convicted of two counts of murder and one of attempted murder.  The prosecution case was that they were each party to a joint enterprise to kill Knowles.  The appellant’s case was that he did not know that Preston was armed and was a party with Preston only to a planned robbery of persons on those premises.  The Court was unanimous in quashing the convictions of murder and ordering a retrial, having determined that the trial judge erred in failing to leave manslaughter as alternative verdicts on the two counts of murder and that it was not appropriate to apply the proviso.

48.  In his judgment in restating the principle of joint enterprise articulated by the Court in McAuliffe, Hayne J said:[36]

“ As was pointed out in McAuliffe,[37] the terms “common purpose”, “common design”, “concert”, “joint criminal enterprise” are used more or less interchangeably to invoke a doctrine by which the complicity of a secondary party in the commission of a crime may be established. It is a doctrine which is separate from the liability of an accessory before the fact, who counsels or procures the commission of the crime; it is separate from the liability of a principal in the second degree, who aids or abets in the commission of the crime. Joint criminal enterprise, or acting in concert, depends upon the secondary party (here, the appellant) sharing a common purpose with the principal offender (here, Preston) or with that offender and others.[38]

In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission.[39]

The doctrine has further application. It is not confined in its operation to the specific crime which the parties to the agreement intended should be committed. “[E]ach of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose”.[40] The scope of the common purpose is to be determined subjectively: by what was contemplated by the parties sharing that purpose.[41] And “[w]hatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement”.[42]”

49.  In Clayton v R[43], by a majority of 6:1, with Kirby J dissenting, the High Court of Australia refused to grant special leave to appeal, “on grounds which, in effect, invited the court to reconsider its decision in McAuliffe v The Queen and Gillard v The Queen…”[44]  The Court determined that the principles established by those decisions, including ‘extended common purpose’, were to be applied.

50.  In Likiardopolous v R the Court of Appeal Victoria acknowledged that the authorities established that whilst criminal culpability could be established in a joint enterprise notwithstanding that not all the offenders were present at the time of the commission of the offence, nevertheless what was required was evidence of their:[45]

“ participation in the criminal enterprise. By participation is meant the taking of a step or steps to further that enterprise.”

51.  In Arafan v R[46], the Court of Appeal of Victoria accepted the concession of the Crown that, having opened its case on the basis of accessorial liability, a miscarriage of justice resulted from the Crown closing its case on the basis of joint enterprise.  Biani and the applicant were convicted of multiple charges of blackmail of Rifat.  Although there was evidence that Biani made multiple unwarranted demands with menaces of Rifat, there was no such evidence in respect of the applicant.

52.  Of the earlier judgment of the Court in Likiardopolous v R, the Court said:[47]

“ We consider that it supports our conclusion that the fact that the applicant in the current case was not present when the various demands with menaces were made was not, of itself, an obstacle to his conviction on the basis of that doctrine. However, it also supports our conclusion that, in a case of joint criminal enterprise, more must be proved than mere agreement reflecting a common purpose. This was not a prosecution for conspiracy. Having elected to present its case as one of joint criminal enterprise, the Crown was required to establish ‘participation’ in the sense described in Likiardopoulos,[48] that is, ‘taking a step or steps to further the enterprise’, if it was to sheet home criminal liability on the basis of that form of joint offending.” [Italics added.]

53.  In ordering that the convictions of the applicant be quashed and that verdicts of acquittal be entered on all the counts, the Court said[49]:

“ The fact is that there was no evidence capable of sustaining a conviction on any of the counts on which the applicant was presented once the case was put forward as one of joint criminal enterprise.”

54.  In R v Stringer [50] there was no dispute that McPhee, who pleaded guilty to murder, killed the deceased, Bones, by stabbing him multiple times with a knife.  The appeals of the Stringers, father and son, from their convictions for murder were dismissed.  The prosecution case against the Stringers was that they were guilty as secondary parties in that they had formed a common purpose to attack Bones, either to kill him or cause him serious bodily harm.  In pursuit of the common purpose, they did a number of acts in support of McPhee: joined in chasing Bones, disarming him of the baseball bat he carried, making sure he could not escape and urging McPhee on.  It was the case for each appellant that they did nothing to encourage or assist McPhee to attack Bones; that they were unaware until the end of the attack that McPhee was attacking Bones with a knife; up to that point each was a mere spectator; and, at that point, Stringer junior tried to stop McPhee.

55.  In the judgment of the Court of Appeal of England and Wales, Toulson LJ, as Lord Toulson was then, noted that prior to the abolition of the distinction between felonies and misdemeanours by the Criminal Law Act 1977, although there was a distinction in terminology, the substantive law in respect of those who could be convicted of an offence as a secondary party was the same.  He noted:[51]

“ There were three categories of person who could be convicted of a felony: principals in the first degree, principals in the second degree and accessories before the fact. A principal in the first degree was ordinarily the person who actually carried out the conduct element of the offence (in murder the killing) with the necessary mental element. (There might be more than one principal in the first degree if two or more persons each carried out part of the conduct element with the necessary mental element.) A principal in the second degree was someone who was present aiding or abetting the actual perpetrator of the felony at the very time when the felony was committed. An accessory before the fact was defined by Hale in his Pleas of the Crown (1682) vol 1, page 615, as a person who:

“ being absent at the time of the felony committed, doth yet procure, counsel, commend or abet to commit a felony.” ”

56.  Of the third category, Toulson LJ went on to say:[52]

“ …for centuries secondary liability attached to a person who aided or abetting another person to commit an offence but was absent at the time of the offence.  That is why he was termed an “accessory before the fact”.”

57.  Having said that to ‘abet’ was to assist or encourage, but had become archaic, he noted that the Law Commission had concluded that these specified types of involvement covered two types of conduct, namely “the provision of assistance and the provision of encouragement.”  However, he went on to say:[53]

“ It is one thing to say that D cannot be liable as an aider or abettor unless P acted with D’s assistance or encouragement when he committed the offence. It is quite another to suggest that the act or words providing the assistance or encouragement must be performed or said at the moment of the commission of the offence. Such a limitation would exclude, for example, a person who supplied a murder weapon in advance of the crime knowing the purpose for which P wanted it. The law would be defective if an aider and abettor could escape liability by seeing that there was a gap in time between his conduct and the conduct of P.” [Italics added.]

58.  Toulson LJ went on to say that there must be some “connecting link” between the commission of the crime and the assistance and encouragement.[54]  Of that, he said:

“ Whereas the provision of assistance need not involve communication between D and P, encouragement by its nature involves some form of transmission of the encouragement by words or conduct, whether directly or via an intermediary.”

59.  Having noted that whether the defendant’s conduct amounted to assistance or encouragement is a question of fact, nevertheless Toulson LJ said that there may be cases where the assistance and encouragement of the defendant provided to the principal is so “distanced in time, place or circumstances”, from the conduct of the principal that it would be unjust to regard the acts of the principals as done with the encouragement of the defendant.[55]

60.  Of the nature of joint enterprise, Toulson LJ said:[56]

“ Joint enterprise is not a legal term of art.  In Mendez and Thompson the court favoured the view that joint enterprise as a basis of secondary liability involves the application of ordinary principles; it is not an independent source of liability.  Participation in a joint criminal adventure involves mutual encouragement and assistance.”

61.  In dismissing the appeals, the Court determined that there was ample evidence on which it was open to the jury to conclude that:[57]

“ … McPhee was encouraged and assisted in the attack which he carried out on Bones by the conduct of the defendants in joining in the chase. McPhee had the comfort and spur of knowing that he was not on his own, but had the support of the defendants and the reasonable expectation that they would come to his aid if he needed it.”

62.  Toulson LJ also gave the judgment of the Court of Appeal of England and Wales, otherwise differently constituted, in R v Mendez[58]. In addressing the underlying principles of secondary liability and joint enterprise, he said:[59]

“ Although some distinguished scholars consider that joint enterprise liability differs doctrinally from ordinary principles of secondary criminal liability, we incline to the view that joint venture liability is an aspect of them, as it is put in Smith and Hogan’s Criminal Law,12^th ed (2008), 207:

“ The only peculiarity of joint enterprise cases is that, once a common purpose to commit the offence in question is proved, there is no need to look for further evidence of assisting and encouraging. The act of combining to commit the offence satisfies these requirements of aiding and abetting. Frequently it will be acts of encouragement which provide the evidence of the common purpose. It is simply necessary to apply the ordinary principles of secondary liability to the joint enterprise.” ”

The prosecution case: joint enterprise

63.  In his opening speech to the jury, Mr Simon Tam SC said that “the prosecution’s case against the accused is one of joint enterprise.”[60]  Having told the jury that the concept was not difficult to understand, he provided an example:

“ A person who acts as a lookout in a bank robbery -- lookout in a bank robbery can nevertheless be convicted of robbery, even though he has not even entered the bank himself or touched the money. He can still be convicted of robbery.”

64.  In his closing speech, Mr Tam addressed the issue again.  Having told the jury that it was not the prosecution’s case that the applicant was one of the persons who had chopped the deceased on the night of his death, he said:[61]

“ Now, the prosecution’s case against him is one of joint enterprise. Now we say on the night in question, there was a plan or an agreement in place to locate and chop the followers of Fei Kit. And that the accused and his associates, knowing full well that such a plan or agreement was in place, nevertheless participated in such a plan or agreement in order to have it carried out.

Now we say they had gathered in Tin Shui Wai in Tuen Mun and that they brought weapons like knives with them, before they set out to look for their intended victims in different cars. Now when their intended victims were located in Leung Tin Tsuen, the people in the accused’s car immediately proceeded to Leung Tin Tsuen to render support.

Now the prosecution say when the accused participated in this joint plan or agreement to have other people chopped, he fully realised that there was a real risk that those persons who were to be located and chopped by them might suffer serious, really serious injuries. Now the accused, apart from knowing that his associates were armed with weapons, he himself had taken (a) knife with him…before he and his associates set out to look for their intended victims.

Now the prosecution say that was exactly what happened that night.”

The summing up

65.  The judge summed up over part of two days.  Of Count 1, the jury was instructed that, depending on the view that they took of the evidence, they might acquit the applicant or, on the basis of culpability arising from joint enterprise, convict him of murder or manslaughter.  Similarly, in respect of Count 2 the jury was directed that they might acquit or convict the applicant.

66.  Having reminded the jury that it was the prosecution case against the applicant that he “was acting in a joint enterprise with others to murder Kwok”[62], the judge went on to refer to the evidence relied on by the prosecution, namely his admissions to the undercover officer to the effect that:[63]

“ …the defendant followed the instructions of others and armed himself with a knife, together with others to chop, that is, to inflict serious injuries to the followers of Fei Kit, that is, members of the other rival factions. In other words, they did it together.”

67.  Then, the judge directed the jury:[64]

“ Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a joint plan, or agreement to commit it, they are each guilty. The words, “plan,” and, “agreement,” do not mean that there has to be any formality about it. They do not need to sign an agreement. An agreement to commit an offence may arise on the spur of the moment. Nothing need be said at all, it can be with a nod and a wink or a knowing look, or it can be inferred from the behaviour and acts of the parties or it can be spread by words of mouth over the telephone.

The essence of joint responsibility for a criminal offence is that each person or defendant shared a common intention, a common intention to commit the offence.  And each of them played his part in it, however great or small, so as to achieve that aim or that object.”

68.  In that context, the judge amplified the illustration of liability of different persons, who played different parts in a joint enterprise to rob a bank, given by Mr Tam in his Opening speech.  She said that some of those persons might go into the bank, one of whom might require the teller to hand over the cash; another might be a lookout and yet another might drive the getaway car.[65]

69.  Of the approach for the jury to take in the instant case, the judge said:[66]

“ If looking at the case of this defendant you are sure that with the intention I have mentioned, he took some part in committing it, namely that when he armed himself with a knife, went to the scene as part of a joint plan or agreement with others either to kill or to cause Kwok really serious harm, and if that resulted in consequence, then he is guilty of murder.”

70.  Next, the judge provided the jury with a written handout which she read to them:[67]

“ Joint enterprise murder. Before you may convict the defendant of murder, you must be sure,

(1) the defendant was part of a group who struck or chopped Kwok with knives;

(2) that those persons intended at the time of that act, to kill Kwok or to cause him really serious bodily harm;

(3) that those blows or that chopping was a significant cause of Kwok’s death;

(4) that the defendant intentionally took part in that attack with those other persons in the chopping of Kwok; and

(5) that at the time he took part in that attack, the defendant intended that Kwok be killed or caused really serious bodily harm by that act and that the act was unlawful.”

71.  Of the evidence that the prosecution said was relevant to the issue, the judge said:[68]

“ The prosecution says that according to the undercover officer, the defendant admitted to have armed himself with a knife pursuant to instructions and set out to look for targets. And once he learned that the targets had been located, he proceeded in another car to the scene, to render support and eventually helping their gang to get away. So, the prosecution says the defendant was acting as part of a joint plan or agreement to carry out the attack and thus assisted the others in committing murder. So, you should have no doubt that (1) and (4) are proved, because he was part of a group and he intentionally took part in that attack.

Now, turning to (2) and (5), namely whether the prosecution has also made you sure at the time, when those other persons and the defendant did what they did, they all share the same intention, namely either to kill Kwok or to cause him really serious bodily harm. As the prosecution has said to you in the closing, there is no need that he actually intended to kill, it is sufficient that the intention is to cause him really serious bodily harm.

So, how would you decide, members of the jury, what his intention at that time was?  Remember, it is his intent at the time, which is important, not his intent at any other time.  So that is the crucial time when you have to decide what his intent was, is when he acted upon instruction and armed himself with a knife and went to the scene.”

72.  Then, having given the jury directions in respect of causation, the judge addressed the jury in respect of the issue of manslaughter.  Next, she began reminding the jury on the evidence of the prosecution witnesses.  Before proceedings resumed in the presence of the jury on the second day of the summing up, the judge received written and oral submissions from Mr Tam in respect of the directions that she had given the jury orally and in writing in relation to ‘Joint Enterprise Murder’ on the first day of the summing up.  He reminded the judge that it was the prosecution case that the applicant was a party to an agreement with “his associates to have other people chopped on the night in question” and that he had participated in carrying that agreement into effect.  Mr Tam referred the judge to the judgment of the Court of Appeal of Victoria in R v Arafan. His concern was that it be made clear to the jury that the applicant’s culpability for the murder of the deceased did not require proof that he was present at the scene and had taken part in the physical attack on the deceased.

73.  Although the judge said that she had not suggested to the jury “it has to be proved that he actually took part in the chopping”, and although Mr Donald agreed that that was the case, nevertheless the judge gave a further direction to the jury:[69]

“ Good morning, members of the jury. I will continue with part 2 of my summing-up but, before I do so, I want you to take a look at Sheet No 2 that I have given you, which is titled ‘Joint Enterprise Murder’. I don’t want you to have any confusion about this because, before I gave you Sheet 2, I directed you on what is known as a joint enterprise, namely that people enter into an agreement to do some unlawful act and they did it together, pursuant to that agreement.

The basis of the prosecution case against the defendant here is that the defendant and the others reached an agreement to chop people of the opposite gang or faction and pursuant to such an agreement, he participated to have that agreement carried into effect. It is never suggested by the prosecution, neither on Sheet 2, that he took part in the actual chopping.

You will all be aware by now that the prosecution case is that there was an agreement beforehand and they travelled in two cars and he was in a second car, or a third car, we don’t know, but then he went there and the chopping was over, he helped them to get away. That was the prosecution case, not that the defendant was the actual chopper in this incident.

All right.  So in essence, it’s the agreement with the intention and also participation pursuant to that common intention agreement.”

74.  Of course, such evidence as there was of the applicant’s agreement with others to chop the followers of Fei Kit and the steps that he had taken in pursuance of that agreement came only in the evidence of PC 7475, namely in what he said the applicant had said in the Luxe Bar on 16 December 2011.  The judge said to the jury that whether or not they accepted his evidence was a main issue in the case.[70]

75.  In summarising the evidence of PC 7475 (PW 8) of that meeting, the judge said that the police officer said:[71]

“ Yu Ngau said he received instructions from Kam Mo Cheung to chop the followers of Fei Kit, another faction of the Tuen Mun Sun Yee On, and that Yu Ngau told him, that he armed himself with a knife and boarded the private car driven by Tai Kau to look for the followers of Fei Kit, whilst Fei Chiu and others boarded another car.

 And after learning that Fei Chiu’s group had managed to locate those followers including Kwok Ching in Leung Tin Tsuen, and chopped Kwok, they went to the scene to render assistance.  He said Yu Ngau also said that when he arrived at the scene, he already saw someone being chopped and lying on the ground, and he gave a lift to other fellow followers to leave.”

76.  In the context of the issue of whether or not the jury accepted the evidence of PC 7475, the judge said:[72]

“ Are you sure that the defendant was at the Luxe Bar at the material time? If you are not sure, you should acquit him of both charges.

If you are sure that the defendant was there at the Luxe Bar, then can you be sure that PW8 had made no mistake as to who said what in that meeting and subsequently made an accurate description of that event in his occurrence book some three hours later? And remembering that PW8 said that, at that time, when he compiled his witness statement in respect of the present case, some one and a half years later, he had no independent recollection of the details of that meeting and had to heavily rely on his occurrence book.

If you think that PW8 may be mistaken as to who said what and the contents of the conversation, again, you will have to acquit the defendant as there is no evidence against him on those two charges.  If you are sure that PW8 had correctly related what the defendant said to him in the Luxe Bar, ie the defendant did say all those to PW8, then you will have to consider whether you can be sure that what the defendant said to PW8 was true.”

77.  Of the critical issue of the truth or otherwise of the assertions made by the applicant to the police officer, the judge said:[73]

“ In short, can you be sure that the defendant did what he said he did to PW8, namely, arm himself with a knife in pursuance of a joint intention and agreement to cause serious injuries to the deceased or to kill the deceased, and went to the scene and rendered assistance? Could it be that he was just bluffing, boasting or exaggerating the role of his involvement? It is a matter for you, members of the jury.

If you find yourself suspicious that the defendant might have done so, then you are not in a position to convict him. It is only when you are sure that he did so, then you will have to consider each of the elements of the murder charge.  And only if you are satisfied of each of those ingredients, then you can convict him of the charge of murder.”

78.  The jury having retired to consider their verdict, the Court reconvened about one hour and 20 minutes later for the judge to give the jury further directions, in response to two written questions asked by the jury.  First, the judge canvassed the response to the jury and the directions to be given with counsel.  Then, the judge established with the foreman, that by one of the questions, the jury asked that the audio record of the evidence-in-chief of PC 7475 in respect of the meeting at the Luxe Bar on 16 December 2011 be replayed.[74]  With the prior agreement of Mr Donald, the judge informed the jury that she declined that request, explaining that were she do so that would “unduly emphasis on his evidence.[75]  Again with Mr Donald’s concurrence, the judge repeated the summary[76] of that evidence that she had given to the jury earlier in the summing up.  In the absence of the jury, the judge had canvassed with counsel the alternatives of reading her “full note” or repeating her summary.  In rejecting the former, the judge said that to do so “would create the same impression”.  In context, clearly the judge meant that would have the same effect as playing the audio recording of that part of the evidence-in-chief.  For his part, Mr Donald agreed with the judge.  No further request was made by the jury for assistance.

79.  It is not clear why, in face of the request of the jury, the judge did not think it appropriate to read her “full note” of the relevant evidence, rather than repeating her summary.  The transcript of the relevant evidence is about one page in length only.  In several respects, the judge’s summary of that evidence omitted some of the detail in the statements attributed by PC 7475 to the applicant.  First, it did not refer to the applicant’s statement that Fei Chu had told them to “bring along certain tools, which includes knives water pipes and torch”[77].  Secondly, it made no mention that Tai Kau “..had told everyone to come together in Tin Shui Wai”.[78]  Thirdly, there was no mention of the applicant’s statement that Tai Kau and Fei Chu were “…two head followers of Kam Mo Cheung”.[79]  Clearly, the omission of that detail in the judge’s twice repeated summary of that evidence was not in any way disadvantageous to the applicant.  In any event, some of those matters were dealt with elsewhere in the summing up.

80.  Earlier the judge had told the jury that PC 7475 had testified that the applicant said “… he obeyed an order of Tai Kau and Fei Chu to fetch sharp knives, water pipes and torches to board a private car to look for followers of Fei Kit and to chop them.”[80]  Similarly, the judge reminded the jury that it was the effect of the evidence of PC 7475 that the applicant had said that in arming himself with a knife and setting out to look for the followers of Fei Kit to chop, he did so under instructions from others.[81]

81.  Further, in the context of Count 2, the judge said that, if proved, “the evidence of responding to the whistle blowing, the show of force by arming himself with a knife to carry out the instructions of Kam Mo Cheung and Tai Kau to chop the followers of Fei Kit” constituted acting as a member of a Triad society.[82] Also, the judge had reminded the jury of the evidence of Inspector Wong, who gave evidence as an expert witness in respect of Triad societies.  He said that blowing the whistle is a triad activity in which members are called to gather in strength in order to render assistance, solve problems or extract revenge.  Further, that Sun Yee On was a very influential triad society in Tuen Mun and that Kam Mo Cheung and Tai Kau “were outstanding members of Sun Yee On and were influential in Tuen Mun area”.[83]

82.  On the other hand, at no stage in the summing up did the judge remind the jury that the applicant had told PC 7475 “Tai Kau told everybody to come together in Tin Shui Wai, in Tuen Mun.”  Again, that omission was not disadvantageous to the applicant.

83.  We are satisfied that the statements made by the applicant to PC 7475, in the Luxe Bar on 16 December 2011, if accepted by the jury as having been said and that they were true, constituted ample evidence on which the jury was entitled to be satisfied that the applicant was a party to a joint enterprise, namely an agreement with others to chop the followers of Fei Kit with knives with the intent to cause such persons grievous bodily harm.  Further, that the applicant had taken numerous steps to participate actively in giving effect to that agreement at a time when it was clearly on foot or on-going.  The fact that the applicant did not strike any blows to the deceased nor was he present at the scene at the time those blows were struck does not vitiate his liability for the murder of the deceased.  A fortiori, we are satisfied that the judge was correct to reject the submission of no case to answer.

84.  On the analysis of Smith & Hogan, cited earlier, the common purpose was proved by the applicant’s admissions that he had combined with others to commit the offence, namely to chop the followers of Fei Kit.  His continuing conduct in giving effect to the common purpose spoke eloquently as acts of encouragement evidencing the common purpose.  First, they armed themselves.  Secondly, they set out on different vehicles to locate their targets.  Thirdly, after contact had been made with the targets, those in the vehicle in which the applicant was travelling were informed of the fact that not only had contact been made but that Kwok Ching had been chopped.  Very significantly, the applicant described their response as being that his car “immediately went to Leung Tin Tsuen with a view to assist them to help them”.

85.  Of course, as the eyewitnesses had described, there had been considerable opposition to the arrival of the other vehicles of the applicant’s group at Leung Tin Tsuen.  In their headlong retreat from being pursued by a group of men armed with poles with which they were beating the blue Honda car, that car was crashed twice and rendered useless.  Other witnesses spoke of the 7-seater vehicle and/or a four-wheel drive vehicle (s) being attacked in a similar manner, albeit without crashing.  Help was obviously needed.  On the account of the eyewitnesses, the tide was turned by the arrival of men armed with knives, in face of which the other side fled.  The applicant’s car picked up the “…fellow followers to leave Leung Tin Tsuen”.  Clearly, the applicant took many active steps to participate in and advance the joint enterprise until it reached fruition.

86.  As noted earlier, in the judgment of the High Court of Australia in McAuliffe v R, culpability for those party to such an ongoing agreement arises:[84]

“ If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.”

Summing up

87.  We are satisfied that there is no substance in the complaint that the judge misdirected the jury in giving them an illustration, by reference to the roles played by various persons in a bank robbery, of criminal culpability arising in a joint enterprise.  That example resonates with the example Street CJ gave in his judgment in the Court of Criminal Appeal of New South Wales in R v Johns [85], to which reference was made in the joint judgment of Mason, Murphy and Wilson JJ, in the context of whether or not there was a different liability for the acts in furtherance of the common purpose of a principal in the second degree and an accessory before the facts:

“ A telling answer to it is the example given by Street C.J. in his judgment in this case, where he speaks of the three men who set out to carry out an armed robbery on a bank, two intending to enter the bank with loaded firearms whilst the third remains outside to drive the getaway car. In the course of the robbery a bank officer is shot and killed. The driver of the getaway car would be held liable as a principal in the second degree for the killing. If, however, the plan had involved the driver merely dropping the two armed men outside the bank and then driving off, the car driver would be an accessory before the fact. There would, as his Honour says, be no logical or legal justification for distinguishing between the complicity and liability of the driver whether he be a principal in the second degree or an accessory before the fact.”

The evidence of PC 7475

88.  The criticism that the judge failed to give adequate directions to the jury as to the frailties of the evidence of PC 7475 of his conversation with the applicant in the Luxe Bar on 16 December 2011 are misplaced.  As noted earlier she posed a series of questions to the jury, the purpose of which clearly was to highlight the points made by the defence.[86]  First, “Are you sure that the defendant was at the Luxe bar?”  Secondly, “…can you be sure that the PW 8 has made no mistake as to who said what in that meeting and subsequently made an accurate description of that event in the Occurrence Book some three hours later?”  In that context, she reminded the jury of the evidence of PC 7475 that he had made his witness statement from the Occurrence Book some one and a half years later and that he had no “independent recollection of the detail of that meeting”.  Thirdly, the judge said “…can you be sure that the defendant did what he said he did?”  Fourthly, she said, “Could it be that he was just bluffing, boasting or exaggerating the role of his involvement?”  Finally, she directed the jury that suspicion was not a sufficient basis to convict the applicant; the jury was required to be sure that he had done what he said he did.

89.  Elsewhere in the summing up, the judge reminded the jury of other matters advanced on behalf of the applicant in this respect.[87]  For example, the judge reminded the jury that the defence suggested that it was against common sense that the applicant would confide such serious matters in a relative stranger.  Further, that the conversation was held in a bar in distracting conditions and that the police officer accepted that he had drunk two glasses of beer.  Then, it was suggested that, even if they were satisfied that the applicant had made those statements, it might be that he was merely repeating matters that he had learned of after the events.

90.  Similarly, with respect, there is no substance in the complaints that the judge misled the jury in summarising the nub of what the applicant had said to PC 7475 in the Luxe Bar.  In responding to the jury’s request to listen to the audio recording of the evidence-in-chief of PC 7475, the judge repeated the summary that she had given to the jury earlier.  As noted earlier, there were several omissions in those two summaries of factual matters which the applicant had spoken to the police officer.  Those omissions were not disadvantageous to the applicant and the summary was not misleading.

91.  On other occasions, the judge summarised the case that the prosecution advanced as flowing from statements made by the applicant.  For example, in the context of the prosecution case that the applicant was a party to a joint enterprise in which the deceased was murdered, the judge said that, based on the evidence of the police officer:[88]

“ the defendant followed the instructions of others and armed himself with a knife, together with others to chop, that is, to inflict serious injuries to the followers of Fei Kit, that is, members of the other rival factions. In other words, they did it together.”

Those summaries of how the prosecution invited the jury to view the out-of-court statements of the applicant are not misleading either.     

The jury’s request to listen to the audio tape

92.  The judge’s refusal to accede to the request of the jury to listen to the audio recording of the evidence of PC 7475 in respect of the conversation with the applicant in the Luxe Bar was a course she discussed with counsel for the applicant at trial and with which he agreed.  Furthermore, he agreed specifically with the reasoning she advanced for taking that course, namely that there was a danger that the jury would place “undue emphasis on that part of the evidence.”[89]

93.  In the judgment of this Court in HKSAR v Bian Zhenju,[90] the judgment of Lord Taylor CJ in the Court of Appeal of England and Wales in R v Rawlings,[91] in which the issue was addressed, was cited with approval:[92]

“ When a jury wishes to be reminded of a witness’s oral evidence, the conventional practice has been for the judge to read out to them the relevant part of his note of the witness’s testimony, sometimes even the whole of it. The practice developed when there was no other record of the evidence apart from notes taken by judge and counsel. Even since shorthand writers became able to take a verbatim note of all questions and answers and produce a typed transcript, the practice has remained the same. The judge assists the jury from his notes. This is partly, no doubt, because the shorthand note will not usually have been transcribed when a jury in retirement requires help. But even if it has (e.g. by a daily transcript) or if a witness adopts a written statement as part of his or her evidence, it has been thought undesirable to give the jury in permanent form one part of the total evidence lest they give it disproportionate weight or attention. So, juries have had to make do with such help as is afforded by the judge’s note (sometimes checked against or topped up by reference to counsel’s notes). If all the jury require is to be reminded of some factual assertion by a witness or to resolve a dispute of recollection amongst themselves, this method usually suffices. But, it cannot, of course, recapture the manner and demeanour of the witness or the inflection of his or her speech. Until recently, there was no means of doing so.” [Italics added.]

94.  We are satisfied that the judge did not err in refusing to play the audiotape to the jury of the evidence-in-chief of PC 7475 of his conversation with the applicant at the Luxe Bar on 16 December 2011 and that repetition of her earlier summary of the effect of the evidence of PC 7475, in the context of the summing up as a whole, was a sufficient reminder to the jury of that evidence.  Significantly, the jury made no further request for assistance in that respect.

The second identification parade

95.  As the judge reminded the jury, PC 7475 had identified the applicant at an identification parade held on 17 December 2012 as one of the persons he had met whilst working as an undercover officer.  In fact, on that occasion the applicant picked up 27 such persons.  On 5 February 2013, he identified the applicant at a second identification parade in relation to the murder case.  He testified that he was the person that he knew as Yu Ngau, with whom he had the conversation in the Luxe Bar on 16 December 2011.[93]

96.  In face of an objection by Mr Donald to evidence of the second identification parade being led before the jury, the judge had ruled the evidence admissible.[94] His objection appears to have been on the basis that there was no evidential weight to the second identification, given the earlier identification of the applicant.  So, the identification was by recognition.  In that context, is to be noted is that it was the evidence of PC 7475 that in the period 31 October 2011 to 25 February 2012 he had met the applicant on no fewer than 14 occasions.  Sometimes he had had dinner with him, played snooker, drunk in bars and discussed the collection of ‘tortei’ from bars in Tuen Mun.  As is apparent from that evidence, PC 7475 was with the applicant at close quarters in total for many, many hours.

97.  In those circumstances, the overall circumstances of the identification being clear to the jury, the judge was entitled to admit before the jury the evidence of the second identification parade.  She made it perfectly clear to the jury that it was the defence case that PC 7475 picked out the applicant on that parade “based on his recognition of the defendant at the earlier first ID parade”.  The weight to be attached to the identification was a matter for the jury.[95]

The adequacy and balance of the summing up

98.  Finally, we are satisfied that there is no merit whatsoever in the submissions made on behalf of the applicant that the judge’s summing up was inadequate, unfair and unbalanced.  It was nothing of the sort.  As is apparent from the extensive parts of the summing up to which reference has been made in this judgment, notwithstanding the fact that the applicant did not give or call evidence of the defence case, the judge made extensive references to the defence case, as put in cross-examination and in submissions.

99.  In addition to the judge’s reference to issues raised by the defence, to which reference has been made already, the judge drew the jury’s attention to the out-of-court statements of the applicant to the police which had been led evidence.  Of them, she said:[96]

“ In essence, what the defendant said there was that he was not present at the time of the chopping incident, neither was he present at the Luxe Bar at the time that PW8 claimed to have heard his admission of involvement. Rather, he was at home.”

The judge went on to say:[97]

“ The defendant also denied to have armed himself with a knife on the day of the incident and said he knew nothing about the various cars involved in this incident, or their owners.”

100.  Then, she reminded them that having been cautioned after he had been identified on the second identification parade the applicant had said:

“ I did not participate in this matter and I was not at the scene. I have a witness that will be able to say I was not present at the scene.”

101.  Having directed the jury to have regard to the applicant’s good character, including in determining the weight to be given to the applicant’s out-of-court statements, the judge said:[98]

“ You might also wish to consider, after his arrest, he had provided spontaneous answers of denials which was consistent with what he said after the second identification parade.”

102.  Furthermore, having reminded the jury of the admitted fact that the applicant had been amongst a group of young persons of whom police officers had made enquiries, but found nothing suspicious, at about 9:00 p.m. on 4 December 2011 at the Hung Sing Restaurant of Yau Oi Estate on 4 December 2011, the judge told the jury:[99]

“ Defence said that these lent support to what the defendant said in his interview, that he did not go to the scene at the small hours on 5 December 2011 and it was impossible that he had armed himself with a knife.”

Conclusion

103.  For the reasons set out above, we are satisfied that there are no merits in the application for leave to appeal against conviction. Accordingly, that application is refused.