HKSAR v. KWAN TAT YEE

CACC 213/2018

[2022] HKCA 1021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 213 OF 2018

(ON APPEAL FROM HCCC NO 298 OF 2017)

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J U D G M E N T

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

Introduction

1.  The applicant stood trial before Deputy Judge Stuart-Moore (the Judge) and a jury for the murder of his wife Madam Deng Genzhu (the deceased), contrary to common law and punishable under section 2 of the Offences against the Persons Ordinance (Cap 212). It was an admitted fact before the jury that the applicant had pleaded guilty to manslaughter, which the prosecution had rejected.^[1]

2.  On 18 July 2018, the applicant was convicted after the trial of the murder of the deceased by a majority verdict of the jury of 5 to 2. In accordance with the law, he was sentenced to mandatory life imprisonment. He seeks leave to appeal against conviction and sentence. He is legally represented in the leave application to appeal against conviction but appears in person in the leave application to appeal against sentence.

The prosecution case

3.  On 13 August 2016, inside the flat where the applicant resided, he struck the deceased with a knife four times. She suffered a cut and three stab wounds, one of which was fatal. The fatal stab wound entered the deceased’s chest, went through her heart, and penetrated the liver, causing massive bleeding and her death.

4.  The applicant’s sister was present in the flat at the time of the incident, and she called for an ambulance and the police.

5.  The applicant told the police officer, who first arrived at the scene before he was cautioned,^[2] that he had an argument with the deceased, during which he struggled with her for the knife. Later, under caution, he told the police officer:^[3]

“Earlier on I had rows with my wife, yet I do not remember what happened afterwards.”

6.  The next day, the police conducted a video recorded interview with the applicant.^[4] It commenced at 6.37 pm and concluded at 7.48 pm. He agreed to be interviewed without a lawyer. After he was reminded of his earlier statement under caution, he was asked if he was willing to continue with the interview and whether he was physically fit enough to do so. He said that it “should be alright” and that his condition was “better”. He answered affirmatively that he fully understood what the interviewer was talking about.^[5]

7.  During the interview, the applicant appeared distraught and, on occasions expressed his concern that he was elderly and would be spending his remaining time in prison. Regarding the incident, he said he had diabetes in about 2004 and later ceased employment. He married the deceased in 2009, and she moved from the Mainland to live with him in the flat. Also living in the flat was his younger sister. He explained that he and the deceased had a property in the Mainland, which they purchased in 2014. They disagreed about selling the property and how they would share the proceeds if they sold it. The deceased was not living in the flat at the time. She had moved out in about June 2016 and, despite the applicant’s objection, she had commenced work, earning her own income. However, she would, from time to time, return to the flat to visit him.

8.  On the day of the incident, the deceased returned to the flat at about 1.00 pm, and she discussed with the applicant whether to sell the Mainland property. The applicant’s sister had also returned to the flat later that afternoon. After a while, the discussion about the Mainland property escalated into an argument, with the deceased saying that she could make her own living and not rely on him. A box was open on the table with a knife and other items inside. The applicant said that during the argument, he had wanted to peel an apple, but the deceased threw herself at him, causing him to stab her inadvertently.^[6]

9.  The prosecution case was that the applicant, having admitted to taking the knife out of the box in the video recorded interview, attacked the deceased with the intention to kill or cause grievous bodily harm.

The defence case

10.  The applicant elected not to give evidence. The defence called a psychiatrist, Dr Nip Wai, who testified about the applicant’s mental condition at the time of the killing and subsequently. The defence also called the applicant’s sister, who testified as to what took place in the flat at the material time.

11.  The sister said she returned to the flat in the afternoon and went to her room. The applicant and the deceased were in the living room. She heard the deceased tell the applicant that she could get a job and did not have to rely on him, which she described as a hurtful thing to say.^[7] They were also talking about selling the Mainland property, but they disagreed on what should be the deceased’s share of the proceeds of any sale. She also heard the deceased scolding the applicant. There was shouting. She went to see what happened and saw the deceased rush to the applicant to hit him.^[8] They were hitting and pushing each other. She suddenly saw a knife with the blade pointed at the applicant. She did not know where the knife came from, but someone was holding it.^[9] She saw them moving and turning, at which point the deceased stepped back and was bleeding. She picked up the knife and put it on the floor by the toilet. She then called the police.

12.  At the initial stages of the investigation, the sister had also been arrested and interviewed by the police. In cross-examination, it was revealed that she had told the police that she did not remember anything after walking out of her room. She did not mention hearing any shouting or witnessing an argument or struggle between the applicant and the deceased. She explained that she was scared and could not remember what had happened. All that was on her mind was to tell the police that she had touched the knife, and it was only later that she recalled what had happened.

13.  The defence contended that there was no evidence that the applicant intended to kill or cause really serious bodily harm.^[10] As for the knife, it was submitted by defence counsel in his closing speech that the applicant did not clearly admit taking the knife out of the box in his video recorded interview, as he was only answering a leading question from the interviewing officer.^[11]

The psychiatric evidence

14.  Dr Nip gave expert evidence in respect of the applicant’s mental condition to support the defences of diminished responsibility and provocation. He observed that the applicant had been affected by a mixture of biopsychosocial stressors, particularly his general poor physical health, money issues, and marital discord. Several months before the incident, the applicant was admitted to hospital frequently, presenting symptoms of chest tightness, palpitations, and generalized discomfort. He expressed the opinion that the doctors at the hospital could not find any physical diagnosis to account for all the symptoms presented by the applicant fully, nor did they prescribe a medical treatment to cure or prevent them.^[12] He noted that, two weeks prior to the incident, the applicant had been referred to the West Kowloon Psychiatric Centre on 29 July 2016, but had not followed up on the referral.

15.  According to Dr Nip, the applicant was, in fact suffering from panic disorder, which was an abnormality of mind. It had been left untreated and was deteriorating at the time of the incident. He was of the opinion that this disorder was likely to have substantially impaired the applicant’s perception and evaluation of, and reaction to, the situation around him, such that he could have interpreted his wife’s facial expression, spoken words or body gestures as undue risks and threats. It was also likely to have impaired substantially his ability to make judgements and to exercise self-control.^[13]

16.  Dr Nip also expressed the view that the applicant exhibited features of significant psychological distress during his video recorded interview^[14] and that he was quite possibly under the influence of acute stress disorder.^[15] He considered that the applicant was medically unfit to undergo the video recorded interview^[16] and that he could have been pressed to fill memory gaps with confabulations during the interview, the correctness and integrity of which were nearly impossible to ascertain.^[17]

17.  In rebutting the defence’s psychiatric evidence, the prosecution called Dr Liu Ching Yung, Amy of the Siu Lam Psychiatric Centre. She noted that the doctors at the hospital, in fact, diagnosed the applicant in July 2016 as suffering from the physical condition of atrial fibrillation. She was of the view that the applicant’s symptoms of palpitations, chest pain, shortness of breath, and dizziness, were attributed to atrial fibrillation rather than a panic disorder. Although the applicant was referred to the West Kowloon Psychiatric Centre because of some reactive anxiety, she explained that this was not a diagnosis of a disease, as it only meant that he was worried about his newly diagnosed atrial fibrillation and the related medication.

18.  Dr Liu was of the opinion that the applicant did not suffer from any abnormality of mind nor any formal psychiatric illness at the time of the offence. She pointed out that the applicant had been transferred to the Siu Lam Psychiatric Centre for observation and treatment for matters which arose after he was remanded in custody. As a result, she was able to have continuous periods of observation of his mental condition.

The issues at trial

19.  The Judge, at the outset of his summing-up to the jury, succinctly set out the respective cases of the parties and the issues between them:^[18]

“The prosecution's case is that, on 13 August two years ago, 2016, the defendant took out from that box a large knife and he struck his wife four times. It was a cut and three stab wounds and, in doing that, the prosecution say, and it is for you to judge, that he simply must have intended, if you look at that knife, to cause at the very least very substantial harm to her, in other words very serious harm.

They say that he was not suffering at that time from an abnormality of mind which reduced his mental responsibility. They say that he was not provoked into killing her in the legal sense and nor, they say, was this a case where he had no intention to cause really serious harm because he obviously, they say, did.

Now, in the course of all of that evidence, the question arises as to diminished responsibility, provocation and a lack of intent to cause really serious harm.

…

Now, what about the defence case? The defendant admits that he unlawfully killed his wife and that means not in self-defence and not by the accident but unlawfully killed her. He has the benefit not just of counsel but also solicitors, who you see sitting in court, in deciding his plea of guilty to manslaughter.

The defence argue, and you have heard it at length today, from Mr Luk, that Dr Nip is to be believed, not merely as to his evidence but also that he is accurate in his diagnosis of a mental abnormality. They say therefore that manslaughter, by reason of a diminished responsibility for his actions, should be the verdict that you find and not guilty of murder.

As you know, you have got the evidence of Dr Amy Liu, which is the very opposite of what Dr Nip said.

Alternatively, they say that, if you look at the interview, you will find there evidence of provocation and you can couple that with Dr Nip's evidence that this particular individual is quite likely to be provoked because of his mental instability. Then finally, if you look at the interview, said Mr Luk, you can see there evidence that this was not really a case where he intended to cause really serious harm because in fact this was a muddle of a struggle between the two and she got hurt in the course of it without his intending to cause really serious harm to her.

So the issue for you is, as it was from the beginning of this trial, is he guilty of murder or is he guilty of manslaughter.”

20.  The applicant ran three defences at trial, namely diminished responsibility, manslaughter by provocation, and unlawful and dangerous act manslaughter, which if successful, would have resulted in a conviction for manslaughter. Appropriately, the Judge focused the jury’s attention on the issue of whether the applicant was guilty of murder or manslaughter, emphasising that it was for the prosecution to prove the offence in either case:^[19]

“Now, counsel have rightly pressed one aspect of law which is fundamental to this and every criminal case. It is what is called the burden and standard of proof required in a criminal trial. Before a verdict of guilty can be returned by you on either murder or manslaughter, you would have to be sure of the guilt of the defendant. With manslaughter, I am going to qualify it, when I come to it, about the one thing that is really important in the defendant's case, which is that he, the defendant, does not have to prove to the same standard that the prosecution does the diminished responsibility that has been argued on his behalf, but we will come to that very soon.

What happens is this: The prosecution bring a charge. It is their responsibility to prove it. The burden lies on them. So you can only convict the defendant if it has been proved, always subject in the case of murder to the question of manslaughter, and so the question arises, well, what standard of proof is required and, again, as counsel have correctly told you, the standard of proof in Hong Kong is a very high one. Before you could convict the defendant on this charge of murder, you would have to be sure beyond a reasonable doubt that that charge has been proved. It is an expression that I am sure you have heard before you came to this court, but it is really important: Are you sure beyond a reasonable doubt that murder has been proved. If you are not, then the verdict is not guilty and then you move on to manslaughter, because manslaughter is an alternative to murder.” (Emphasis added)

21.  A key aspect of the Judge’s summing-up that has been overlooked in the submissions in respect of the grounds advanced by the applicant is his comments on the defence of diminished responsibility. We will discuss this matter in greater detail later but note at this stage that the Judge had to address the fact that with diminished responsibility, the applicant had to prove that his responsibility was diminished on the balance of probabilities (more likely than not). In contrast, the prosecution had the burden of proving each ingredient of the offence of murder, whatever the defence.

22.  The Judge then turned to explain in detail the elements of the offence of murder, but before doing so, emphasised again that it was subject to the question of manslaughter:^[20]

“Murder is committed when a person unlawfully kills another and at the time of doing so intends either to kill that other person or to cause that other person grievous bodily harm. That is really serious bodily harm.

The burden is throughout on the prosecution to prove each ingredient of the offence beyond reasonable doubt. So, before you may convict the defendant of the murder of Deng Genzhu, the deceased, you would have to be sure that, one, the defendant committed an act or acts which caused the deceased's death. Secondly, that the killing was unlawful and, three, that at the time of act or acts which caused the death of Deng Genzhu, the defendant either intended to kill her or he intended to cause her grievous bodily harm, in other words really serious bodily harm.

If you are not sure of any one of those ingredients, then the defendant must be found not guilty of murder. If you are sure of those ingredients, then, subject to the question of manslaughter, the verdict would be guilty of murder. Subject to the question of manslaughter, we will come to that quite separately.” (Emphasis added)

23.  After an extensive review of the elements of the offence of murder, the Judge took the jury through the alternative of manslaughter, explaining the various forms on which the applicant relied upon. By way of introduction, he said:^[21]

“… You see, murder and manslaughter are both forms of homicide, the killing of a human being unlawfully, one with the intention to kill or cause serious bodily harm and, so far as one form of manslaughter is concerned, the one Mr Luk started with in his speech, there is a form of manslaughter which does not have that intention, but it is a dangerous and unlawful act which causes the death. That is one form. With regard to diminished responsibility and provocation, it does have to be established in your view that the killing was done with the intention to kill or cause serious bodily harm.”

24.  We should stress that the Judge, when addressing the jury on the elements and the requirements of the offence of murder and the various defences of manslaughter, provided them with written instructions to assist them in their deliberations. Counsel for the applicant took no issue with the written instructions, nor with the Judge’s summing-up.

The appeal against conviction

25.  In the early stages of these proceedings, the applicant was represented by counsel assigned by legal aid in his application for leave to appeal against conviction. Counsel took the view that there were no grounds of appeal against conviction, but remained on the record to assist the Court. In the meantime, several grounds were advanced by the applicant,^[22] including his assertion that it was the deceased who had taken the knife out of the box to attack him and his sister, and in trying to protect his sister, he came into physical contact with the deceased. He also complained about his treatment in custody and his respective legal teams at trial and the appeal.

26.  By letter dated 26 July 2021, Mr Eric Cheung, as Director of Clinical Legal Education of the University of Hong Kong, wrote to the Legal Aid Department, indicating that there were reasonably arguable grounds of appeal. This letter had only been filed three days before the scheduled hearing of the leave application fixed for 29 July 2021. The hearing was vacated, and the Legal Aid Department then assigned Mr Cheung to represent the applicant.

27.  Mr Cheung does not pursue the grounds of appeal previously advanced by the applicant. He filed Perfected Grounds of Appeals dated 20 April 2022, in which he advanced two grounds of appeal against conviction. Ground 1 complains of the Judge’s directions in respect of the applicant’s video recorded interview. Ground 2 concerns the Judge’s description and directions of the sister’s evidence.

Ground 1: The directions in relation to the applicant’s video recorded interview

28.  There are two complaints under this ground.

Failure to give a Mushtaq direction

29.  The first complaint is that the Judge failed to direct the jury in accordance with the Mushtaq direction so as to disregard the applicant’s video recorded interview if they found that he might not be mentally fit to be interviewed. Instead, he wrongly directed the jury to the effect that they must disregard the applicant’s video recorded interview only if they found that he “really was not fit” to be interviewed.

30.  When addressing the applicant’s video recorded interview, the Judge gave the following directions to the jury:^[23]

“… The [video recorded interview] … is one which the prosecution say contains a number of admissions made by [the applicant] which are important to their case, for example taking the case knife out of the box of knives before he struck the deceased with a knife.

Dr Nip … told you that in effect [the applicant] was not fit to be interviewed on that day, because he suffered from a disease called acute stress disorder and so really anything that he said which was against his interests is valueless according to Dr Nip because he was not fit to be interviewed. So the law takes this view about that kind of things: If you take the view that Mr Nip is correct and that [the applicant] really was not fit to be interviewed, you must not hold against him anything which was said by him in the interview which is against his interests. Of course, that will depend on your view of Dr Nip: Was he right about that or was he wrong about that?” (Emphasis added)

31.  Mr Cheung relied on HKSAR v Yiu Chi Ming^[24], where the principles in R v Mushtaq^[25] were identified and explained as follows:

“… the two key principles of Mushtaq are readily apparent. The first key principle is that both the common law and human rights law require that the jury be told that if they found that any confession made by an accused was or may have been obtained in circumstances of involuntariness, oppression or in consequence of anything said or done which was likely to render any confession unreliable then they must disregard it. The second key principle is that the jury must clearly understand that they must disregard such a confession even if they are sure it is true.” (Emphasis added)

32.  Applying the Mushtaq principles, it was submitted by Mr Cheung that an accused’s mental state was part of the circumstances to be taken into account in considering whether a confession was reliable. In the present case, based on the evidence of Dr Nip, the defence had clearly raised the issue of whether the applicant was fit to be interviewed, casting doubt on the validity of his consent to participate in the video recorded interview and the reliability of its contents. It was emphasised that the applicant’s mental state was a matter to be taken into account whether or not it was known to the police at the time and whether or not it amounted to a mental handicap: R v Rebecca Walker^[26].

Whether the admission of taking out the knife was unequivocal

33.  The second complaint is that the Judge failed to direct the jury that unless they were sure the applicant had made an unequivocal admission of taking the knife out of the box, they could not rely on such an assertion by the prosecution.

34.  Mr Cheung referred to the defence closing speech in which it was submitted that the applicant did not clearly admit in the video recorded interview that he took the knife out of the box.^[27] He contended that there was an issue as to whether what the applicant said amounted to an admission that he was the one who removed the knife from the box. The passage in the video recorded interview that was relied on by defence counsel was as follows:^[28]

“923. A Yes, that is, the knife that you stabbed [the deceased] with was one of (the knives) in this box set.

924. C Uh-huh.

925. A Took (it) out, right?

926. C Huh.

927. A Yes.”

35.  According to Mr Cheung, the admission was equivocal. He referred to the judgment of the Court of Final Appeal in HKSAR v Zhou Limei^[29]. He submitted that (1) the jury should have been told they could only rely on what the applicant said in the video recorded interview about taking out the knife as an admission if they found beyond reasonable doubt that it was intended to be an admission, and (2) they should have been told of the ambiguity in what was said in the video recorded interview by the applicant, other possible meanings, and matters that they might take into account in deciding whether the applicant did, in fact, intend to admit that he took out the knife. He also referred to Specimen Direction B in Specimen Direction 113 on Defendant’s Confession of the Specimen Directions in Jury Trials, 2020.

Ground 2: The directions on the sister’s evidence

36.  It is complained under this ground that when the Judge summarised the sister’s evidence as to what she had told the police under cross-examination, he contrasted it with her evidence in examination-in-chief and concluded with the following direction to the jury:^[30]

“Well, now, when she was cross-examined, this is what emerged and this is the other side of that same story and you will have to decide where the truth is to be found in all of this …

All right. Well, now, that is the evidence for your consideration. It is looked at this way and that and you must decide what you make of her account. Was what she saying in [court] true or was the truth really what she was saying to the police when she was first spoken to after the event? It is up to you to decide.”

37.  Mr Cheung complained that the Judge failed to direct the jury that they could act on the sister’s evidence if they found it might be true (the Liberato direction) but instead wrongly invited them to decide whether they believed her evidence, thus creating a real danger that they did not act on her evidence even if they found that it might be true.

38.  It was submitted that it is trite that the approach with regard to prosecution evidence and the defence evidence is fundamentally different in that the jury should have been told in clear and simple terms that they could act on the defence evidence if it might be true: HKSAR v Jim Fai^[31]. As the jury were directed to choose between the sister’s evidence in court and what she told the police, it was submitted that they were wrongly directed on the standard of proof, and there was a real danger that they could have disregarded her evidence even if they concluded it might have been true: HKSAR v Lee Fuk Hing^[32] and HKSAR v Wong Wai Man (No 2)^[33]. In essence, Mr Cheung submitted that the Judge wrongly presented to the jury with a stark choice of believing the sister’s evidence in court or her statements in the video recorded interview, and failed to give a Liberato direction even when considering the summing-up as a whole: HKSAR v Chan Tam Fu^[34].

39.  Mr Cheung submitted that the misdirection resulted in real prejudice against the applicant. He distinguished the cases of Chan Tam Fu and HKSAR v Tam Ho Nam (No 2)^[35], where the only live issue was provocation, and the jury had been directed not to convict on murder if the killing might have been provoked. He argued that in the present case, if the sister’s evidence might be true, the applicant would have had no murderous intent, and the lack of a proper direction caused real prejudice.

40.  Mr Cheung further submitted that the applicant was convicted by a majority of 5 to 2, which reflected that the jury may have had difficulties considering the evidence: Wong Wai Man (No 2)^[36] and Yuen Kwai Choi v HKSAR^[37].

The respondent’s submissions

41.  Mr William Tam SC, with Ms Chan Sze Yan, for the respondent, opposed the applicant’s leave application.

42.  It was submitted that the summing-up should be considered as a whole, bearing in mind the context of the case. In this case, the applicant admitted to killing the deceased, and the fatal stab wound was to the chest, penetrating the liver through the heart. The sister’s evidence, taken at the highest, was that the deceased was injured and bleeding after a struggle with the applicant when a knife was used. The applicant’s version of events in his video recorded interview was not made under oath, nor tested under cross-examination. It was further submitted that a properly directed jury were entitled to reject Dr Nip’s evidence and the applicant’s exculpatory statements in his video recorded interview and to infer that the applicant intended to kill or cause serious bodily harm.

Ground 1: The directions in relation to the applicant’s video recorded interview

Failure to give a Mushtaq direction

43.  Mr Tam referred to Tam Ho Nam (No 2)^[38], and submitted that the complaint about the Judge’s direction was whether it accorded with the common law.

44.  Of the first principle in Mushtaq, relying on a passage in the summing-up also cited by the applicant, Mr Tam contended that the Judge clearly directed the jury that, unless they were satisfied that the applicant was fit to be interviewed, anything he said in the video recorded interview against his own interest was “valueless”, and they must not hold it against him.^[39]

45.  Of the second principle in Mushtaq, Mr Tam pointed to the Judge telling the jury that they could only consider whether what was said in the video recorded interview was true or not after they had formed a view that he was not suffering from acute stress disorder. The Judge said:^[40]

“If, however, you take the view that the defendant did make certain admissions at a time when he was not suffering from acute stress disorder – stress may be, but not acute distress disorder, which is a disease – then you will have to decide obviously whether what he was saying in that interview were actual true confessions”

46.  Mr Tam also pointed out that, later when summarizing the reports of the expert witnesses, the Judge repeated:^[41]

“… Dr Nip also dealt with a section of the report … in which the discussion is about the police interview and I have told you already that if you cannot rely sensibly on the interview because this defendant was not well, had a disease, acute stress disorder, then do not hold anything against him from anything that he said, because … he shouldn’t have been interviewed …”

47.  Mr Tam contended that although the Judge did not follow the specific wording of the previous Specimen Direction 39 or the current Specimen Direction 113, he nevertheless explained to the jury in appropriate terms the relevant principles of Mushtaq. He submitted there was no misdirection.

48.  It was also observed by Mr Tam, that Mr Cheung mounted a similar argument in Tam Ho Nam (No 2), in which the same judge’s directions in respect of the out-of-court statements of the applicant in order to determine whether the two key principles of Mushtaq were made clear to the jury in respect of provocation. This Court’s consideration of the Judge’s directions on the video recorded interviews was endorsed by the Appeal Committee as follows:^[42]

“10. However, as the Court of Appeal concluded, in their careful analysis, the key principles of Mushtaq were adequately conveyed to the jury in the trial judge’s directions on the VRIs. We also agree with the Court of Appeal that, on a fair reading of the summing up, the jury would not have been left with the impression that they must be sure that the applicant was oppressed into taking part in the VRIs before ignoring them or that he bore any burden of proving his allegations of oppression. …” (Citations omitted)

The equivocal admission of taking out the knife

49.  Mr Tam argued that when read in their proper context, the applicant’s answers in his video recorded interview, revealed that he admitted he took the knife out of the box. He rejected the argument that the applicant’s admission was equivocal.

50.  Mr Tam noted that the applicant mentioned his argument with the deceased in his video recorded interview.^[43] The applicant referred to the box with the knife inside^[44] and went on to say that he wanted to peel an apple, but the deceased threw herself at him, and he stabbed her inadvertently.^[45] When the applicant was asked whether he took out a knife to peel an apple, he said “Huh”.^[46] However, he confirmed that he was holding the knife at the time.^[47] Later on in the interview, when the box was shown to the applicant, the following exchange took place:^[48]

“918. A Well, my colleague is going to open it now. Inside this box, did you, open it. Did (you) take out one of the knives from this, this set?

919. C Yes, yes, took that, that, this one, I didn’t use t-t-these two.”

51.  When considering the video recorded interview as a whole, Mr Tam argued that it was clear the applicant admitted unequivocally to taking the knife out of the box. Accordingly, the Court of Final Appeal judgment in Zhou Limei had no application.

Ground 2: The directions on the sister’s evidence

52.  Of the Judge’s directions regarding the sister’s evidence, Mr Tam referred to HKSAR v Or Chung Yeung^[49]. He submitted that the omission of a direction in the event that defence evidence may be true would not automatically render a conviction unsafe. He argued it was, therefore, relevant not to overlook the facts of the case and the entirety of the directions. He also referred to the Court of Appeal decision of HKSAR v Zhou Limei^[50], which disagreed with the proposition that the Judge had to give a Liberato direction on every factual issue.

53.  Mr Tam acknowledged that the sister’s evidence was relevant to the applicant’s state of mind and whether he intended to kill or cause really serious harm. Consequently, her evidence was also relevant to the partial defence of provocation. On the issue of the applicant’s intention, it was pointed out that the Judge provided oral and written directions to the jury explaining the ingredients of the offence of murder, and explicitly directed them that before they could convict the applicant of murder, they had to be sure, amongst other things, that:^[51]

“… the [applicant] either intended to kill [the deceased] or he intended to cause her grievous bodily harm, in other words really serious bodily harm.

If you are not sure of any one of those ingredients, then the defendant must be found not guilty of murder.”

He also noted that the Judge directed the jury on the standard and burden of proof concerning manslaughter by a dangerous and unlawful act, where an intention for murder could not be proved.^[52]

54.  Mr Tam emphasised that the sister did not witness how the fatal stab wound was inflicted on the deceased. She only saw a struggle. Furthermore, her evidence was only one of the various matters to be considered. Given the Judge’s repeated proper directions on the standard and burden of proof throughout the summing-up, in particular, the clear direction that the jury could only convict the applicant of murder if they were sure of all the ingredients of the offence, and not convict if they were not sure, he submitted that there was no risk of the jury convicting the applicant of murder should they find a reasonable doubt arising from the sister’s evidence.

55.  Of the partial defence of provocation, it was pointed out that the Judge directed the jury both orally and in writing:^[53]

“… if you are sure that [the applicant] unlawfully killed [the deceased] intending to kill her or cause her really serious bodily harm, [the applicant] is guilty of murder unless you conclude that this was or may have been as a result of provocation … Because the prosecution must prove [the applicant]’s guilt, it is for the prosecution to make sure that this was not a case of provocation, and not for [the applicant] to establish that it was.” (Emphasis added)

56.  Having been directed to consider the applicant’s video recorded interview and the sister’s evidence by the Judge,^[54] the jury were also told that the partial defence of provocation would apply if they concluded that the applicant “may have suddenly and temporarily lost his self-control and assaulted the deceased as a result of something said or done by the deceased”^[55] (Emphasis added). It was submitted that the Judge’s directions were clear and unambiguous, and it could not be realistically argued that the jury would have wrongly rejected provocation if they found that the sister’s evidence might be true.

57.  Taking the summing-up as a whole, Mr Tam submitted that the substance of the Liberato direction had been effectively conveyed to the jury. There could not have been any confusion in the mind of the jury on the burden and standard of proof, and there was no real prejudice to the applicant in the circumstances. He contended that the verdict in the present case was neither unsafe nor unsatisfactory.

Discussion

58.  As a matter of good practice, specimen directions should be followed and appropriately applied. However, as this Court has frequently emphasised, specimen directions are a guide only and may require to be suitably tailored to the individual case. Sometimes, a judge may have failed to adequately direct the jury in accordance with a specimen direction, and this may constitute a material irregularity in the trial. At other times, the judge may not have directed the jury in the exact terms stated in the specimen direction but nonetheless appropriately conveyed the relevant instruction or requirement sought to be addressed. The latter often occurs when a judge has tailored the specimen direction to meet the circumstances of the case.

59.  When there is a challenge to a judge’s direction, it is essential, to consider the summing-up as a whole, reading the direction in the context of the summing-up, rather than parsing the direction, word by word or phrase by phrase. As stated by Macrae VP in Tam Ho Nam (No 2)^[56], it is important that appellate courts do not simply lift a sentence from a summing-up that appears not to conform to a particular specimen direction or statement of the law approved by the courts, but examine it in context, looking to the summing-up as a whole to see whether the substance of the direction has been effectively conveyed and the summing-up is otherwise fair. Even when it is not, there must be some assessment of whether, in context, there was real prejudice as a result.

Ground 1: Directions in relation to the applicant’s video recorded interview

60.  The complaint under the first ground is that the Judge failed to give proper directions about the applicant’s video recorded interview. This ground is broken up into two parts. First, it is averred that the Judge failed to convey to the jury the key message of the Mushtaq direction that they must disregard the applicant’s video recorded direction if they found that the applicant might not be mentally fit to be interviewed, and that he also wrongly directed the jury to the effect that they must disregard the applicant’s video recorded direction only if they took the view that the applicant really was not fit to be interviewed. Secondly, it is averred that the Judge failed to direct the jury that unless they were sure that the applicant made an unequivocal admission that he took the knife out from the box, they could not rely on such an assertion from the prosecution.

61.  By way of background, it is relevant to note that there was a challenge to the admissibility of the applicant’s video recorded interview on the basis that his mental condition affected him at the time of the interview. There was no allegation that the applicant’s participation in the video recorded interview was involuntary or that there was oppressive conduct or something said or done by the police officers to render his admissions unacceptable or unreliable. Furthermore, there was no challenge to the applicant’s statements to the police before or after he was cautioned. After a voir dire, the Judge ruled that the video recorded interview was admissible.

62.  The applicant did not testify, so there was no evidence from him in support of his complaint concerning his participation in the video recorded interview, except for the expert evidence of Dr Nip, who expressed the opinion that the applicant was not mentally fit to be interviewed because he suffered from acute stress disorder at the time.^[57] It was submitted on the applicant’s behalf that this was a factor to be taken into account in deciding whether the applicant had made an unequivocal admission that he had taken the knife out of the box.^[58] In contrast to this submission, the defence relied heavily on the applicant’s answers in his video recorded interview and even played portions of it as part of the defence closing speech.^[59]

63.  It is also relevant to note that the applicant was asked if he was physically fit to participate at the outset of the video recorded interview. He said it should be all right and his condition was better. He also acknowledged that he understood what the interviewer was asking him.^[60] There was nothing to suggest that he did not understand the questions, or that he was in any way inhibited from answering them. Of course, the interview was video recorded, so the jury had a visual and audio record of it to see and hear the applicant answering questions asked of him.

Failure to give a Mushtaq direction

64.  The impugned passage of the Judge’s summing-up reads as follows:^[61]

“Dr Nip, who I will come to in a moment, told you that in effect the defendant was not fit to be interviewed on that day, because he suffered from a disease called acute stress disorder and so really anything that he said which was against his interests is valueless according to Dr Nip because he was not fit to be interviewed. So the law takes this view about that kind of thing: If you take the view that Mr Nip is correct and that the defendant really was not fit to be interviewed, you must not hold against him anything which was said by him in the interview which is against his interests. Of course, that will depend on your view of Dr Nip: Was he right about that or was he wrong about that?”

65.  Mr Cheung argued that the Judge failed to give a proper Mushtaq direction. He submitted that the Judge did not address the possibility of the evidence raising a reasonable doubt if they found that the applicant “may not” have been fit to be interviewed.

66.  Immediately after the impugned passage, the Judge went on to say:^[62]

“If, however, you take the view that the defendant did make certain admissions at a time when he was not suffering from acute stress disorder -- stress maybe, but not acute distress disorder, which is a disease -- then you will have to decide obviously whether what he was saying in that interview were actual true confessions and you know on the other side of the coin that the defence, and Mr Luk in particular yesterday, was relying very heavily on the answers made by the defendant towards the end of the interview when he was saying he had no intention of causing serious bodily harm and certainly not to kill his wife. So those are the conflicting matters which you will need to bear in mind. But I draw them to your attention now because of the evidence of Dr Nip, which was that the defendant was suffering from acute stress disorder during that interview and effectively was not fit for interview at all.”

67.  In this passage, the Judge reminded the jury that the defence relied on the answers the applicant gave in the video recorded interview in support of his case, as well as submitting that the applicant was not fit to be interviewed. The Judge next addressed the fact that the applicant had not given evidence, instructing the jury that it should not be held against him in any way and that they had to be sure of his guilt on the prosecution evidence but bearing in mind the defence evidence:^[63]

“So the position is this that as he does not have to prove anything himself, well then, of course he is perfectly entitled to stay where he is and you cannot from that deduce anything one way or the other and obviously, and I hope I hardly need to say this, you do not assume that he is guilty because he did not give evidence. I am sure you would not do that.

On the other hand, it does mean that you have no evidence from him to undermine or contradict or perhaps just explain some of the evidence which has been put before you by the prosecution. Anyway, plainly you are left without his evidence having to decide whether on the prosecution's evidence, you are sure of his guilt and bearing in mind the evidence of the witnesses that were called by the defence, to whom I will turn in a few moments, because you will treat them of course in precisely the same fair way that you assess any other witness in this case.”

68.  The Judge concluded this part of his summing-up by reminding the jury of Dr Nip’s evidence:^[64]

“Again, Dr Nip had something to say about the interview, which may or may not be important. He said there are lots of memory gaps and he explained those gaps as being the result of what he called dissociative amnesia. Dissociative amnesia. It was as if, in other words, what he was talking about did not concern him at all, somebody else, and he talked also about confabulations and what he meant by that was that the defendant was making guesses to fill in the gaps which were left in the answers that he was making.”

69.  The Judge mentioned the dispute between the two psychiatrists regarding the applicant’s mental condition and told the jury to consider the expert evidence and the other evidence. He returned to Dr Nip’s evidence, reminding the jury:^[65]

“As I said to you before, when I was talking about expert evidence, it is trial by jury, not trial by expert and sometimes experts are right and sometimes they're not and it is for you to decide in this case who is correct and, if it may be that Dr Nip is correct, well, then, of course you will regard that evidence in favour of the defendant on the issue which Dr Nip has described to you. He says that the defendant was of diminished responsibility at the time of the offence.

All right. Well, now, Dr Nip. You have got his qualifications. You have in your bundle the whole of his report. You also have his notes made after he had seen Dr Liu's report, which said the opposite of what he was saying. He says that, just as an overview, on 29 July, on Kwong Wah Hospital, looking at that very last letter in the small bundle, he says that is a letter of referral to West Kowloon. He says at that time the defendant was suffering from a disease known as anxiety disorder and he took it to be a diagnosis of anxiety disorder, that last letter in the bundle, the small bundle, and when he made his report this year, on 23 May, when he made his report, which is just about, what, two months ago or so, I told you that in his opinion, based on the information that he'd been given, the defendant was at the time of the killing suffering from panic disorder, that is a disease, and it is that which led him to believe that the defendant had diminished responsibility for the killing.

On the following day, when the defendant was interviewed, the defendant had what he called acute stress disorder. that is a different disease under the same umbrella of anxiety disorder. The importance to the defence of that evidence only relates of course to the quality of the interview? Was he mentally fit to be interviewed or was he not. Dr Nip says he was not fit to be interviewed.” (Emphasis added)

70.  After discussing Dr Nip’s evidence in detail, the Judge concluded:^[66]

“Dr Nip said that the interview with the police showed memory gaps. Dissociative amnesia was his answer to that, and many times in the interview the defendant was using words like maybe, possibly, things like that.

Dr Nip said that the psychological distress displayed in the interview, stuttering, body restlessness, hand tremors and so on, was all inappropriate disinhibited behaviour, such as picking up a card on the table -- I think it was an ID card, was not it -- although police had tried to stop him, and the defendant frequently repeated answers to the effect that he'd lost interest in living so that the police had to calm him down. He had chaotic thoughts which were reflected in the answers, such as asking the police officer what his surname was when replying to questions which had nothing to do with the sergeant's name.

Dr Nip also dealt with a section of the report, I think it is 14, in which the discussion is about the police interview and I have told you already that if you cannot rely sensibly on the interview because this defendant was not well, had a disease, acute stress disorder, then do not hold anything against him from anything that he said, because, if he (wasn’t) well enough to be interviewed, he shouldn't have been interviewed and do you see right at the bottom of the very last sentence actually of paragraph 14, it is concluded that in retrospect the defendant was medically unfit for police video-recorded interview at that point when it was undertaken. It can't be clearer than that. Now, is that right or not? You have seen the interview, you have heard the answers. Was he unfit or not?” (Emphasis added)

71.  The reference to paragraph 14 of Dr Nip’s report was where the doctor expressed the view that the mental fitness of the applicant was “probably questionable”.^[67]

72.  To put the applicant’s complaint in context, the issue at trial was whether he should be convicted of murder or the lesser charge of manslaughter.^[68] The applicant admitted to killing the deceased by stabbing her inadvertently but denied an intention to kill her or to cause her grievous bodily harm. He also relied on the defences of diminished responsibility and manslaughter by reason of provocation or unlawful and dangerous act.

73.  As noted, the applicant did not give evidence. In addition to calling Dr Nip as to his state of mind at the time of the incident and when the police questioned him, he called his sister. She testified that there was a struggle between the couple, with the deceased bleeding from a stab wound. The applicant relied on certain parts of his video recorded interview but at the same time challenged making an unequivocal admission that he took the knife out of the box.^[69]

74.  The first part of this ground is that the Judge failed to direct the jury that they should disregard the applicant’s video recorded interview if they found that the applicant “might” not be mentally fit to be interviewed. Instead, the Judge wrongly directed the jury that they should disregard the applicant’s video recorded interview only if they took the view that the applicant was not fit to be interviewed.

75.  Relevantly, the only contentious issue raised by the applicant about his video recorded interview was whether he made an unequivocal admission that he took the knife out of the box. This is the subject of the second part of this ground.

76.  Mr Cheung complained that in the impugned direction, the jury were directed to disregard the applicant’s video recorded interview only if they accepted that the applicant was really unfit to be interviewed, but not if they accepted that he might be unfit to be interviewed. However, this was not the only word from the Judge about Dr Nip’s evidence concerning the applicant’s mental fitness to participate in an interview with the police. When addressing in detail Dr Nip’s evidence, the Judge told the jury, “if it may be that Dr Nip is correct, well, then, of course you will regard that evidence in favour of the defendant on the issue which Dr Nip has described to you”^[70] (emphasis added). He then described Dr Nip’s evidence regarding diminished responsibility and the applicant’s mental fitness to be interviewed.

77.  The Judge repeatedly reminded the jury that they had to be sure of a fact or matter before they could rely on it against the applicant. Of course, the converse was true: if they were not sure of something, they could not rely on it.

78.  The Judge directed the jury about the criminal standard of proof. He instructed them that the prosecution carried the onus of proving the guilt of the applicant beyond a reasonable doubt. No complaint has been made about these directions. The Judge made it abundantly clear to the jury that if Dr Nip “may be” correct, then they were to regard this evidence in the applicant’s favour, namely that he was not mentally fit to be interviewed and therefore, anything he said could not be held against him.

The equivocal admission of taking out the knife

79.  In the second part of this ground, it is contended that the Judge failed to direct the jury that unless they were sure that the applicant made an unequivocal admission that he took the knife out from the box, they could not rely on such an assertion from the prosecution.

80.  Counsel in their respective closing speeches to the jury, addressed the issue as to whether the applicant had made an unequivocal admission that he took the knife out from the box.^[71] Mr Cheung only referred to a select set of questions and answers^[72], but it is clear from reading the transcript as a whole that the applicant admitted unequivocally to taking the knife out of the box.^[73]

81.  As to how he stabbed the deceased, the following exchange took place:^[74]

“674. A Let’s talk about the previous part first, talk about the previous part, that is, (you) said that, er, (you) had, er, something happened between you and ah DENG Genzhu, and then you asked her to sit down there.

675. C Huh.

676. A To sit down there, and then, you saw that box of knives, and what (happened) then? You say (it) first.

677. C That is, h-how, those knives were usually, sometimes, now, (I) seldom eat apples with peel.

678. A Hm (homonym).

679. C Well, maybe, I wanted to peel an apple. She then moved her arms and legs (used force). (So) she was stabbed inadvertently, [not clear].

680. A That is, at that time, you, what do you mean?

681. C That is, (I) wanted to peel some fruit to eat.

682. A Yes.

683. C She threw, threw herself at (me), and moved her arms and legs (used force), maybe, (and I) stabbed her inadvertently. I didn’t mean to stab her. I didn’t mean to stab (one wrong character) her. I am really, I am really, v-very upset because (we) have been husband and wife for many years, ah, I am so upset.

684. A (I) know.

685. C I am so old, and (my) wife was like that, I (…)

686. A Say (it) slowly.

687. C Who will marry me (?)

688. A Say (it) slowly.

689. C Who will marry me (?) I say, (I) am ill, virtually physically handicapped.

690. A Listen.

691. C Ai.

692. A That is to say, at that time, you, you, just now, (you) said that, (you) were still talking about it, that is, (you) had a little, had a little conflict with DENG Genzhu at that time. You saw that knife. You took the knife. You said that (you) took that box of knives, that box of knives. You intended to peel an apple to eat.

693. C You asked those ah Sir. On our table, the flat was very small. On the table (transposition), on the table, (there were) apples and everything. The fridge was very small too.

694. A That is, just now, did you say (…)

695. C Huh.

696. A Just now, did you say, say that you wanted to get an apple to eat, so you took the knife to peel (it?)

697. C Huh.

698. A Therefore, did you take (it), so how’s (it)?

699. C Therefore, (I) lifted, she herself, er, was irritated (one wrong character), well, maybe, (she) threw herself at (me), maybe, (I) stabbed her inadvertently. I didn’t mean to stab her. Don’t, don’t what, I am so old, ai, (in case) something happens (…)

700. A Well, were you holding the knife at that time?

701. C I was holding the knife at that time.

702. A Huh, what happened then? The knife, do you remember what happened? Say (it) slowly.

703. C Well, maybe, that is, that is, the place was narrow, maybe, out of, out of, that is, that is, we bumped, that is, pushed (one wrong character), pushed (one wrong character) (each other) only. I didn’t, I didn’t mean to stab her. Frankly speaking, I am so old. I am like that now. If I die, it’ll be the end of my life. But even if I don’t, I wouldn’t be far from it.

704. A How’s the knife then? That is, and then, how was it like when you were holding the knife at that time?

705. C That is, maybe, maybe, she was stabbed inadvertently.

706. A How (“) inadvertently (”) was (it)?

707. C That is, she threw herself at (me), maybe, maybe, she was stabbed.

708. A How come she would throw herself at you?

709. C Very often, she would move her arms and legs (use force).”

82.  We are unable to accept the submission that the applicant was equivocal about taking the knife out of the box. He said he wanted to peel an apple. He was holding the knife, and the deceased was stabbed by him inadvertently. In any event, the Judge gave a very detailed summary of the applicant’s answers in his record of interview. It was appropriately a matter for the jury to determine whether he had made an unequivocal admission that he had taken the knife out of the box. There was no need for further directions from the Judge on this factual issue.

83.  We are not persuaded that there is merit in this ground of appeal.

Ground 2: The directions on the sister’s evidence

84.  On this ground, Mr Cheung complained that the Judge misdirected the jury in respect of the sister’s in-court evidence because he contrasted it with her account to the police in her cautioned interview; and failed to give a Liberato direction that they could act on her evidence if they found it “might be true”.

85.  The simple answer to the first complaint is that the Judge did no more than address the fact that the sister gave two conflicting accounts of what had happened at the time of the killing of the deceased. The Judge summarised the cross-examination of the sister, in which she was questioned about her previous inconsistent statements. This was entirely proper in the circumstances.

86.  The second complaint concerns the lack of a Liberato direction or, more particularly, the Judge’s failure to tell the jury that they could act on the sister’s evidence if they found it might be true. However, this complaint raises two issues. The first relates to the circumstances in which a Liberato direction should be given. This will require a detailed discussion of the terms and application of the direction in light of recent developments in the law.

87.  The second relates to the expression “might be true” when referring to defence evidence. There is a tendency to overlook that this expression stems from the fundamental requirement that the prosecution must prove a defendant’s guilt beyond a reasonable doubt, which is routinely emphasised with a jury by the customary direction on the onus and standard of proof.

88.  It is suggested that a jury should usually be directed that if the account given by a defendant or put forward by the defence is true or might be true, then he or she must be acquitted.^[75] Of course, this will depend on the account given, but general experience has shown that a defence will be put forward on the basis that it seeks to exonerate the defendant of the crime alleged against him or her. On this point, it is noted that Mr Cheung is not submitting that the Judge should have directed the jury that they must acquit the applicant if the sister’s evidence might be true, but rather that they could act on it. However, he does not explain how the jury could, in those circumstances, have acted upon the sister’s evidence. It appears he is suggesting that the sister’s evidence may have created a doubt that could have had a bearing on the offence of murder and the partial defence of manslaughter by provocation. The Judge repeatedly conveyed to the jury that if they had a doubt or were not sure as to the guilt of the applicant for the offence of murder, they should acquit him. Of provocation, he told the jury that if the applicant “may” have lost his self-control and that a person of the applicant’s age and characteristics “may” also have formed the intention to kill or cause really serious bodily harm to the deceased, then the partial defence would apply. There would appear to be little basis for the complaint with the Judge’s directions.

89.  After the jury retired to consider its verdict, they submitted a question to the Judge and asked him to explain “provoked” in the legal sense. Having consulted counsel, the Judge answered the question by telling the jury, among other things, that as a starting point, if they were sure that the applicant unlawfully killed the deceased intending to kill her or cause her really serious harm, he was guilty of murder “unless you conclude that this was or may have been the result of provocation.”^[76]

90.  In light of the complaints made under this ground, it is necessary to examine the origins and the development of the Liberato direction both here and in Australia, from where it originated.

The Liberato direction

91.  The Liberato direction originates from the eponymous case of the High Court of Australia in Liberato v The Queen^[77]. It is derived from the dissenting judgments of Brennan and Deane JJ.

92.  In that case, the accused were jointly tried for the rape of the complainant. Each accused admitted to having sexual intercourse with the complainant but claimed to have believed that she was consenting. The trial judge in his summing-up to the jury, invited them to choose between the prosecution and defence evidence. This invitation followed upon a serious misdirection that the accused was entitled to be acquitted if they were satisfied (beyond reasonable doubt) that he had an exculpatory belief as to consent, and “if that gives rise to a doubt” about the accused’s guilt. As explained by Brennan J, the jury may have understood that the trial judge was directing them that if it were possible that an accused believed the complainant was consenting, they might acquit provided they were satisfied that he had the belief, and provided such a belief, gave rise to a doubt as to whether he knew that she was not consenting or was recklessly indifferent as to whether she was consenting or not.^[78]

93.  The source of the Liberato direction is Brennan J’s reasons in his dissenting judgment, where he said:^[79]

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”

94.  Deane J agreed with Brennan J that the directions given by the trial judge were confusing about the nature and operation of the criminal onus to the extent that they left the impression that the jury’s task was essentially one of choosing between the prosecution evidence and the defence evidence. He also agreed that it was commonplace for judges to invite the jury to consider which of the conflicting evidence they believed, provided that it was accompanied by “clear and unequivocal directions about the criminal onus and standard of proof, express or implied references in a summing up to a ‘choice’ between particular witnesses are, no doubt, sometimes unavoidable and commonly unobjectionable.”^[80]

The adoption of the Liberato direction

95.  It is important to note that the issue addressed in Liberato was where there is evidence relied upon by the defence conflicting with that relied upon by the prosecution and where a jury might consider “who is to be believed”. In these circumstances, Brennan J said it was essential to ensure the jury were aware that deciding such a question in favour of the prosecution does not conclude the issue as to whether guilt has been proved beyond a reasonable doubt.

96.  It was mainly based on Brennan J’s statement that the courts in Hong Kong have applied what is now referred to as the Liberato direction. It has been cited with approval by the Court of Final Appeal in Lee Fuk Hing^[81] and Jim Fai^[82].

97.  Lee Fuk Hing ^[83]concerned a case where the judge invited the jury to choose between the prosecution and defence versions in such a way that there was a danger that they wholly rejected the defence evidence without considering whether any of the defence evidence may have been true or whether the defence evidence gave rise to any reasonable doubt. Mortimer NPJ, with whom the other judges agreed, explained that the judge in his summing-up to the jury:

“29. … having invited the jury to consider the credibility of the two versions and to choose between them, the judge did not, when directing upon the burden of proof or at any other time, give the usual and proper direction upon the approach to defence evidence were they to find that it may have been true. The danger was that in faithfully following the judge’s directions upon the burden of proof they wholly rejected the defence evidence having preferred that of the prosecution without considering whether any of the defence evidence may have been true or whether the defence evidence gave rise to any reasonable doubt.”

98.  Although Mortimer NPJ cited and adopted Brennan J’s statement, he focused on the danger that the judge’s directions may have led the jury to wholly reject the defence evidence, having preferred the prosecution evidence, without considering whether the defence evidence gave rise to a reasonable doubt. As we will discuss later, Brennan J’s statement, on which the Liberato direction is modeled, causes some difficulty because it instructs a jury to consider whether the defence evidence gives rise to a reasonable doubt even though they do not positively believe it.

99.  There is an important difference in treatment between the prosecution evidence and the defence evidence, but as emphasised by Chan PJ in Jim Fai a direction to the jury on how they should approach defence evidence is intrinsically linked up with the direction on the burden and standard of proof:^[84]

“16. However, there is a fundamental difference between the treatment of defence evidence and prosecution evidence in the jury’s deliberation of their verdict. It is only when the jury feel sure that the prosecution evidence is true and can be relied on that they can convict the accused. If they disbelieve the prosecution evidence or entertain a reasonable doubt in such evidence, they are not to convict upon it. On the other hand, when it comes to defence evidence, even if the jury totally reject it, they still have to be sure that the prosecution evidence is true and that there is no reasonable doubt before they can convict the accused. If they think that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case. In that case, the jury have to acquit him.

17. This crucial difference between the treatment of prosecution evidence and defence evidence necessarily follows from an application of the principle that it is for the prosecution to prove the guilt of an accused beyond reasonable doubt. It is therefore essential, in order to be fair to the accused, that the jury should be properly directed on this aspect in clear and simple terms. As Brennan J said in Liberato & others v R (1985) 159 CLR 507 at p.515: ‘The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.’ This was echoed by Bokhary PJ in HKSAR v Sze Kwan Lung (2004) 7 HKCFAR 475: ‘It was crucial that they receive a clear and accurate direction thereon. …’ (at p.486, para.26) and ‘Whether by one form of words or another and whether in one way or another, that message must be conveyed to the jury.’ (at p.487, para.27) See also Mortimer NPJ in Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, at p.613, paras.28 and 29.

18. The direction to the jury on how they should approach defence evidence is thus intrinsically linked up with the direction on the burden and standard of proof. A wrong direction on the proper approach to be adopted may and often does give rise to confusion in the minds of the jury as to where the burden of proof lies and to what standard it must be discharged.”

100.  Bokhary PJ in Sze Kwan Lung and Others v HKSAR^[85], after referring to Brennan J’s statement, stressed the importance of conveying to the jury the message that they cannot find an issue against a defendant if the defence evidence gives rise to a reasonable doubt as to the issue. Similar comments about Brennan J’s statement were also made by Ma JA (as he then was) in Wong Wai Man (No 2), who noted that the issue as to whether to give a Liberato direction to a jury was a matter of discretion for the trial judge:^[86]

“31. All this of course stems from the fundamental directions in a criminal case as to the burden and standard of proof. Whether or not in any given case a judge will need to go into such detail in his summing up is a matter best left to the individual judge depending on the circumstances.”

101.  The need to give a Liberato direction, or the failure to give one, needs to be considered in the overall context of the circumstances of the case and the summing-up, and whether the general directions as to the criminal burden and standard of proof have sufficiently conveyed the message of a Liberato direction. This was articulated by Bokhary and Chan PJJ, in their joint judgment, in Law Chung Ki and Another v HKSAR, as follows:^[87]

“Depending on the circumstances and the summing-up as a whole, it may be possible for that message to be sufficiently conveyed by general directions as to the criminal burden and standard of proof provided that nothing said in the summing-up runs counter to that message.”

The reconsideration of the Liberato direction

102.  The Liberato direction has been the subject of judicial discussion over the years in Australia, which has resulted in reconsidering its application and reformulating its direction. A starting point is the analysis of the direction by the Victorian Court of Appeal in The Queen v KDY^[88]. Redlich JA, with whom Warren CJ and Forrest AJA agreed, said:

“26. What has become known as a Liberato direction is not required as a matter of law. The dissenting judgments of Brennan and Deane JJ in Liberato deal with the need for a suitable direction when a jury which is faced with a conflict in the evidence of prosecution and defence witnesses has been expressly invited by counsel or the trial judge to consider which is to be believed. The direction in Liberato had invited the jury to make a choice between prosecution and defence evidence — a matter which Deane J described as ‘sometimes unavoidable and commonly unobjectionable. But the invitation in Liberato followed upon a serious misdirection to the jury that they should give the accused the benefit of any doubt where ‘a belief in the accused was something about which the jury was satisfied’. Thus the so called ‘Liberato direction’ has been said to be an appropriate one in many cases ‘where there is a reasonable likelihood that the jury would otherwise obtain the impression that the evidence on which the accused relies can give rise to a reasonable doubt as to his guilt only if they believe that evidence to be true’. Both dissenting judgments in Liberato emphasised that the answer to such a question must be accompanied by clear and unequivocal directions about the criminal onus and standard of proof so that there is no risk that the jury will treat the making of a ‘choice’ between the witnesses as the real question or as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The judgments were not intended to lay down a particular form of direction in relation to the onus and standard of proof but to ensure that the clarity and effectiveness of directions of law on the onus and standard of proof are not compromised by any directions concerning the issue of choice between witnesses who have given conflicting evidence.

27. A jury must be left in no doubt that where there is a conflict between prosecution witnesses and the accused, the question is whether the prosecution proved its case beyond reasonable doubt and not whose evidence is to be preferred. …” (Citations omitted)

103.  Whether a Liberato direction should be given arises when the jury are invited to make a choice between the prosecution and defence evidence. As explained by Redlich JA the dissenting judgments of Brennan J and Deane J were not intended to lay down a particular form of direction about the onus and standard of proof but to ensure that the clarity and effectiveness of directions of law on these two fundamental requirements are not compromised by any directions concerning the issue of choice between conflicting evidence.

104.  A more pointed comment of the Liberato direction modeled on Brennan J’s statement was made by Wheeler JA in Johnson v Western Australia^[89]. She observed that the mischief the Liberato direction sought to address of judges asking the jury to consider who is to be believed had long since disappeared and was generally avoided. Nor did she think the jury would ask themselves that question as the expression “reasonable doubt” was “surely apt to convey that a juror who is in a state of uncertainty about the evidence must refrain from convicting.” She also questioned the last two sentences of Brennan J’s statement. She pointed out that a jury might positively disbelieve and, therefore completely reject the evidence of an accused. Hence, the direction would be positively confusing for them to have been told they could not find an issue against the accused, if the accused’s evidence gives rise to a “reasonable doubt”, because, if the evidence is rejected, it must be set aside, and cannot give rise to a doubt. She urged a reformulation of the direction as expressed in other cases, and the essential point was that the jury’s task was not to choose between opposing accounts but to determine whether the prosecution has proved its case beyond a reasonable doubt.^[90]

105.  Wheeler JA’s suggestion regarding the wording of the Liberato direction was recently endorsed by a majority of the High Court of Australia in De Silva v R^[91]. In that case, the appellant, in a jury trial, was found guilty of having raped the complainant. The complainant gave evidence, but the appellant did not. He relied on his out-of-court statement to the police. The issue before the High Court was whether a Liberato direction should be given when an accused did not give evidence; and whether the directions given to the jury in the circumstances of this case were adequate without a Liberato direction.

106.  In addressing this issue, the majority of the High Court (Kiefel CJ, Bell, Gagelar and Gordon JJ),^[92] at the outset of their judgment, emphasised the importance of directing the jury on the criminal onus and standard of proof when its determination turned on which of conflicting prosecution and defence versions was to be believed, stating that it was:^[93]

“… never appropriate for a trial judge to frame the issue for the jury’s determination as involving a choice between conflicting prosecution and defence evidence: in a criminal trial the issue is always whether the prosecution has proved the elements of the offence beyond reasonable doubt.”

107.  The majority went on to say that in some cases it may be appropriate to give a Liberato direction, which:^[94]

“… serves to clarify and reinforce directions on the onus and standard of proof in a case where there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt.”

108.  However, the majority stressed that such a direction need only be given in cases where the trial judge perceives a real risk that the jury might view their role in this way. It was also acknowledged by the majority that there were specific difficulties with the wording of and the necessity for a Liberato direction and proposed a reformulation of it:

“12. In Johnson v Western Australia, Wheeler JA identified one possible shortcoming in using Brennan J’s statement in Liberato as a template for the direction: a jury may completely reject the accused's evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a ‘reasonable doubt’ on that issue. For that reason, it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused's evidence (if you believe the accused’s account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?” (Citations omitted)

109.  The majority gave further guidance as to the application of such a direction in the following terms:

“13. Whether a Liberato direction is required will depend upon the issues and the conduct of the trial. At a trial where there has been no suggestion, whether express or implied, that the jury’s determination turns on which of conflicting prosecution and defence versions is to be believed, there may be no need to expand on conventional directions as to the onus and standard of proof. As Wheeler JA also observed in Johnson, the expression ‘reasonable doubt’ is apt to convey that a juror who is left in a state of uncertainty as to the evidence should not convict.” (Citations omitted)

110.  In most cases, a Liberato direction will be unnecessary so long as the jury are directed that they may not convict unless they are satisfied beyond reasonable doubt of guilt. The critical criterion for when it is required is that there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful or that a preference for the evidence of the complainant suffices to establish guilt.

111.  We would adopt the reasoning of the majority in De Silva, and the Liberato direction as suggested by them, if and when it is required.

True or might be true

112.  What has become a common phrase in the legal lexicon is “true or might be true” when addressing whether the defence case has raised a “reasonable doubt” in the offence alleged against a defendant.

113.  It is the duty of the judge in the summing-up to give clear instructions to the jury on the standard of proof that they have to be satisfied so that they are sure before they can convict.^[95] Consequently, it is not absolutely necessary to use the phrase “beyond reasonable doubt”^[96], which is the same as “being sure”. Given the fundamental importance of this instruction, judges are urged not to attempt any gloss upon what is meant by “being sure” or “reasonable doubt” as it usually creates difficulties and is more likely to confuse than help.^[97] In HKSAR v Fok Ka Po Joe^[98], Macrae VP, giving the judgment of the Court, said it was both unwise and unnecessary for judges to say anything more about the standard of proof than that which was conveyed by the plain terms of the specimen direction. A jury would well understand what the word “sure” meant, and in reality, one was either sure or one was not sure.

114.  The question arises whether it is required to use the phrase “true or might be true” when instructing a jury that they can only convict a defendant if they are “sure” or satisfied “beyond reasonable doubt”.

115.  It is provided in the Specimen Direction 2 – Burden and Standard of Proof that a jury should be reminded that it is not for the defendant to prove his or her defence and that in respect of each defence canvassed a statement that if the defence put forward is or may be correct, then the defendant is entitled to be acquitted. Part of the suggested direction reads, “if the account is true then he must be acquitted, but he must also be acquitted if that account may be true.”

116.  As stated, this is a reminder that seeks to emphasise the criminal burden and standard of proof. It is a useful phrase that should be employed, but if it is not, it does not necessarily mean that there has been a misdirection or non-direction. It will depend on the particular circumstances of the case and the context in which the issue arises, and largely whether the message has been sufficiently conveyed by the customary directions in clear and unequivocal terms.

117.  The significance of the phrase is evidenced by its inclusion in numerous specimen directions but as an alternative to or emphasis on the standard of proof “being sure”.^[99]

The sister’s evidence

118.  It is appropriate to turn to consider the sister’s evidence. When introducing her evidence, the Judge said:^[100]

“… I want to briefly remind you what she said and, now that you know all of the evidence about her account, you will remember that she said that the wife was the one with a knife and was apparently trying to attack the defendant. You will remember then that she was cross-examined and the statement that she made to the police in a view recorded interview was then put to her very carefully and it was a rather different story. We'll come to it now.”

119.  He then summarised the sister’s evidence in examination-in-chief^[101] and cross-examination.^[102] She testified that she heard the applicant and the deceased quarrelling and shouting at each other. She went to see what was happening and saw them hitting and pushing each other. She suddenly saw a knife with the blade pointed at the applicant. She did not know where the knife came from and who was holding it. They were moving and turning, at which point the deceased, stepped back and was bleeding. She went over to support the deceased, who said to her shortly before she lost consciousness, “I am wrong”.^[103]

120.  In her statement to the police, the sister said she heard it was “very noisy” outside her bedroom and that she did not “remember anything” after walking out of her room. She said she went into her bedroom to read, take notes, and take a nap because she was tired.^[104] She did not mention hearing shouting between her brother and the deceased,^[105] nor that there had been a quarrel between them in the flat.^[106] She claimed in her evidence in court that she could not remember because she was scared^[107] and the only thing on her mind at the time was that she touched the knife.^[108] She agreed in her evidence that this was what she told the police after they had cautioned her.^[109] When queried about the bloodstains on her trousers, she said she knew nothing.^[110]

121.  At the conclusion of the sister’s evidence, the Judge said:^[111]

“All right. Well, now, that is the evidence for your consideration. It is looked at this way and that and you must decide what you make of her account. Was what she saying true or was the truth really what she was saying to the police when she was first spoken to after the event? It is up to you decide.”

122.  Prosecuting counsel, in his closing speech, discussed the sister’s evidence by submitting that even if it might be true, it did not negate that the applicant had murderous intent. He said:^[112]

“So members of the jury, you have -- this is the evidence from Ms Kwan. If you accept her evidence as true, or might be true, in this evidence and also taking into account the autopsy evidence, you ask yourself, where is the evidence of intend to kill or to cause really serious injury to the deceased? The evidence suggests the opposite. The resulting injuries were inflicted without, not with, but without any specific intent required for a murder conviction.”

123.  Defence counsel, in his closing speech to the jury, urged them to take into account the applicant’s statements in his video recorded interview and the sister’s evidence:^[113]

“… Now, there are two issues relating to convicting someone of murder. These two issues are, (1) provocation, and (2) diminished responsibility. These are legal terms. They can be found from the statute.

But you have to consider these two issues and if you consider these two issues, provocation and diminished responsibility in favour, if you consider them in favour of the defendant, then the law requires you to convict him of manslaughter instead of murder.

I would like to first deal with the issue of provocation. It is for the prosecution to prove that there is no provocation and that they have to disprove it, or negative it beyond a reasonable doubt. That means that this is their burden. They have this burden of proof.

If after considering the evidence you take the view that there was, or there might have been provocation, then you should return a verdict of not guilty of murder, but guilty of manslaughter. As Mr Chau has fairly said, there is no burden on the defence.

To determine this, we would invite you, members of the jury, to turn to the evidence. First the evidence of the defendant in the video-recorded interview and then you should consider Ms Kwan’s evidence because she was present in Flat B at the material time.”

124.  Defence counsel went on to remind the jury of the sister’s evidence that he submitted supported the applicant’s defence that he had been provoked:^[114]

“Her evidence consists of, Ms Kwan’s evidence, the sister’s evidence, consists of words said by the deceased and she described conduct of the deceased as well. Both words and conduct were directed at the defendant. Now, this morning, I’ve just gone through her -- I read through her, my notes of the proceeding on this part of her evidence. I shall not repeat it now.

To the defendant, the provocation by his ex-wife, the deceased, must have been very strong indeed. And you may think that what was said and what was done by the deceased was such that any man of the defendant’s age who had an ordinary power of self-control, would have done what the defendant did in the present case.

Now, the law provides that if this was the case, or if this might have been the case, so it’s two situations. If this was the case then of course, provocation, manslaughter. If this might have been the case, still the answer, the law requires the verdict must be, because if this might have been the case then provocation is there. The prosecution would have failed to negative, namely to prove that there was no provocation.

Bear in mind please, that the standard is a high one.  It’s proof beyond a reasonable doubt.  So if there might have been provocation, or of course if there was provocation in the sense that I’ve explained, your proper verdict would be one of manslaughter and not murder.”

125.  The closing speeches reveal how the jury were asked to consider the sister’s evidence and its relevance to the issues in this case, particularly in respect of the partial defence of provocation. Both counsels urged the jury to consider the sister’s evidence if it might be true but naturally in the context of their individual cases.

126.  The complaint under this ground is that the Judge failed to give the Liberato direction as regards the sister’s evidence but instead misdirected the jury by repeatedly inviting them to decide whether they believed her evidence, thereby creating a real danger that the jury had not acted on the sister’s evidence when considering the defence case even if they found that it might be true.

127.  This ground of appeal betrays a misunderstanding of the purpose and application of a Liberato direction. Mr Cheung, in calling for a Liberato direction in the present case, was incorrect because his argument was premised on two versions given by the sister, not a conflict of evidence between the prosecution and the defence.

128.  In his directions to the jury, the Judge described the main issues at the trial. He directed the jury on the elements of the offences and that to convict; they had to be satisfied beyond reasonable doubt of those elements. He addressed the defences of diminished responsibility and provocation and the alternative verdict of unlawful and dangerous act manslaughter in case the jury was not sure the applicant had the intention for murder. In respect of the burden and standard of proof, he stressed that the burden of proof was on the prosecution. He reminded the jury that it was for the prosecution to prove its case and not for the applicant to prove innocence.

129.  In our view, the Judge fairly and accurately summarised the sister’s evidence. The issue with her evidence in court was that she gave a very different account of the incident in her video recorded interview. As a result, she was extensively cross-examined about her previous inconsistent statements. It was an obvious matter that the Judge had to address in his summing-up to the jury. In her evidence in court, the sister said she witnessed the couple arguing and then there was a struggle between them. She said she saw a knife pointed at the applicant, but when the deceased stepped back, she was bleeding.

130.  When discussing the knife, the Judge said:

“… Now, here is the importance of the knife in this case. On the defence account, the reason why the defendant's sister could not remember anything of any real importance when she was spoken to by the police just after this incident -- well, just after, a day after -- was because she was so concerned that she touched the knife and had thrown it away in the wash room. Very important to the defence case that part of it, because that explained, it is said, why she was really unable to remember anything. She was just concentrating on the awful thing that she touched the knife and forgot everything else.”^[115]

…

“Was the knife being used as an excuse by the sister for forgetting everything when she was spoken to by the police on the day after the incident? That is a question for you, because that is what she says happened, “I could not remember anything, I was only thinking about the knife.”^[116]

131.  The sister’s evidence, although challenged, was limited. She did not witness how the fatal wound or the other wounds were inflicted on the deceased. She claimed she only saw an argument and a struggle between the applicant and the deceased. There was no issue that the applicant fatally stabbed the deceased, nor that the injuries she sustained were inflicted by him, namely a cut and three stab wounds, one of which went through her heart and penetrated her liver.

132.  No complaint has been made against the judge’s directions on the law regarding the offence of murder and manslaughter defences. Putting aside the defences of diminished responsibility and provocation, the jury were directed in respect of the offence of murder that they had to be satisfied beyond reasonable doubt that the applicant, amongst other elements, intended to kill the deceased or to cause her really serious bodily harm, and if it had not been proven to consider the elements of manslaughter by an unlawful and dangerous act.

133.  The Judge repeatedly explained to the jury the onus and standard of proof in clear and unequivocal terms. In our judgment, the jury would have clearly understood that the onus was on the prosecution to prove its case beyond reasonable doubt and that a doubt may be raised by defence evidence that was or might be true. The jury would have been aware of their obligation to consider all the relevant evidence and focus on the key issues in dispute. A critical part of that function was to assess the credibility and reliability of witnesses, and the bearing their evidence would have on the case and issues in hand.

134.  In our view, a Liberato direction was not needed in the circumstances of the present case, nor that part of it about whether the sister’s evidence might be true, as the Judge had given repeated and correct directions on the onus and standard of proof. In unmistakable terms, they conveyed to the jury that the prosecution bore the onus of proof and that they had to be satisfied beyond reasonable doubt of the applicant’s guilt. When a jury is directed to consider whether the defence evidence might be true, it is just another way to ask them to consider whether they have a reasonable doubt in respect of that evidence. Furthermore, there was nothing in the summing-up to suggest that the jury might have been left with the impression that the sister’s evidence could give rise to a reasonable doubt as to the applicant’s guilt only if they believed the evidence to be true.

135.  We are satisfied that there was no risk of the jury convicting the applicant of the offence of murder should they have found a reasonable doubt arising from the sister’s evidence.

The appeal against sentence

136.  The applicant has not advanced any grounds of appeal against sentence, which is not unexpected as the sentence of life imprisonment is mandatory upon conviction for the offence of murder. Accordingly, there is no need to address this matter any further.

Conclusion

137.  It follows from the reasons we have given that the applicant’s grounds of appeal against conviction are unsustainable. The applications for leave to appeal against conviction and sentence are accordingly refused, and the appeals are dismissed.