CACC 177/2021
[2022] HKCA 1777
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 177 OF 2021
(ON APPEAL FROM HCCC NO 52 OF 2020)
_______________
HKSAR
Respondent
v
Lai Kan-yau (黎謹友)
Applicant
_______________
Before: Hon Zervos JA in Court
Date of Hearing: 30 November 2022
Date of Judgment: 8 December 2022
________________
J U D G M E N T
________________
1. The applicant was indicted for the murder of his father and theft of $203,000 from his father’s bank account. He pleaded guilty to the theft and not guilty to the murder. On 5 August 2021, following a trial before Yau J and a jury he was convicted of the murder. He was sentenced to life imprisonment for the murder and 2 years and 3 months’ imprisonment for the theft, which was ordered to run concurrently with the sentence for the murder.
2. The applicant seeks leave to appeal against his conviction for the murder.
The brief facts
3. On 6 December 2018, the body of the applicant’s father (the deceased) was found in a red-white-blue bag floating in Waterfall Bay. After the police had identified the body, they telephoned his son, the applicant, who was in Taiwan. He admitted to the police officer that he had killed his father. He returned to Hong Kong later that night, and when he was arrested at the airport, he repeated his earlier admission that he killed his father. The applicant participated in a video recorded interview on three occasions and a video recorded reconstruction of the case. He provided details of the circumstances surrounding the killing of his father and the disposal of his body.
4. The prosecution’s case was that the applicant, having brought a knife with him to the flat, murdered his father to steal the father’s bank savings, including recently deposited retirement proceeds from an MPF account, in order to pay off a large debt to a loan shark (Mr Wong), who was pressuring the applicant for repayment.[1] There was expert evidence from a pathologist (PW3) and a toxicologist (PW4) that the father, having consumed alcohol and drugs for back pain and insomnia, was “at least very dull” with an “impaired response to pain” at the material time.[2] From this evidence and the inconsistencies in the applicant’s various accounts of what happened in the father’s flat, the prosecution submitted the father had not been violent or abusive towards the applicant at the material time.[3]
5. The defence case was that the applicant had the knife with him because he was going to use it to commit suicide after seeing his father one last time.[4] The applicant had become suicidal because he could not pay his large debts. He thought his death would protect his wife and new-born child from harassment from the loan shark.[5] After having breakfast together, they returned to the father’s flat, where the applicant massaged his father’s back. When the applicant asked his father for a loan of $200,000, the father reacted violently and verbally denigrated the applicant, his new wife and his child.[6] His father’s sudden reaction caused the applicant to retrieve the knife from his backpack and use it on his father because he had been provoked and lost his self-control.[7] In his testimony, the applicant accepted he was guilty of manslaughter.[8]
The grounds of appeal
6. Before I address the grounds of appeal, it is appropriate to note that the primary task of a Single Judge in a leave application is to determine whether there are reasonably arguable grounds of appeal which afford some reasonable chance of success: HKSAR v Chung Ho Yin [9] .
7. The applicant is represented by Mr Simon N M Young and Mr Simon So, who filed amended perfected grounds of appeal on 3 November 2022. The first three grounds concern the judge’s failure to properly direct the jury on post-offence conduct, which will be dealt with together. The fourth ground relates to the judge’s directions on provocation and inferential reasoning. The fifth ground complains of non-disclosure of material by the prosecution.
Grounds 1 to 3
8. The first three grounds complain about the judge’s handling of the post-offence conduct in the following terms.
9. The judge erred in failing to direct the jury that the applicant’s postoffence conduct had no probative value in determining whether he was guilty of murder as opposed to manslaughter, where
(1) the applicant admitted to killing his father and indicated a willingness to plead guilty to manslaughter;
(2) his post-offence conduct, capable of being explained by his consciousness of guilt for committing manslaughter of his father, ceased to have probative value as a primary fact from which to infer the applicant had the mens rea for murder or was not provoked to lose his self-control; and
(3) the judge directed the jury to ignore the applicant’s flight from Hong Kong to Taiwan (on 6 December 2018) and not to use the applicant’s lies as strengthening the prosecution’s case, such evidence of flight and lies being indistinguishable in evidential value from the applicant’s other post-offence conduct[10] (Ground 1).
10. The judge erred in failing to direct the jury that no inference from the post-offence conduct should be drawn in support of the prosecution’s case for murder unless they were sure there was no other explanation for the conduct[11] (Ground 2).
11. The judge erred in failing to warn the jury that:
(1) post-offence conduct can never, on its own, prove a defendant’s guilt for the offence charged;
(2) a defendant should not be convicted of the offence charged simply because of his post-offence conduct; and
(3) there may be reasons for a defendant’s post-offence conduct other than the consciousness of guilt for the offence charged[12] (Ground 3).
12. Mr Young argues that the judge erred in failing to direct the jury that (1) the applicant’s post-offence conduct had no probative value, and if it did, (2) they could not draw an inference in determining whether he was guilty of murder. The post-killing conduct can be summarised as follows:
(1) the applicant’s failure to call an ambulance or the police;
(2) his purchase of items to clean the flat and dispose of his father’s body;
(3) his disposal of blood-stained items;
(4) his attempt to dismember his father’s body and his preparations and placement of his father’s body in a bag;
(5) his hiring of a van and disposal of his father’s body at Waterfall Bay.
13. The judge directed the jury that according to the prosecution, the post-killing conduct was probative of the applicant’s intention for murder:[13]
“So the defendant was saying that he did not have the intention to kill or to cause really serious bodily harm to Lai.
The prosecution says that you can infer from his actions after he had stabbed Lai that he intended Lai to die. Mr Mitchell says that the defendant did not call an ambulance or the police after attacking Lai. He left the flat to buy tools and cleaning agents to clean the flat and he did not do anything or ask for assistance in respect of the injury caused to Lai and, subsequently, the defendant also did not call the police to explain what had happened.
The defendant in his evidence says that he did not call an ambulance because he did not think about that. When asked by Mr Mitchell why he did not seek help when Lai was breathing heavily he says that he does not know how to answer, and he does not know why. He says that he was very frightened, and he did not think of calling the police or ambulance. He thought he had done something wrong. He also did not call the police later in the afternoon to explain what had happened because he did not think about doing so.
Mr Mitchell says that the actions of the defendant in this regard were inconsistent with someone who did not intend to kill Lai at the time he stabbed Lai or at least intended to cause him really serious bodily harm. Mr Mitchell says that the behaviour, as I understand his submission, that the behaviour of the defendant is only consistent with the intention to kill Lai or to cause really serious bodily harm, bodily injury to Lai.
Of course, in this connection you may have to ask yourself the reaction of a person when the person realised that he had done something very wrong as the defendant tells you. And, of course, you may have to take into consideration what the defendant did after attacking Lai. Whether he was in such a state of mind that he did not know what to do or whether the submission of Mr Mitchell is actually the intention of the defendant at the time when he attacked Lai. Of course, this is a question for you to decide.”
14. In the preceding passage, the judge put a countervailing view to the prosecution’s submission, emphasising that the applicant may have done what he did because he realised he had done something wrong. However, Mr Young contends that this does not go far enough. He suggests that the judge should have given further guidance as to how they could use the post-killing conduct coupled with an appropriate warning that there may be other reasons for his conduct, such as acting out of panic or fear of the consequences of what he had done.
15. The judge further directed the jury that the post-killing conduct according to the prosecution, showed that there was no loss of self-control regarding provocation:[14]
“Mr Mitchell suggests that the behaviour of the defendant after the killing of Lai shows no loss of self-control. He refers to the defendant buying tools and cleaning agents to clean the flat thoroughly to make sure there was no smell. He bought a red, white and blue bag and box in which he put the body of Lai. He even attempted to dismember the body of Lai so that he could put the body into the red-white-blue bag. He dumped the blood-stained items at different places to avoid the case being discovered easily. He painted the boxes which were used to contain the body of Lai to avoid blood being seen or leaked out.
Mr Mitchell says that all this showed that the defendant was cool and calm and composed and was able to make decisions. Of course, in this regard you may also consider that the defendant had made the decision to move the body from the Po Tin flat to Wah Fu flat and he had called GoGoVan for this purpose, although, it was deferred to the next day because he did not have the key to the Wah Fu flat on that day. You may also consider he did change into the clothes and shoes of his father before he went out to buy things and he also buy clothes and shoes to wear before he went home. Would this show that he was, as suggested by Mr Mitchell, a calm, cool and composed person who could make decisions?
Now, you must bear in mind that all this happened after the killing and Mr Polson, of course, has submitted to you in this regard. As I understand his submission, he says that provocation is provocation because it results in a sudden and temporary loss of self-control. So according to the meaning or definition it is a sudden and temporary loss of control. So Mr Polson is saying that after killing Lai there was time for the defendant to regain his self-control which he had suddenly and temporarily lost due to the conduct of Lai. Mr Polson is saying that all these cannot be evidence that the defendant was not under provocation at the time he stabbed Lai. So this is evidence you might like to consider, and you make sure your consideration is whether the defendant had suddenly and temporarily lost his control at the time he attacked Lai.
And you will remember the defendant after stabbing Lai did not call an ambulance or the police and Mr Mitchell, I think, suggests that if the defendant had stabbed Lai as a result of a sudden and temporary loss of self-control the defendant would most certainly have called an ambulance or police when he regained his self-control. The person was his father. I think the point of Mr Mitchell is that he, the defendant, did a lot of things after stabbing Lai, but not calling the police or ambulance, and he is suggesting that such behaviour is not consistent with someone who had lost control temporarily and then doing such things after regaining the self-control. Or to put it in clearer terms, I think, the point of Mr Mitchell is that if you suddenly lose your self-control and stab someone so that you apparently have killed him, then when you have recovered from that temporary loss of self-control you would naturally try to remedy the damage you have done and would call the police or ambulance or tell other people to seek assistance.
But, of course, you will have also to consider that when a person was under the impression that he had killed somebody, particularly his father, he might not know what to do even after he had regained his self-control. As the defendant says he was very frightened. He knew that he had done something very wrong. So after regaining the self-control would such a state of mind affect the judgment of the person? This is also something you have to consider.
Mr Polson also refers to the relationship between Lai and the defendant including the violence Lai exercised on the defendant and the defendant’s mother when he was young, and also the insulting remarks Lai made at that time and the insulting remarks were directed against the defendant, his wife and his son.
According to the evidence of the defendant, Lai said:
‘I know you are not that generous. You come here to make up story. You are not married, and you do not have a son. You are only the son of a married woman. You do not have a wife. And even if you have, she would be a prostitute. The son is not your son.’
And Lai also grabbed hold of the defendant’s hand, using a chair to hit the defendant repeatedly at the head and also assaulted the defendant at his chin and chest. So all those remarks and the assaults of Lai on the defendant, according to Mr Polson, triggered the defendant’s temporary loss of self-control.
And Mr Polson says that the actions of the defendant were, in fact, consistent with a temporary loss of self-control and the action of the defendant after the event which the prosecution seeks to rely on were consistent with the defendant recovering from his self-control at that time. Mr Polson tells you that the defendant is truthful in his version of what took place in the Po Tin flat on 4 December. So it is for you to decide whether the defendant was provoked in the legal sense at all.”
16. The judge in this passage addressed the post-killing conduct on the issue of sudden and temporary loss of self-control. Whilst he puts the prosecution’s case, the judge also fairly balanced his direction by emphasising the defence case.
17. The following day of the summing-up, the judge returned to the subject of the post-killing conduct to clarify the reliance of this evidence by the prosecution. A discussion took place with the judge concerning his previous directions and whether they needed clarification. The following exchange took place:[15]
“MR MITCHELL: My Lord, two matters this morning. One, in respect of your summing-up to the jury concerning provocation. I understand that there is a supplemental handout.
COURT: Yes.
MR MITCHELL: It’s not concerning that, my Lord.
COURT: Yes.
MR MITCHELL: It’s concerning the first question or the first question that you must ask under paragraph 3(1) and it’s concerning the sudden and temporary loss of self-control.
COURT: Sorry?
MR MITCHELL: It concerns the sudden and temporary loss of self-control.
COURT: Yes.
MR MITCHELL: Now, my Lord, you told the jury yesterday that it was my approach to that, that the prosecution was relying upon the post-conduct...
COURT: Yes.
MR MITCHELL: ...post-killing conduct, to negate, effectively negate the sudden and temporary loss of self-control.
COURT: Yes.
MR MITCHELL: My Lord, that is not exactly how I approached the matter.
COURT: Yes.
MR MITCHELL: The post-killing conduct does have relevance to the issue of provocation in the sense that it reflects a person of a calm nature and...
COURT: So you are suggesting that he was such a person, not trying to reflect his state of mind before the killing. Are you saying this?
MR MITCHELL: Yes, there’s that’s one aspect. Secondly, that the provocation, if somebody was provoked into killing, they would have contacted the police, etc, not go through the lengthy process of disposing the body. But the very issue in respect of the sudden and temporary loss of self-control I dealt with in this manner, my Lord, and it’s in my note and I recall reading this out almost verbatim and I shall read it out again.
It says:
‘In the present case, whilst the defendant claims the stabbing occurred within...(reads) knife was a lethal weapon and he sought for his knife inside the bag.’
And I went on to say, ‘A conscious thinking act which led to the stabbing’ and I also added there the fact that the defendant claimed that he had or he told the jury that he had fended off the stool -- fended the stool off, which again I suggest it was a conscious act and does not represent a sudden and temporary loss of self-control.
COURT: Yes.
MR MITCHELL: That’s how I dealt with that issue...
COURT: I see, all right, yes.
MR MITCHELL: ... as opposed to the post-conduct -- post-killing conduct, my Lord.
COURT: All right.
MR MITCHELL: Because...
COURT: So you are saying that you are not relying the post-conduct as a matter for the jury to consider the state of mind of the defendant at the time when he did the killing.
MR MITCHELL: What I’m saying is that that -- it does not go to the point about the sudden and temporary loss of self-control.
COURT: Yes, all right.
MR MITCHELL: Be...
COURT: Yes, but you remember, in fact, I have directed jury on this aspect already. I’ve told the jury when he thought about the backpack, the knife inside, take the knife out and things like that, and I said it’s a thought process...
MR MITCHELL: Yes.
COURT: ... and making decision, yes.
MR MITCHELL: My Lord, when you...
COURT: Yes.
MR MITCHELL: ... addressed the jury in respect of what I said in relation to temporary loss of...
COURT: Yes. So I will tell the jury that you rely on the post-killing conduct just to ask jury to draw inference from that that the defendant had not suddenly and temporarily lost self-control.
MR MITCHELL: Well, that it was not an -- it was -- the killing was not as a result of provocation. In relation to the sudden and temporary loss of control, as I say, I rely upon the actions of going into -- the remembering about the knife, remembering that the knife was a lethal weapon for the purpose, as he alleges, to commit suicide; the unzipping of the bag; the searching of the bag for the knife and the drawing out of the knife; plus, as I say, he was fending off the alleged attack with the stool.
COURT: So what do you want me to tell the jury about this aspect?
MR MITCHELL: Well, my Lord, as I said, I dealt with it in my closing to the jury ...
COURT: Yes.
MR MITCHELL: ...along those lines.
COURT: Yes, but, of course, you are -- so if I have made a mistake, I think I’d better correct that before the jury. So would I say something to the effect which I have just suggested, that you don’t rely on that conduct as to ask the jury to draw the inference that he was -- it did not lose his self-control temporarily and suddenly to commit the killing, or things like that?
MR MITCHELL: Now, my Lord, the position is that we rely upon that conduct to meet the defence of provocation...
COURT: As a whole.
MR MITCHELL: ... in broad terms, in broad terms. But, in relation to this specific issue, the reaching in -- the remembering about the knife, the remembering that the knife was a lethal weapon, the reaching in, getting it -- the unzipping of the bag and the getting in -- getting the knife out of the bag...
COURT: Yes.
MR MITCHELL: ... were all conscious acts.
COURT: All right. So you are saying that such conscious acts would indicate that the defendant was not under provocation.
MR MITCHELL: Was not -- did not suffer a sudden and temporary loss of self-control.
COURT: All right. So I would redirect jury on this -- along this line.
MR MITCHELL: Together with the fending off of the stool because he says he fend...
COURT: Well, I think I will not be repeating the evidence.
MR MITCHELL: Very well, my Lord.
COURT: I will just say the post-killing conduct.
MR MITCHELL: Very well.
COURT: Yes.
MR MITCHELL: Very well.
COURT: Yes, all right.”
18. Based on the discussion with counsel, the judge then directed the jury as follows:[16]
“Now, first thing is, I tell you yesterday that the prosecution relies on the post-killing conducts of the defendant as evidence for you to draw the inference that he was calm, composed, and vigilant. Now, I want to clarify this point. In fact, according to what Mr Mitchell tells you in the closing submission the stance of the prosecution should be like this -- you remember Mr Mitchell has repeated to you what the defendant did after killing Lai, all those conducts. I am not going to repeat them. The stance is that the prosecution is trying to tell you that the defendant, say, that includes the pre-killing conduct, that is, the part of remembering there is a knife in the backpack, took it out and then did the killing afterwards. The prosecution in fact is saying that all these were conscious acts. You remember I also tell you that it was a thought process. It was decision making. So the prosecution is saying that all these show that the defendant was conscious, was not suffering from any temporary or suddenly loss of self-control. That is the point of the prosecution, so I have to make this clarification.”
19. The respondent submits that an accused’s post-killing conduct can be used in the following ways as long as it is relevant to the issues at hand:
(1) to undermine his credibility generally;
(2) to establish that he was conscious of the fact that he had committed a culpable act of killing and hence capable of refuting the defence of non-culpable, accidental or less-culpable unintentional killing; and
(3) to refute provocation.
20. It is contended that the following post-killing conduct was probative of the applicant’s consciousness that he had not committed an act of accidental or unintentional killing without murderous intent but an act of killing with murderous intent:
(1) the applicant’s failure to assist the dying deceased or seek help suggested that he intended that the deceased should die;
(2) the applicant’s extensive efforts to destroy and dispose of the deceased’s body were disproportionate to a non-culpable or lessculpable act of killing without murderous intent. It matters not that the deceased’s body was recovered with the cause of death established;
(3) by cleaning the scene, changing or destroying his bloodstained clothing, and disposing of the knife, the applicant intended to cover up the killing as well as its course and extent because he knew that it was culpable rather than accidental or unintentional;
(4) the applicant profited from the deceased’s death by being able to use the deceased’s money to settle debts which suggested that he intended that the deceased should die; and
(5) the applicant conducted his own affairs after the killing as if nothing had happened, which suggested that the deceased’s death was nothing unexpected.
21. The post-killing conduct had been used in two ways in respect of the applicant’s credibility, namely, to refute his claims that (1) he was under extreme pressure and hence frightened and confused at the time of the incident; and (2) he respected the deceased around the time of the incident hence his excuse for visiting him before he was to commit suicide despite their less than congenial relationship.
22. Mr Young focused his exposition of the law by reviewing the English cases of R v Richens [17] , R v Taylor [18] , R v Woodward [19] and R v Tinker [20] and the Canadian case of R v White [21] . The English cases concern post-offence conduct where the defendant allegedly told lies. In Woodward , Kennedy LJ, with whom the other judges agreed, noted the observations of the Lord Chief Justice in Richens :
“33. …
‘This approach appears to us to overlook the vital and incontestable fact that a man who has killed by reason of loss of self-control, and therefore faces arrest, trial and possible lengthy imprisonment, may have almost as strong reasons for attempting to conceal his deed and lie about his involvement as a man who has killed deliberately.’
34. A little later the Lord Chief Justice at page 51 said this:
‘The point is that the jury should be alerted to the fact that, before they can treat lies as tending towards the proof of guilt of the offence charged, they must be sure that there is not some possible explanation for the lies which destroys their potentially probative effect.
Applying that concept to the present case, could the jury be sure that attempts to conceal the killing and lies were inconsistent with the appellant's case that he had killed as a result of provocation, and pointed to murder.’”
23. He endorsed the observations in Taylor ’s case:
“36. The point made by the Lord Chief Justice in Richens came before the court again in Taylor (1998) Crim.L.R 822 Richens :
‘It follows that the direction on the impact of the accused’s admitted lies requires in such circumstances to be amended, so as to focus the jury’s attention on whether the lies were told to avoid responsibility for the provoked killing, or for the deliberate murder. In most cases there will be no way of telling, so the lies will lose their possible probative significance.’”
24. He then addressed the issue of lies in the case under consideration:
“37. … So we find it difficult to understand how the lies which he subsequently told could be said to show that he intended to kill or to do really serious harm, rather than simply that he wished to distance himself from a killing from which he was responsible. Similarly in relation to the issue of provocation, as was pointed out both in Richens Taylor ex hypothesi
25. Mr Young submits that the judge should have given a direction in terms of Specimen Direction 112,[22]
“The lie can only support the prosecution case of murder if you are sure that the lie was told [to conceal the fact that he intended to kill the deceased rather than merely to conceal his connection with the death / to conceal the fact that this was an unprovoked killing, rather than merely to conceal his connection with the death.]”
26. Mr Young points out that this direction is based on the English cases, particularly Taylor in which Rose LJ held that the jury should have been directed “that lies could support the prosecution case of murder only if the jury were sure that such lies as they were considering were told to conceal the fact that he had murdered the deceased, rather than merely to conceal his connection with the death”.[23]
27. It is apparent that the post-killing conduct became a focal point during the applicant’s trial. The question arises whether the judge appropriately dealt with this issue.
28. I am persuaded that these grounds concerned with post-killing conduct are reasonably arguable. Mr Young has reformulated them into one ground which reads as follows:
“Having regard to the issues of intention for murder and loss of self-control under the partial defence of provocation and the evidence of the Applicant’s post-offence conduct (e.g. not calling an ambulance, cleaning up the scene, attempt to dismember the deceased’s body, disposal of items related to the killing, and the disposal of the deceased’s body), did the trial judge err in failing to direct the jury:
(a) that the evidence of the Applicant’s post-offence conduct was of no probative value on these issues，
and, if the evidence of the Applicant’s post-offence conduct had probative value,
(b) that any inference of guilt can only be drawn if the jury was sure the post-offence conduct was done to conceal the fact that this was an unprovoked and intentional killing, rather than merely to conceal his connection with the death, and
(c) of any other direction or warning needed in this case, similar to directions given for evidence of lies and flight.”
Ground 4
29. The judge erred in failing to direct the jury on inferential reasoning in relation to the applicant’s provocation defence[24] . See Nguyen Anh Nga v HKSAR [25] .
30. Mr Young complains that the judge’s direction on inferential reasoning was given in the context of the element of intention for the offence of murder and omitted being given in respect of provocation.
31. The judge gave the customary direction to the jury on inferential reasoning and instructed the jury in unmistakable terms that they could only draw an inference against the applicant if it was the only reasonable inference to be drawn from the proven facts.[26] He gave a clear example to the jury on inferential reasoning to assist them in considering the evidence on this basis.
32. The complaint under this ground is unsustainable.
Ground 5
33. The applicant’s conviction for murder is unsafe and unsatisfactory because:
(1) the fresh evidence demonstrates that prosecuting counsel at trial had no evidential foundation to suggest that the applicant lied about his father calling him back on 3 December 2018;
(2) the fresh evidence provides independent evidential support for the applicant’s testimony that it was his father who initiated the “yum cha” meeting when he called the applicant on 3 December 2018;
(3) prosecuting counsel’s allegation that the applicant lied on these material points (when cross-examining the applicant and in his closing speech) would have had a very damaging effect on the jury’s assessment of his credibility and a fortiori his evidence in relation to the provocation defence;
(4) the judge’s directions to the jury on lies would only have reinforced the jury’s impression that the applicant had lied and was untrustworthy; and
(5) had the fresh evidence been available at trial, the jury may reasonably have taken a materially different view of the applicant’s credibility, thereby now putting the safety of his conviction into doubt.
34. The issue in this ground is based on fresh evidence, that is, the deceased was the registered subscriber of telephone number 52028882, which belonged to a Sim card found together with another Sim card for telephone number 67757376 in the deceased’s mobile telephone seized at the applicant’s home.
35. Mr Young submits that the fresh evidence supported the applicant’s testimony that it was the deceased who called him on 3 December 2018 to initiate the “yum cha” meeting with the applicant on 4 December 2018 (the date of the killing). It proved that prosecuting counsel was wrong to suggest that the applicant had lied in saying that it was the deceased who initiated the meeting. There are immediately two issues that arise from this submission. First, the applicant knew his father had two Sim cards and used the telephone number 52028882. Secondly, the evidence records that telephonic contact took place between 52028882 and the applicant’s number but does not reveal the contents of what was discussed and by whom.
36. The call records which were disclosed to the defence showed that the applicant’s telephone number 63766462 received a call from telephone number 52028882 on 3 December 2018 at 5:45 pm for a duration of 34 seconds. However, the fresh evidence confirmed that the telephone number 52028882 was registered to the deceased. But as already pointed out, this would have been known to the applicant, so he cannot complain about an issue of non-disclosure by the prosecution. It is his complaint that prosecuting counsel alleged that he lied about a telephone call from the deceased in the afternoon of 3 December 2018 when this evidence supported his testimony. It would seem that prosecuting counsel was unaware that the telephone number 52028882 was registered to the deceased, and it did not feature in the admitted facts, purportedly setting out all the call records. Prosecuting counsel in challenging the applicant’s evidence on this issue, relied on the absence of a record of this call from the deceased in the admitted facts and the applicant’s answer in his video recorded interview that he had asked his father to meet for “yum cha”.
37. The applicant in cross-examination said his father had two card numbers and he was referred to the admitted facts, which did not disclose a call from his father as he claimed. At this point, defence counsel objected to the questioning, noting that the admitted facts did not record all the calls and the applicant had given an explanation that his father had used another number.[27] In re-examination, defence counsel raised the issue with the applicant, who explained that the deceased had two mobile telephone numbers.[28]
38. I am in a quandary about this ground of appeal. At first, it seemed that it was based on an issue of nondisclosure by the prosecution. However, the fresh evidence was known to the applicant. It would also appear that defence counsel was aware that the deceased had two telephone numbers but nothing was done about it. Mr Young is not alleging that defence counsel was flagrantly incompetent regarding this matter, and as this is not his ground, then it may limit the ambit of any complaint on this issue. It could very well have been the case that defence counsel took a tactical decision about it. It could also be the case that Mr Young is taking a tactical decision by not characterising this ground on the basis of flagrant incompetence of counsel. If he did, then more would be revealed about the applicant’s instructions to defence counsel on this issue and defence counsel’s handling of it at trial.
39. I will grant leave on this ground, but there are a number of hurdles that Mr Young will need to overcome before the Court of Appeal. There is also the question of whether the conditions can be satisfied for adducing fresh evidence on appeal.
Conclusion
40. It follows from what has been said that the applicant is granted leave to appeal his conviction on the consolidated first three grounds and the fifth ground. Leave is refused on the fourth ground.
(Kevin Zervos)
Justice of Appeal
Mr Raymond Cheng, SADPP and Mr Justin Ma, SPP (Ag) of Department of Justice, for the respondent
Mr Simon Young and Mr Simon So, instructed by Ng & Co, assigned by Director of Legal Aid, for the applicant
[1] Appeal Bundle (AB), 851D-852P, 867E-868O, 876T, 882N-883C, 52D-I.
[2] AB, 875K-P, 113T.
[3] AB, 876S-U.
[4] AB, 884HJ, 583 [118], 51R-S.
[5] AB, 890J-K, 245 [45]-[47], 294 [492]-295t [496], 735[60], 741[100], 771[382], 788F-H.
[6] AB, 889D-F, 52J-T.
[7] AB, 886H-J, 890B-R.
[8] AB, 808F-H.
[9] HKSAR v Chung Ho Yin , unrep., CACC 75/2020, 17 September 2021, at [38]-[40].
[10] AB, 75O-76M, 82C-T, 88O-91C, 93F-94B, 158D-159E.
[11] AB, 75O-76M, 82C-T, 88O-91C, 93F-94B, 158D-159E.
[12] AB, 75O-76M, 82C-T, 88O-91C, 93F-94B, 158D-159E.
[13] AB, 75N-76M.
[14] AB, 88O-91C.
[15] AB, 910C-913K.
[16] AB, 93F-O.
[17] R v Richens (1994) 98 Cr App R 43, 50-52 (CA).
[18] R v Taylor [1998] Crim LR 822 (CA).
[19] R v Woodward [2001] EWCA Crim 2051.
[20] R v Tinker [2002] EWCA Crim 2958 (CA).
[21] R v White [1998] 2 SCR 72, 86-92. This case concerned post-offence conduct involving the defendant fleeing from the jurisdiction, running from the police and attempting to dispose of the murder weapon. This case is cited by the High Court of Australia in R v Baden-Clay (2016) 256 A Crim R 132. See also Zandipour v R [2017] VSCA 179.
[22] Specimen Direction 112-4.
[23] Taylor , 6.
[24] AB, 59M-61F, 75F-J, 841-940.
[25] Nguyen Anh Nga v HKSAR (2017) 20 HKCFAR 149, at [56]-[57].
[26] AB, 60C-F.
[27] AB, 822D-823F.
[28] AB, 859C-J.