HKSAR v. Chan Tam Fu

CACC 363/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 363 OF 2014

(ON APPEAL FROM HCCC 546 OF 2013)

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the court):

Introduction

1.The applicant was charged with murder, contrary to common law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212.  The Particulars of Offence alleged that on 10 April 2013 the applicant murdered Lee Lai Wa. 

2.The applicant’s trial in the High Court commenced on 6 October 2014 before Mrs Justice Barnes J and a jury.  On 14 October 2014, the applicant was convicted by the verdict of the jury and in accordance with law sentenced to life imprisonment.

3.The applicant applied for leave to appeal against conviction, and at the hearing of his application we reserved out judgment and said we would hand it down at a later date.  This we now do. 

The trial

4.The applicant and the victim were husband and wife.  The applicant stabbed his wife to death at her place of work, the Pier 88 restaurant in Heng Fa Chuen, Chai Wan.  The murder occurred when, sometime before 7 pm on 10 April 2013, the applicant arrived at the restaurant and stabbed his wife with a knife which he had brought with him from his home.  His wife suffered fatal injuries and was certified dead at 7:25 pm at the Pamela Youde Nethersole Hospital.

5.The prosecution case was that on the day of the murder the applicant left home with a knife intending to use it to kill his wife.  Two issues were raised in this trial.  The first was the intention of the applicant when he went to the restaurant and, if the jury were not satisfied that he went there intending to kill his wife, then the second issue arose of whether the applicant could avail himself of the defence of provocation on which he relied to reduce criminal liability for his actions to manslaughter. 

6.In fact, the applicant pleaded guilty to manslaughter on the basis of provocation but this plea was rejected by the prosecution.  The existence of this plea and the reasons for it were both known to the jury.

The prosecution case

7.The prosecution case was that the applicant went to the restaurant with the intention of killing his wife.

8.The prosecution called nine witnesses and produced two sets of admitted facts.  Through the sets of admitted facts it proved the voluntariness of three video records of interview of the applicant, the applicant’s response to caution after his arrest, the post mortem report and the police photographs.

9.The prosecution relied on the applicant’s response to caution when he was arrested at the scene of the murder at Pier 88 restaurant, which was:

“My wife has an affair with another man, therefore I stabbed her with a knife.”

10.Furthermore, in two subsequent video records of interview the applicant told the police that he brought along the knife to teach his wife a lesson, to scare her without any intention of harming her.  However, because his wife scolded him and hit him with a tray twice, he pulled out the knife and stabbed her.

11.The background of the victim and the applicant is that they were married in the Mainland in 1995.  The wife had been previously married and she had a daughter from that earlier union.  When she married the applicant the daughter was two or three years old and accompanied her mother in her life with the applicant. Later, the marriage of the applicant and the wife produced a son, Chen Jianfeng who was born in 1996, and he testified for the applicant as the second defence witness at the trial. 

12.The four of them lived in the Mainland until 2001 when the wife successfully applied for a one-way permit to live in Hong Kong.  The applicant and the two children continued to live in China until reunited with the wife in 2006. 

13.When the wife came to Hong Kong in 2001 she commenced working, but she would regularly return to the Mainland to visit the applicant and the children.  From the time she arrived in Hong Kong the wife worked in the Pier 88 restaurant and at the time of her death was working in the food delivery section of this restaurant.  When the applicant came to Hong Kong he worked on a construction site.  The evidence of the applicant and his son was that it was the applicant who performed the duties of caring for the children and looking after the housework in the flat.  The wife was the person within the family who was responsible for all of the finances of the family.  Any money which the applicant earned he said he would give to his wife and she would return part of it to him as an allowance. 

14.On 2 March an incident took place in the family home in which the applicant slapped his wife on the face.  This incident caused the wife to leave home on 12 March 2013 on which day she went to the Family Service Centre in Kennedy Town in order to seek help from a social worker there.  She was taken to a shelter where she stayed from then on.  On 16 March 2013 Miss Yip, a social worker at the Family Service Centre, spoke to the wife who informed her that she had been slapped by her husband on 2 March and she later received a phone call from him threatening her and it was because of the threatening phone call that she left home and sought to stay in the shelter.  Miss Yip testified in the prosecution case.

15.Both the applicant and his wife were interviewed separately and together by Miss Yip as part of her counselling service to them.  Miss Yip said that the applicant admitted having slapped his wife, but was remorseful for it and had expressed his wish for his wife to return home as soon as possible.  However, Miss Yip said the wife was hesitant about going home.  She told Miss Yip that she was not convinced that the applicant would stop swearing at her, stop drinking and would control his ill temper.

16.The wife also made a report to the police and the applicant was arrested on 12 March.  In an interview with the police the applicant admitted that he had hit his wife, but he denied that he had ever threatened her.  He was put on police bail until 10 April 2013. 

17.With the consent of the wife, the police decided not to prosecute the defendant for his assault on her.  However, it was proposed that the applicant would be bound over for the incident.  The applicant had to return to the police station on 10 April at which time he was told he would not be prosecuted, but that he would have to go before the magistrate to be bound over for the slapping incident.

18.The police officer who dealt with the applicant at the police station on 10 April gave evidence and said that from his observation of the applicant, the applicant appeared calm and emotionally stable.  He said the applicant did not exhibit any unusual behaviour and did not become angry at any stage when this police officer was dealing with him. 

19.10 April was also important for another reason.  Miss Yip had asked the wife to let her know by this date what her decision was in respect of whether or not she would seek a divorce.  The applicant had also asked her to let him know by this date what she intended doing.

20.On 8 April 2013 the applicant had a meeting with his brother‑in-law, Mr Huang Bingji.  This person was called as a prosecution witness.  At this meeting Mr Huang encouraged the applicant not to be ill tempered and did recall the applicant mentioning the existence of a birthday card that he had found in his wife’s trousers’ pocket, addressed to her and which he believed had been given to her by another man. 

21.Before 10 April the applicant and his son had travelled to China to celebrate Ching Ming.  They were away for a couple of days and when they returned they discovered that the wife had removed her personal belongings and valuables.  There was still some clothing belonging to her in the flat, but all of her money was gone, as were her passport and all of her gold ornaments. 

22.The applicant said in his video records of interview that after he got home he called his wife to enquire of her whether she would be returning home.  She told him that she would not because she enjoyed the peace and quiet of living alone and she said she wanted a divorce.  When the applicant then asked her about the money he said she told him to drop dead and hung up the telephone. 

23.The applicant also asked his son to call his mother, and she told the son the same thing.  Then, the applicant telephoned his brother-in-law, Mr Huang, and informed him that this wife was wanting a divorce.  However, his brother-in-law’s reaction was to the effect of “Well he couldn’t help it if Lee Lai Wa changed her mind.” 

24.Mr Huang recalled this phone conversation as taking place around 4 pm and said the applicant told him that Lee Lai Wa would not pursue the matter and that the applicant was fine.  According to Mr Huang the applicant said nothing to him about his wife not coming home and of Mr Huang’s failure to persuade her to return to the family home.  To this extent, Mr Huang’s evidence was inconsistent with the version of this conversation that the applicant gave in his video record of interview.

25.The applicant also said in his video interview that he called his mother-in-law.  He did so in order to scold her for teaching her daughter to divorce him.  The mother-in-law scolded him back and in the course of this conversation the applicant informed the mother-in-law that his wife had had an affair.  The mother-in-law then said words to the effect that it was because his wife has great quality that she was able to have an affair and the applicant said that he became very angry and emotional when he heard this.  He described his head as bursting. 

26.He said he then took a knife from the fruit basket with the sheath on it and put it inside the inner pocket of his jacket.  He said his intention was to teach his wife a lesson, to scare her.  But, he did not say how he was going to scare her with the knife.  Then, he described how he took the tram and then the MTR and went to Heng Fa Chuen.

27.When he arrived at his wife’s restaurant the applicant said he saw her carrying food from the kitchen to serve customers, so he waited until she had served the food and then he went up to talk to her.  By that stage the wife’s tray was empty.  His wife was not pleased to see him and said to him “So I’ve already told you divorce, what are you coming to see me for?”

28.In order for the conversation not to be overheard by others the applicant pushed his wife into a corridor and it was there they had an argument about the divorce.  The applicant said he told his wife “Well, at least you should leave the money for me and for my son.” 

29.The applicant said his wife then scolded him and struck him with the tray.  He warded off the wife’s first blow with the tray with his left forearm and then his wife struck him again.  He said it was during this second attack by her with the tray that he reached his hand into his pocket, pulled out the knife and stabbed his wife.  He said after he had stabbed his wife twice she shouted for help and he did not know how many times he stabbed her or where on her body he stabbed her. 

30.There were persons in the restaurant who heard the argument, but no one saw the actions of the applicant in stabbing his wife.  By the time they came to the area of the corridor where the incident happened they only saw the victim lying on the ground, hands across her chest, with the applicant standing over her holding a knife.[1] One witness said she heard the applicant saying “Stab you to death, stab you to death.” and saw blood on the floor.  Another witness said she heard the applicant saying “You had an affair.  You courted guys, you want to die.”  She said the applicant kept on repeating these words and pointing his finger at his wife’s body saying that his wife had an affair, courted guys and he, the applicant wanted to kill her. 

31.The police arrived at 7:05 pm and the applicant was arrested.  A police officer cautioned him for the offence of wounding and recalled the applicant’s reply which was “My wife had an affair with a man therefore I stabbed her with a knife.”  This statement by the applicant was the subject of an admitted fact. 

32.The brother-in-law, Mr Huang, in his evidence also mentioned that the applicant had made a second call to him on 10 April at around 7 pm.  Clearly, this must have been just before the police arrived.  He told his brother-in-law “I killed your sister-in-law, come to collect her dead body.” 

33.The last prosecution witness was the forensic pathologist who testified to there being eight wounds to the body several of which were each potentially fatal.  There were also defensive injuries on the arm and on the hand. 

The defence case

34.In his oral testimony the applicant said that he never intended to harm his wife.  In fact, quite the contrary, he took the knife to kill himself in front of his wife.  He said, however, that once he was with her an argument ensued and, his wife started attacking him with a serving tray from the restaurant.  He then took out the knife which his wife tried to grab and, in the course of so doing, she injured herself.  His wife kept hitting the applicant with the tray, and he then lost control and stabbed her.

35.By this evidence the applicant denied a pre-existing intention to kill his wife and at the same time raised a defence of provocation.

36.In his evidence the applicant said that in 2011 the relationship between he and his wife started to deteriorate.  He said there was an incident in May 2011 when his wife complained to him that his penis was too small and not exciting enough for her.  He said he replied:

“Well, nothing I can do about it. Well, if you want excitement, you go outside and get it yourself.”

37.He said after this incident his wife went out and bought pills which were intended to promote sexual performance. 

38.Then he revealed another incident in August or September of the same year when he discovered in the trousers’ pocket of his wife a birthday card addressed to her which referred to an occasion where the sender of the card and the wife had spent an intimate evening together.  Thereafter, the applicant believed that his wife was having an affair with a man. 

39.However, the applicant said that he never said anything to his wife about his suspicions as he was scared of her.  Consequently, he did not confront his wife with the birthday card or seek any explanation from her for it.  After the birthday card incident the applicant noticed that his wife would sometimes not return home after work.  When this happened she switched off her mobile telephone so that the applicant could not contact her.  On returning home she would invariably say that she had gone out to have food with a colleague. 

40.The applicant also claimed that since 2011 he and his wife had ceased having sexual relations.  He said his wife would not sleep in his bed with him and would either sleep in the children’s bedroom or in the sitting room.  The son’s evidence also supported that this did happen at times.  The son described her as unhappy and also uncomfortable with air-conditioning so that whenever air-conditioning was being used she would go and sleep in the sitting room. 

41.The next incident occurred in the 2013 Lunar New Year.  The applicant said that his wife had to work on the first day of Lunar New Year, but she did not come home from work that day and only returned on the second day of Lunar New Year.  When she came home she immediately went to have a shower and so the applicant took the opportunity to search her bag.  In her bag he found a notebook and tucked inside the notebook he found two condoms.  That made him very angry because he said he never used condoms in his sexual relations with his wife.  Again he did not confront his wife with his discovery and so he never obtained any explanation from her for the presence of the condoms. 

42.Another incident which upset him was his stepdaughter’s marriage in 2012.  He said no one discussed this with him and he only learnt of it a week before the actual banquet.  When he went to the banquet he saw that it was not the Chan family that was hosting it but rather the Lee family.  In other words, his family was not the host, but rather it was his wife’s family.  He was very upset about this and confronted his wife about it.  Later on, he found out that his wife had actually asked the younger sister to go back to China and host another wedding banquet to celebrate the daughter’s wedding.  He felt that the way he had been treated in respect of his step-daughter’s wedding was disrespectful towards him and that they did not treat him as a husband or father in the family.  He had found out about the second banquet in China when he had gone to China to attend a colleague’s wedding. 

43.When he returned to Hong Kong on 2 March 2013 he said he confronted his wife and slapped her.  This slapping incident arose, he said, because as he was going to the toilet he kicked the sofa on which his wife was sitting and his palm touched the front of his wife pressing onto her chest.  His wife scolded him, telling him to go and drop dead and so he slapped her on the left side of the face.  That was the first time, he said, that he had ever assaulted his wife.  On 12 March 2013 his wife left the family home, accusing him of threatening her, and never returned. 

44.In his testimony in court he said that on 10 April he returned home from the police station and called his wife.  He asked her to return home but she refused, saying she preferred the peace and quiet of living alone and that she wanted a divorce.  This surprised him and he said that he found it difficult to breathe.  After his wife hung up, she turned off her phone so that he could not contact her further. 

45.The applicant said he then called his brother-in-law and asked him to speak to his wife and to pass on to her his apology to her for his wrong-doing in relation to her. 

46.He then testified as to his phone call with his mother-in-law and confirmed that in that conversation he accused the mother-in-law of coaching and teaching his wife to divorce him.  There was no mention by him in his testimony of telling his mother-in-law of his wife’s affair or of his mother-in-law’s rejoinder to that knowledge.  But he did say that the mother-in-law scolded him and criticized him for being old and having no money and told him to jump from a height and die.  She then hung up the phone. 

47.He said that after being scolded by the mother-in-law he was confused.  He sat on a chair and his mind was blank.  Then he saw the knife and was reminded of his mother-in-law’s exhortation to him to kill himself.  He thought he could use the knife for that purpose.  He put the knife in his pocket and went to look for his wife because he wanted to kill himself in front of her.  That was the reason he said that he took the knife. 

48.In his testimony he admitted that on arrival at the restaurant he pushed his wife into the corridor where he asked about the money she had taken away, saying that this money was for the children.  He said his wife then said she wanted a divorce and he said he agreed to it.  He said:

“A divorce is okay, but you should leave the money for the children, to be used as maintenance for the children.”

His wife’s reply was simply:

“No money.”

49.The applicant said that it was then that they had an argument. The applicant said that he accused his wife, saying this:

“Well, you did all these disgraceful things. I never say anything. You had an affair with someone, I still remain silent.”

50.He said that his wife then scolded him fiercely, telling him to die, to go drop dead.  The applicant said at that time he was muddled, he was angry and he was also confused after being scolded by his mother-in-law.  So, he then used foul language back to his wife and she asked him not to speak in a loud voice because other colleagues would hear what they were saying.  At the same time she also used the tray to hit him, telling him to drop dead.  He said that she hit him three to four times and every time he blocked the tray with his arm.  After being hit three or four times he said he pulled out the knife and said:

“Let me die in front of you. In the future you raise the children.”

51.He said his wife then hit him again with the tray and also tried to grab or snatch the knife from his hand.  He said it was at this stage that somehow the knife stabbed his wife’s hand.  He said that the injury caused to his wife’s left forearm was as a result of her trying to grab the knife that he held in his hand when he was trying to kill himself. 

52.He said that he then lost control of his senses and he knocked his wife down.  He said he did not know how many times he stabbed her.  After she dropped to the ground, he became very frightened and dropped the knife.  He then called his son and brother-in-law and asked them to come and collect the corpse.  He described himself this time as being frightened, his hand was shaking and he was muttering to himself “Having an affair, having an affair.”

53.He said he was also saying “If you did not hit, I would not hit you.  I did not hit you with an intention.”  He said he was saying this all the time until the police came.  He said he never had any intention to kill his wife and never intended to hit her.  He said he never intended to harm her as he agreed to the divorce.  He wanted to kill himself in front of her.

54.He was cross-examined on the differences between his testimony in court and his answers to the police.  In court he said he went to his wife in order to kill himself in front of her and he took the knife for this purpose. In his records of interview he said he took the knife to scare his wife.  In explanation the applicant said that he was stopped by a policeman from mentioning his intention to commit suicide.[2]  When asked about specific areas of difference he said at the time of the interview he was confused, he was nervous, he was dizzy and his eyes were blurred.

The grounds of appeal

55.Mr Boyton advanced two grounds of appeal.  The first is the trial judge failed to direct the jury in clear terms that if the applicant’s version “were or may be true” that was sufficient to raise a reasonable doubt.  In support of this ground it is said that although directions on the burden and standard of proof were given both generally and in relation to specific areas such a provocation, this “is or may be true” direction was not given in respect of the applicant’s oral testimony and out-of-court statements. Further, it is said, the presence of three other directions, arguably in conflict with the direction which should have been given, aggravated the failure to give the required direction.

56.The first of these three other directions is a direction to the jury in respect of their reliance on the applicant’s out of court statements.  This direction was as follows:

“If you are sure that what he has said during those interviews are true, then you can rely on them. If you think it is not true, then do not rely on the untrue part of what he has said.”

57.This direction, it is said, does not contain any guidance to the jury in respect of the applicant’s out of court statements that the jury neither positively believes to be true nor positively believes to be untrue but concludes may be true.

58.The second direction, which it is said aggravates the failure to give an “is or may be true” direction, is the judge’s discussion of the voluntariness of the applicant’s records of interview.  This discussion was prompted by answers the applicant gave in the course of being cross‑examined on the inconsistency between what he said in his records of interview and what he said in court about his intention when he left home for his wife’s workplace.  In cross-examination, the applicant said that he had been prevented by the interviewing police officer from saying all that he wanted to say.  In response to this evidence from the applicant the judge directed the jury that in considering it they should take into account that the applicant had admitted as a fact that the records of interview were voluntary and that this admission was conclusive proof of this fact.   

59.The third direction is the judge’s direction on the claim by the applicant that he only stabbed his wife after she had hit him with the tray.  In respect of this claim, which was a key part of the provocation defence, the judge directed the jury:

“If is for you to decide whether you accept that was indeed what had happened.”

This direction, it is submitted, suggests that a burden is on the applicant to establish provocation rather than on the prosecution to rebut it. 

60.The second ground of appeal, which is said to be in the alternative to the first ground, is that the trial judge failed to direct the jury in clear terms 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.”[3] In support of this ground of appeal it is said that the jury was effectively invited to compare the prosecution evidence with that of the applicant and decide who is telling the truth and to only acquit the applicant if they found his evidence to be positively true.  

Discussion

61.In a nutshell the applicant complains that the jury have not been properly directed in how they should deal with defence evidence when determining whether the prosecution had proven beyond reasonable doubt that the applicant murdered his wife, including, of course, in rebutting the defence of provocation. The law is clear that in directing the jury on the burden and standard of proof the judge must ensure the jury understands that the burden remains on the prosecution at all times to prove that the defendant is guilty and that they do that by making the jury sure of the defendant’s guilt (or satisfied of it beyond reasonable doubt).  When evidence from a defendant, either from in-court testimony or an out‑of-court statement produced by the prosecution, is before the jury it may become necessary for the judge to give additional directions to the jury to ensure that the jury understands that: 

(i) they do not see their task as simply choosing between believing what the prosecution witnesses have said as opposed to the defendant;

(ii) even if they positively disbelieve the defendant, they must not convict him unless they are sure of his guilt on the prosecution evidence; and   

(iii) in considering whether the prosecution has made them sure of the defendant’s guilt they must take into account anything in the defence case which may be true, for any such matter which points to the defendant’s innocence and which the jury finds may be true, would raise a reasonable doubt in respect of the guilt of the defendant.[4]

62.Whether any or all of these aspects of the burden and standard of proof need to be the subject of a separate direction by the judge will depend upon the facts of each case. 

63.In the present case it was unnecessary to give a direction to prevent the jury engaging in the impermissible line of reasoning described in paragraph 61(i) above.  The concern of the courts that has given rise to the need for a direction to prevent this line of reasoning is illustrated by what happened in HKSAR v Tsang Tak Wah Andy [2011] 4 HKLRD 678 and Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600. 

64.In HKSAR v Tsang Tak Wah Andy the following direction was given:

“D has his version and [v] hers … you should consider where the truth lies …”

At paragraph 16 of the judgment, this was criticised as it was said that it “only pointed out to the jury the differences between the prosecution case and the defence case, and enjoined them to evaluate which side was more reasonable.”

65.In Lee Fuk Hing v HKSAR the Court of Final Appeal deprecated directions of:

“You yourselves have to consider whose case is credible…. Therefore, it depends on the views that you will take on the witnesses of both parties …” and “… Whether the defendant’s version is credible, or the version(s) of the police constable(s) is/are credible?  It is a decision that you yourselves have to make.”

At page 624E-F Mortimer NPJ, in giving the judgment of the court said:

“[The judge] invited the jury to determine between the prosecution version and the defence version of the evidence on credibility without giving the usual and proper direction for the approach if the jury concluded that the defence version may have been true. This risked an erroneous application of the burden of proof.”

66.The present case was not a case where there was eyewitness evidence from the prosecution in conflict with the evidence of the applicant and where the jury were being invited to evaluate the two and prefer the former over the latter.  Here, the factual matrix is of a murder where there were no eye‑witnesses.  People heard certain words spoken and saw the scene after the event.  No one actually heard the interchange of words between the applicant and the deceased or what took place between them. For this, the only source of evidence was the applicant himself and so in proving a pre-existing murderous intent and rebutting the defence of provocation the prosecution sought to show that the applicant’s account of what happened, containing his justification for his actions, was not believable.  In deciding these issues the jury were not called upon to choose between prosecution and defence witnesses and so no special direction discouraging that impermissible line of reasoning was necessary.

67.The direction in paragraph 61(ii) above was given and the only issue is whether the direction in paragraph 61(iii) above was given and, if not, what are the consequences of such a direction not having been given.

68.This last stated principle in paragraph 61(iii) is derived from the statement of Brennan J in Liberato v R (1985) 159 CLR 507 at page 515 where he said:

“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.”

69.This has given rise to the need to give an “is or may be true” direction when dealing with defence evidence.  This was explained by Ma JA, as he then was, in HKSAR v Wong Wai Man & ors (No 2) [2003] 4 HKC 517 in giving the judgment of the court.  He said at page 524A-E:

“First, a jury should not be told in such absolute terms that if it was not sure (that is, not satisfied) that what the defence witnesses were saying was actually true, then it had to disregard such evidence for all purposes. The proper (and indeed, usual) direction is that members of the jury are required to take into account not only those parts of the defence evidence that they are satisfied are true, but also to take into consideration those parts of the defence evidence that may be true …

… Obviously, a fact raised by the defence, if actually believed by the jury, will be duly taken into account.  However, even where a fact raised by the defence is not established to the satisfaction of the jury, yet if it is of the view that it may be true or has a ring of truth about it, the jury should take it into account when deciding whether or not the prosecution has discharged the requisite burden of proof.”

70.This law is reflected in the third paragraph of the four paragraph Specimen Directions issued by the Hong Kong Judicial Institute, which is as follows:

“If is for you to decide whether you believe the evidence of the defendant [and / of his witnesses] or whether it may be true. I have previously told you that if the account given by the defendant / put forward by the defence is or may be true, then the defendant must be acquitted.” [Italics added][5]

71.In Sze Kwan Lung & Others v HKSAR (2004) 7 HKCFAR 475 Bokhary PJ, with whose judgment the other members of the court agreed, after quoting the passage from the judgment of Brennan J, in Liberato said at page 487A-B:

“Whether by one form of words or another and whether in one way or another, that message must be conveyed to the jury.”

72.Even if the Liberato direction is not given, but should have been, the omission will not automatically result in the quashing of the conviction.  The issue that arises then is the consequence of this omission, in the context of the particular case.  By reference to that context, it is necessary to determine whether, by reason of the omission, the conviction is rendered unsafe.  This involves having regard to the summing up as a whole, in order to determine whether the Liberato message has been conveyed by another form of words or whether the failure to give the correct direction may have given rise to confusion in the minds of the jury on the issue[6] and created a real risk that the jury would have made any finding against the defendant contrary to his evidence if it had given rise to a reasonable doubt.[7] 

73.In the first ground of appeal it is said that there is a misdirection of the jury in respect of the applicant’s out-of-court statements and a non-direction in respect of his testimony at trial.

74.The alleged misdirection of the judge in respect of the applicant’s out‑of-court statements is as follows:

“If you are sure that what he has said during those interviews are true, then you can rely on them. If you think it is not true, then do not rely on the untrue part of what he has said.”

75.The applicant submits that this direction is appropriate for an out-of-court statement which is only inculpatory in nature.  For a “mixed statement” which contains both inculpatory and exculpatory material, the proper direction is for the jury to consider not just whether the evidence of the applicant is true but also whether it may be true.

76.The respondent concedes that the direction is a misdirection but submits that it is not material or, if it is, that this is a suitable case for the application of the proviso.

77.The “is or may be true” direction, it is said, should also have been given, but was not, in respect of the applicant’s oral testimony.  Hence, there is a non-direction of this same passage in the Specimen Directions in respect of the applicant’s in-court testimony.

78.However, when a defendant supplements a record of interview with in‑court evidence essentially consistent with what is in his record of interview then there is no need for a separate direction in respect of the contents of the out-of-court statement.  As the court said in HKSAR v Huang Xiang Rong [2010] 1 HKLRD 750 there is no need for a separate direction for the explanation in the record of interview has been overtaken by the defendant’s testimony.  It is only where the defendant gives inconsistent accounts in his out‑of-court interview and in‑court testimony that the former is not subsumed into the latter and so a direction may be necessary.

79.Consequently, two issues need to be addressed.  The first is whether a separate direction was needed for the applicant’s out-of-court statement and the second issue is whether, if a separate direction was needed the judge gave an incorrect direction.

80.Whether a separate direction is needed depends on whether the two accounts of the applicant were essentially consistent with each other.  Although on many issues the applicant’s evidence was consistent with what he said in his records of interview, on one crucial issue it differed and on this issue the applicant asked the jury to accept his in-court evidence in substitution for what he had said in his video interviews.  The difference between the two was in the intent that he said he harboured when going to his wife’s workplace.  In his video interviews he said it was to scare his wife, that is, his intent was focused on doing something to her.  In his in-court evidence he said his intent was to harm himself, that is, his intent was focused on himself. 

81.In so far as this statement as to his intent was a denial of an intent to kill it could be said to be exculpatory, but in so far as it was an admission that he took the knife for the purpose of using it against his wife it was very much inculpatory.  If regarded as an admission against interest, as in truth it was, then a separate direction was called for.  Being an admission against interest the separate direction required in respect of it was that the jury should not act upon it unless they found it to be true.  This was the direction that was in fact given.  The direction to only act upon it if the jury found it was true is not wrong.  But the rest of the contents of the records of interview were exculpatory in nature, laying the foundation for the defence of provocation.  This being so, the records of interview fell to be regarded as mixed statements and so required an “is or may be true” direction.

82.But the exculpatory parts of the interview were essentially consistent with the applicant’s in-court testimony and so the question is whether by not giving such a direction the risk was created that the jury might not take into account those exculpatory parts when determining whether the prosecution had proven its case beyond reasonable doubt.  So, the real issue becomes whether by the judge’s other directions to the jury the judge has sufficiently conveyed the Liberato message, negating any prejudice that might have flowed from her failure to correctly direct the jury in respect of the exculpatory parts of the applicant’s interviews.  But, before we address that issue, we should briefly mention the two other directions which it is said aggravate the omission to give an “is or may be true” direction.

83.In respect of the other directions that may have impacted upon the view the jury took of the contents of the video interviews we are not persuaded that they can be legitimately criticized.  The judge’s reminder to the jury that it was an admitted fact that the video interviews were voluntary was perfectly proper.  The applicant was asserting in his oral evidence that he had been prevented by the police from saying all that he wished to say at the time of the interview.  Relevant to an assessment of the credibility of that assertion was the fact that he had admitted that the video interviews were voluntary.

84.The final direction to the jury of which complaint is made is that they had to consider whether the applicant’s claim that the deceased hit him with a tray was true.  This direction has to be put in context.  It was in fact part of the following direction on self-defence which arose in the course of directing the jury on the “unlawful killing” element of murder:

“Second ingredient, that the killing was unlawful. ‘Unlawful’ means the killing had no legal justification. Acting in self defence, resulting in the death of another is not unlawful, it is justified if you are acting in self defence. Similarly, the death of a patient who underwent surgery for proper reason is not unlawful killing.

The defendant claimed that it was the deceased, Lee Lai‑wa, who first used the tray to strike him after scolding him. The defendant then stabbed Lee Lai-wa after he was struck by the tray. It is for you to decide whether you accept that was indeed what had happened.

But I should tell you that if you accept what he said was happened, that is to say it was Lee Lai‑wa who used the tray to attack the defendant first and then the defendant used the knife to stab the deceased, what the defendant had done does not amount to self defence in law.”  [Italics added]

85.The italicised sentence is the direction of which complaint is made.  Here, the judge is saying, in effect, no more than “even if you accept the account of the defendant, the defence of self-defence does not arise.”  Her comments are specific to this defence and given the attention the judge gave in directing on the defence of provocation there is no basis for assuming that the jury would take this one comment out of context and misapply it to the defence of provocation contrary to the specific directions given to them in relation to that defence.

86.In respect of the directions on the applicant’s oral evidence, the starting point to a consideration of the applicant’s submissions is to examine what were the issues in the case and how they impacted upon the burden and standard of proof.  Next, it is necessary to consider the judge’s directions as a whole on the burden and standard of proof and determine whether, within the context of the factual matrix and the issues to be decided, those directions were correct and sufficient and finally if they were not, whether the error or insufficiency rendered the conviction unsafe. 

87.This case was, in terms of the evidence, a one issue case and that issue was the credibility of the applicant’s evidence. In terms of the law it was also a one issue case as the applicant, though denying an intention to kill prior to his confrontation with the deceased, admitted all the elements of murder even going so far as placing before the jury his unaccepted plea of guilty to manslaughter on the basis of provocation.

88.In terms of the defence of provocation the defence, as advanced through the evidence of the applicant, was very straightforward.  It was simply that for some time he suspected his wife of adultery; there was an acrimonious breakdown in their relationship which led to an incident in which he struck her; she left home and reported the matter to the police; on the day of the murder he planned to kill himself in front of her and travelled to her workplace to do so, taking with him a knife; at her workplace in the confrontation with his wife she behaved provocatively towards him and he lost control of himself and stabbed his wife to death. 

89.In weighing up what the applicant said, the jury would have had regard to inherent improbabilities in what he said, inconsistencies between his various accounts, the evidence of words overheard by other witnesses, the forensic evidence and the evidence of the applicant’s relationship with the deceased and all the circumstances leading to the breakdown in that relationship. 

90.The directions of the judge on the burden and standard of proof were very clear and were repeated.  She directed the jury on the first day of the summing up as follows:

“ Now, I will remind you that the defendant was not obliged to give evidence. He was not obliged to call any witness. He does not have to prove his innocence. He does not have to prove anything.”

Then shortly after this she directed the jury in detail, saying:

“ In this case, it is for the prosecution to prove that the defendant is guilty of murder. The defendant does not have to prove anything. In a criminal trial, the burden of proving the defendant’s guilt is on the prosecution. Therefore, even if after considering all the evidence, you do not believe the defendant’s evidence, or part of his evidence, that does not relieve the prosecution of it’s burden to prove that the defendant is guilty of murder. The burden is on the prosecution. The prosecution have to make you sure that the defendant is guilty of murder.

Then comes to what we usually call the standard of proof.

The burden is on them, the standard is you have to be sure.  If you are not sure, the defendant is not guilty.  Only if you are sure that you can find the defendant guilty, if you are sure, that is what is called beyond reasonable doubt as well, if you are sure that the prosecution have proved that the defendant is guilty of murder, then you must return a verdict of guilty of murder.  If you are not sure, your verdict have to be not guilty.”

91.On the second day of the summing up the judge commenced with the following further directions on the burden and standard of proof:

“… I will just remind you once more again of this particular part, which is very, very important, and that is for the prosecution to prove that the defendant is guilty of murder.

The defendant does not have to prove anything. In this criminal trial, the burden of proving the defendant’s guilt is on the prosecution. So therefore, if after considering all the evidence, that even if you do not believe the defendant’s version, any part of the evidence, then it does not relieve the prosecution of its burden to prove that the defendant is guilty of murder.

Always remember that it is for the prosecution to prove that he is guilty and the standard, of course, is that you must be sure. You have to be sure that he is guilty of murder before you can convict him of murder. If not, then he is not guilty of murder.

Just follow the directions I have given you, consider the evidence, consider the ingredients needed and if the issue of provocation arises, follow that the same way that I have already directed you. All right?”

92.These general directions, on their own, may not be enough to cure the non-direction, but they were supplemented by further directions on the burden and standard of proof in relation to the elements of murder.  The judge said:

“ The burden is throughout on the prosecution to prove each ingredient of the offence beyond reasonable doubt. That is what I have told you, you have to be sure. So before you may convict the defendant of the murder of Lee Lai-wa, you would have to be sure of each of the following ingredients:

(1) That the defendant committed an act or acts which caused Lee Lai-wa’s death;

(2) That the killing was unlawful; and

(3) That at the time of the act or acts which caused Lee Lai-wa’s death the defendant either intended to kill her or intended to cause Lee Lai-wa grievous bodily harm - in other words, really serious bodily harm.”

This she followed with:

“ At the end of the day you have to ask yourself whether the prosecution have made you sure that at the time of the act or acts which caused Lee Lai-wa’s death, the defendant either intended to kill her or intended to cause her really serious bodily harm. And if you are sure of all the three ingredients, then subject to the question of provocation which can reduce a finding of murder to manslaughter, the defendant is guilty of murder.”

93.Finally, there were directions specifically in respect of the defence of provocation.  In relation to the burden and standard of proof as it operated in respect of this defence the judge said:

“… Because the prosecution must prove the defendant’s guilt, it is for the prosecution to make you sure that this was not the case of provocation, and not for the defendant to establish that it was.”

Later, she said:

“ Because the prosecution must prove the defendant’s guilt, it is for the prosecution to make you sure that this was not a case of provocation. It is not for the defendant to prove that there was provocation, in other words, it is for the prosecution to show you no provocation in this case at all. You do not say ‘Defendant, you prove to me that there was provocation’. No. It is for the prosecution to show you no provocation in this case.”

94.On a number of occasions the judge incorporated an “is or may be” direction in relation to the provocation defence.  When directing on the second limb of provocation she said: 

“ If, on the other hand, your answer is that what was done and/or said would or might have caused an ordinary, sober person of the defendant’s age and sex to do as he did, your verdict will be ‘not guilty of murder, but guilty of manslaughter by reason of provocation’.”

Towards the end of her summing up, the judge gave the following direction:

“ Consider all that and if you conclude, after consideration, that the defendant was or might have been provoked in this sense that I have just mentioned, then you must ask yourself the next question and that is, was or may the conduct have been such as to cause an ordinary and sober person of the defendant’s age (59 years old) and his sex (male) to do as he did.

So there are two steps.  First of all, was he provoked first?  If he was not provoked, that is the end of the matter, you do not have to consider any further.  But if he was or may have been provoked, then you go on to think all right, he was provoked, he might have been provoked …”

Then, in directing the jury on the second question the judge concluded her directions with:

“ If, on the other hand, your answer is that what was done and/or said would or might have caused an ordinary, sober person of the defendant’s age and sex to do as he did, your verdict will be not guilty of murder, but guilty of manslaughter by reason of provocation.”

95.An “is or may be true” direction was required in respect of the applicant’s interviews and his in-court testimony.  But, on the one live issue in the case, namely the defence of provocation and the evidence relating to it, such a direction was given.  When these directions are taken together with the other directions the judge gave we are satisfied that the Liberato message was sufficiently conveyed so that there could be no confusion in the jury’s mind as to the burden and standard of proof, no risk that the jury would have misapplied the burden of proof and no risk that the jury would have made any finding against the applicant contrary to his evidence if that evidence had given rise to a reasonable doubt.  We are not persuaded that the ground of appeal that there was a non-direction in respect of the applicant’s in-court testimony has merit.

96.In respect of the misdirection in regard to the interviews we are not persuaded that it was, ultimately, a material irregularity.  Here, the applicant testified on oath and both his video interview explanation and evidence on oath were essentially the same except on one issue where the applicant asked the jury to accept his in-court testimony in preference to his out-of-court statement.  Furthermore, the judge gave clear and repeated directions on the burden and standard of proof which would have left the jury in no doubt as to how they were to be applied and would have negated any prejudice to the applicant arising from the misdirection.  We do not see that the misdirection is material and are of the view that it does not impact upon the safety of the conviction. 

97.There is no doubt that the proviso can be applied even where there has been a misdirection on how the jury should deliberate and even when the charge involved is one of murder, carrying a mandatory sentence of life imprisonment.[8] Had we concluded that the misdirection amounted to a material irregularity we would have had no hesitation in applying the proviso.  However, for the reasons we have given, we are of the view that in the circumstances of the present case there is no need to have recourse to the proviso.

Conclusion

98.We grant the application for leave to appeal against conviction.  However, for the reasons set out in this judgment we dismiss the appeal. 

Ms Anna YK Lai SADPP, of the Department of Justice, for the respondent

Mr Boyton David Rex, instructed by AM Mui & Kwan, assigned by DLA,for the applicant

[1] The evidence of one of these witnesses, Madam Nguyen Thi Nguyen, was summarised in the admitted facts.  Two other witnesses, Madam Leung and Madam Ho, gave oral evidence. 

[2] This was taken by the judge as a possible contradiction of or departure from the admitted fact that the records of interview were voluntary.

[3] Liberato v The Queen (1985) 159 CLR 507.

[4] See Jim Fai v HKSAR (2006) 9 HKCFAR 85 at 93E-F.

[5] The “is or may be true” direction was described by Cheung JA in HKSAR v Tsang Tak Wah Andy [2011] 4 HKLRD 678 at 685, paragraph 13 as “a concrete manifestation of the requirement that they [the jury] can convict if and only if they ‘have no reasonable doubt’.”

[6] See the comment by Chan PJ in Jim Fai v HKSAR (2006) 9 HKCFAR 85 where he said at 93I-J, paragraph 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.”

[7] See Chan PJ, in giving the Determination of the Appeal Committee of the Court of Final Appeal in Ou Ka Chi v HKSAR FAMC 63/2006, unreported, 19 April 2007, paragraph 5.

[8] See Lam Chi Kwong v HKSAR (2008) 11 HKCFAR 623 where Bokhary PJ, with whom the other members of the court agreed, said in his judgment which dealt with an appeal from a conviction for murder:

“… the proviso itself is an instrument of justice.  There is no reason in principle why the proviso cannot be applied to affirm a conviction even though there has been a misdirection on how the jury should deliberate.  As always, the test is … whether a reasonable hypothetical jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion.  This test conforms with the right to trial by jury.”