HKSAR v. Fok Ka Po, Joe and Others

CACC 423/2015

[2018] HKCA 271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 423 OF 2015

(ON APPEAL FROM HCCC NOS 120 AND 432 OF 2014 (CONSOLIDATED))

________________________

________________________

Before:  Hon Macrae VP, McWalters JA and Pang JA in Court

Date of Hearing:  7 March 2018

Date of Judgment:  9 May 2018

________________________

J U D G M E N T

________________________

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

1.The three applicants were jointly charged with one count of conspiracy with six named co‑conspirators to throw corrosive fluid with intent to burn, contrary to section 29(c) of the Offences against the Person Ordinance, Cap 212 and sections 159A and 159C of the Crimes Ordinance, Cap 200. On 11 November 2015, after a trial before then Deputy High Court Judge Campbell-Moffat (“the judge”) and a jury, the applicants (whom we shall refer to either collectively as “the applicants” or, where necessary for the purposes of distinguishing between them, “A1”, “A2” or “A3”) were convicted by majority verdicts of 5 to 2, 6 to 1 and 6 to 1 respectively. On 7 December 2015, A1 and A2 were sentenced to terms of 18 years’ imprisonment, whilst A3 was sentenced to 19 years’ imprisonment.

2.A2 initially sought leave to appeal against conviction only, whilst A1 and A3 have sought leave to appeal against both conviction and sentence.  We reserved our decision in respect of the appeal against conviction and said we would deliver our judgment and the reasons therefor in due course.  This is our judgment.

The facts

The prosecution case

3.It was alleged that the applicants had conspired together to throw corrosive fluid with intent to burn the victim, Ms Tam (PW1), whose English name was “Perry”.  The background to the conspiracy was that in 2007, PW1 and her boss Mr Lee, who was married to Ho Ping-yee (Madam Ho), became lovers.  At the time, PW1 was a clerk in Mr Lee’s company in Cheung Sha Wan, which manufactured watches and clocks.  The marriage between Mr Lee and Madam Ho was at the time not a happy one.  By Christmas 2011, Madam Ho had become aware of her husband’s infidelity.

4.On 8 March 2013, PW1 was in the company office when the doorbell rang.  When she went to answer the door, she was met by a young man wearing a facemask and holding a paper cup in his hand.  The young man was PW3, who was 15 years of age at the time.  PW3 asked PW1 if she was “Perry”.  PW1 was suspicious of the enquiry and turned away without answering the young man.  She then felt some liquid splash on the right side of her body.  She immediately rushed into another room, where she stumbled and fell. As a result, one of her colleagues, Ms Ng, helped her up and, as she did so, Ms Ng came into contact with the liquid which had been thrown at PW1.

5.Subsequent analysis of the liquid by a Government Chemist established that it was a 92% concentration of sulphuric acid.  On medical examination, 3.5% of PW1’s body was found to have been affected by the acid.

6.A1, who was also an employee of Mr Lee’s company, was arrested.  He revealed, in three interviews with the police, that sometime before Chinese New Year 2013, Madam Ho had asked A1 to introduce people to her so that she could “disturb” PW1.  A meeting was subsequently arranged at a seafood restaurant in Lei Yue Mun, Kowloon.  Present at the meeting were A1, A2 (also known as “Shea Chai” or “Shea Gor”), Ho Hoi Kin (also known as “Ho Lan-chai” or “Holland Chai”) and Madam Ho.  Madam Ho said that she wanted somebody to splash something on PW1.  A photograph of PW1 was then passed around those present.

7.A1 further explained that after the meeting, A2 called to tell him that somebody would telephone A1 to find out if PW1 was at the office.  Since A1 also worked with PW1, he would be able to know whether or not she was at work at that time.  According to call records and A1’s interview, he received calls which he believed were from A2 asking whether PW1 was in the office, shortly before PW1 was splashed with acid.  A2 had then telephoned him afterwards to say that the job had been done.

8.In relation to A2, Lin Chun‑kit (PW2) testified that he had had a meeting with A2 in late February 2013.  At that meeting, A2 told him that he had a job for him to do.  He was told that PW2 was to splash some corrosive liquid on a woman who had seduced someone else’s husband.  PW2 therefore called another person, Ah Sam, for assistance.  Ah Sam said that he would arrange for someone to do the splashing, but he would require HK$40,000 for doing so.  PW2 therefore contacted A2 and asked for HK$60,000.  PW1’s details were then passed to PW2.

9.In respect of A3, Kwok Siu‑yu (PW3) testified that on either 2 or 3 March 2013, A3 had called him and said he had a job for him to do, for which he would be paid HK$3,000.  He was then given an envelope containing two addresses; one being PW1’s work place, the other PW1’s mother’s residential address, where PW1 would sometimes stay. PW3 said he was later told by A3 to go to PW1’s workplace to see if PW1 was there.  On 8 March 2013, having failed to locate PW1 previously on several occasions, PW3 was given a face mask and a paper cup with some liquid inside it. PW3 then went to find PW1 at her workplace with the intention of splashing acid on her.

The defence case

10.A1 elected to give evidence at trial.  He denied that there had been any agreement with the others to throw acid at PW1.  The meeting at the restaurant in Lei Yue Mun was a discussion as to how to harass PW1 so as to persuade her to leave Mr Lee alone.  If the persuasion did not work and PW1 did not listen, “then she had to be slapped for the purpose of giving vent to anger”[1]. Ho Lan-chai was to do the persuasion.  As for the contents of his various interviews with the police, A1 claimed that they had been obtained by threats and inducements, as well as trickery.

11.A2 also elected to testify.  He denied that he had joined in the discussion at the restaurant in Lei Yue Mun.  His function had been to arrange the seafood and determine how it should be cooked.  He agreed that he had sat down at the table briefly, but he did not hear any agreement as alleged.  He said he returned to his own seafood shop after making sure that the preparation of the seafood had been done properly.  He further claimed that PW2 had framed him up after trying unsuccessfully to blackmail him for HK$600,000.

12.A2 further maintained that his telephone records with Madam Ho were concerned with a debt owed by Mr Lee in the Mainland.  Although there were a number of telephone calls between himself and Madam Ho before 8 March (the date when acid was thrown at PW1) and none thereafter, A2 explained that 8 March was the date Madam Ho had arranged another dinner but she did not show up; accordingly, he was embarrassed to call her that day.

13.A3 elected not to testify at trial.  The defence presented on his behalf was that he was not present at the restaurant meeting or the incident at which PW1 was splashed with acid, and that PW3 had lied about his involvement in the conspiracy.

Ground of appeal against conviction (the standard of proof)

14.The primary ground of appeal, which is common to all of the applicants, concerns the alleged misdirection on the standard of proof.  In her summing‑up, the judge directed the jury as follows[2]:

“In this case, the prosecution must prove that the defendant is guilty. A defendant does not have to prove his innocence. In a criminal trial, the burden, the responsibility, for proving a defendant’s guilt is on the prosecution. How does the prosecution succeed in proving a defendant’s guilt? Well, they make you sure of it. That is the same, if you have heard the phrase, of being ‘satisfied beyond reasonable doubt’. That is the old way that we used to say it. Nowadays we just say ‘you have to be sure’. Nothing less than that will do.

If after considering all of the evidence you are sure the defendant is guilty, then you will find him guilty of the offence. If you are not sure, then the verdict is not guilty.

If the defence put forward by any one of the defendants is or may be correct, then the defendant is entitled to be acquitted.  You do not positively have to believe the evidence relied upon by the defence.  If that evidence gives rise to a reasonable doubt about the issue, you cannot find that issue against the defendant contrary to the evidence.”

15.No issue is taken with these directions, which are in conformity with the Specimen Directions in Jury Trials promulgated by the Hong Kong Judicial Institute.  Had the matter been left there, no complaint would have been made.  However, the judge added this remark, which forms the basis of the complaint[3]:

“But I will say, ladies and gentlemen, I think somebody said it, that when we say ‘sure’ we do not mean 100 per cent sure. It is a common sense word and you understand what it means.”

Accordingly, it is submitted on behalf of all three applicants that, by suggesting that the jury did not need to be 100% sure, she effectively lowered the grade of the standard of proof applicable to a criminal case, thus permitting the jury to convict if they were less than sure.

16.Mr Victor Lee, on behalf of A1, relied upon the authority of R v Yeung Kuen Chi & Another[4], in which the Court had quashed the conviction of the appellant where the trial judge had directed the jury in the following terms[5]:

“There is a burden on the Crown to prove every element of these charges and the Crown must do so beyond a reasonable doubt. He cannot do so to a hundred percent certainty. That is not possible, but you must, in other words, be sure.”

17.Barker JA, in delivering the judgment of the Court, said[6]:

“We are aware that it is common parlance in Hong Kong to talk of percentages of certainty. That may do little harm in social conversation, but it is wholly inappropriate in the legal context, for it usually involves a flat contradiction. Thus 80% certainty is not certainty at all; nor is 99% certainty. And similarly with the use of the word sure. A witness is either sure, or he is not. There is no half way house.”

The Court went on to hold that trial judges should avoid the temptation to explain what was meant by the phrase “beyond a reasonable doubt” or the word “sure”: they were simple English words which a jury were capable of understanding without explanation[7].

18.Mr Marray, on behalf of A2, and Mr McGowan, for A3, allied themselves with Mr Lee’s submissions but added that the evidence against their clients was not overwhelming and rested on the testimony of an accomplice witness; hence, a correct direction as to the burden and standard of proof was fundamental if they were to receive a fair trial.  Since the impugned remark had been given at the beginning of the summing‑up, coupled with the admonition that the burden and standard of proof was “the most important”[8] direction she would be giving, recourse to the summing‑up as a whole and the ensuing repetition of the need to be sure could not remedy the defect.

The respondent’s reply (the standard of proof)

19.Ms Lam, on behalf of the respondent, accepted that the specimen directions on the burden and standard of proof do not contain the judge’s additional remark or any formulation to that effect.  Nevertheless, she argued that the summing‑up should be read as a whole and the impugned remark put into context.  She submitted that not every reference to “mathematical certainty” in the context of a direction on the standard of proof necessarily amounted to a material irregularity.

20.She relied on the later judgment in R v Ngan Chun Yee & Others[9], where Roberts CJ, giving the judgment of the Court, said of the decision in Yeung Kuen Chi & Another[10]:

“We do not think that the judgment in Yeung should be given a wider application than its terms necessarily require, so as to make improper any direction which happens to be in similar terms to those used by the judge in Yeung; nor any direction which does not accord with that recommended in Yeung.”

He went on to say[11]:

“In this case, there is a reference to ‘absolute mathematical certainty’. If the direction had stopped there it might well have been objectionable. It does not. The judge explains what he means by ‘a degree of absolute mathematical certainty’, namely, ‘beyond all doubt whatever’.

No proper objection can be taken to a direction that the prosecution is not required to prove its case beyond all doubt whatever, though such a phrase is best avoided.

Furthermore, in about half a dozen other places, the judge used the phrase ‘beyond a reasonable doubt’. The jury can, in our view, have been left in no doubt whatever as to the proper standard of proof which had to be attained by the Crown.

It is perhaps of interest to mention, as showing how differently courts have approached the words used in a summing‑up on this matter, Walters v R[12], in which the Privy Council saw nothing wrong in a direction which contained the following passage –

‘the law does not require the prosecution to prove its case with absolute certainty for the simple reason that nothing in life can be proved with absolute certainty.’”

21.Ms Lam pointed out that more recently in HKSAR v To Kwan Wing[13], the additional words used in the summing‑up, which were the subject of criticism on appeal, were:

“But ‘sure’ does not necessarily mean 100 per cent certain”[14].

Unlike the present case, however, the term ‘beyond reasonable doubt’ was never mentioned by the trial judge in To Kwan Wing.  Nevertheless, the Court held that regard was to be had to the summing‑up as a whole[15]. When that was done, it was clear that the judge had directed the jury correctly as to the requisite standard of proof[16].

22.The respondent points out that right at the commencement of her directions on the burden and standard of proof, the judge had equated being “satisfied beyond reasonable doubt” with being “sure”, and emphasised that “nothing less than that will do”[17]. The judge went on[18]:

“If after considering all of the evidence you are sure the defendant is guilty, then you will find him guilty of the offence. If you are not sure, then the verdict is not guilty”.

Furthermore, immediately after the impugned sentence, the judge said of the word “sure”[19]:

“It is a common sense word and you understand what it means”.

23.Thereafter, in no less than 19 places that followed in the summing‑up, the judge consistently and correctly used the word “sure”, without any addition or refinement.  These included a direction in the middle of her summing‑up to the effect that[20]:

“So even if you rejected it all, you would still have to decide: have the prosecution proved its case so that I am sure.”

Later, she said[21]:

“Before you convict any one of the defendants of the charge against them, you must (be) sure of this.”

And still later[22]:

“If having done so you are sure there was a conspiracy, and that the defendant you are considering was a party to it then you must convict, and if you are not sure, you must acquit.”

24.Ms Lam relied on the statement of principle in Ferguson v The Queen[23], where the Privy Council held, at 98H-99B:

“The Board expressed the view in that case[24] that the formula used in summing up does not matter so long as it is made clear to the jury, whatever words are used, that they must not return a verdict against a defendant unless they are sure of his guilt. Their Lordships’ Board agree with these comments, with one reservation. Though the law requires no particular formula, judges are wise, as a general rule, to adopt one.

The time-honoured formula is that the jury must be satisfied beyond reasonable doubt.  As Dixon CJ said in Dawson v The Queen (1961) 106 CLR 1, 18, attempts to substitute other expressions have never prospered.  It is generally sufficient and safe to direct a jury that they must be satisfied beyond reasonable doubt so that they feel sure of the defendant’s guilt.  Nevertheless, other words will suffice, so long as the message is clear.”

25.The respondent’s position was that, looking at the summing‑up as a whole, the judge had made it clear to the jury what the requisite standard of proof was; namely, that to be “sure” meant being “satisfied beyond reasonable doubt”, and not any doubt whatsoever.  All her subsequent directions were governed by that all‑embracing direction.  Given the terms of the governing direction and the subsequent re‑affirmations of it, the impugned sentence would not have diminished the standard of proof. The jury were told in clear terms that they must be “sure” or “satisfied beyond reasonable doubt” of guilt before they could return a verdict of guilty and that nothing less would do.

The other grounds of appeal

26.On behalf of A1, it is also argued by Mr Lee that the judge had intervened during A1’s evidence to such an extent as to give the impression to the impartial observer that the proceedings were not being conducted fairly and impartially.  During examination-in-chief, it is contended, the judge made improper and unnecessary remarks that denigrated the defence and its conduct in the eyes of the jury.  In particular:

(a)  the judge interrupted counsel’s examination of A1 to say of Madam Ho’s comments to him about her husband: “Well, we’re getting into character assassination by hearsay, aren’t we?”[25];

(b)  on another occasion when the judge anticipated that further hearsay was going to be given, she said to counsel that she was “just a bit quicker off the mark” than defence counsel[26].

27.During cross-examination of A1 by A2’s counsel, complaint is made that the judge intervened more frequently[27]. It is said that the judge took over asking questions from A2’s counsel, which impacted on the cases of both A1 and A2.  In doing so, she made inappropriate remarks, in particular:

(a)  “No, you still haven’t answered my question, Mr Fok [A1].  Right, it’s a very clear question.  It is [counsel for A2’s case] … the only reason that the 2^nd Defendant was there that evening was because of his connection with seafood.  Is that right or isn’t that right?”[28]; and

(b)  “Well, you’ve done an excellent job, Mr Fok, in not answering my question.”[29]

28.Mr Lee submitted that the impression conveyed by such interventions was that A1 was not a credible witness because he would not answer the judge’s questions.

29.It is further complained that, during cross-examination by the prosecution, the judge assumed the role of prosecutor by directly asking A1 questions[30] designed to show that he was prepared to lie in court[31].  The judge made the following comments, questioning A1’s credibility[32]:

(a)  “Yes, but you see … Mr Fok, with the greatest respect, that’s not an answer.  Did you make it up?  Were you told to say it?  Why say somebody said ‘the task has been done’?”; and

(b)  “Right, so you just don’t know why you said it, is that really your answer?”.

30.Finally, it is complained that the judge asked A1 further questions at the end of re-examination[33], leading to further rounds of cross-examination and re‑examination, which are said to have unfairly impacted on the applicant’s credibility[34].

31.On behalf of A3, Mr McGowan argued an additional four grounds of appeal, namely, that:

(a)  The judge inaccurately summed up PW3’s evidence on an important aspect of his account involving the participation of A3;

(b)  The judge failed to remind the jury of the evidence of the security guard (PW7) and PW1’s mother (PW9) (counsel erroneously referred to her throughout his grounds of appeal and written submission as PW6), who both said they had seen no one else together with PW3, in contrast with PW1’s brother (PW17), who suggested otherwise;

(c)  The judge on a number of occasions mentioned PW3’s young age to account for certain “deficiencies” in his evidence; and

(d)  The judge was at fault in distorting the gist of a conversation between PW3, Yu Tan and A3, when she said, “There is a conversation between these three about Yu Tan being a little brother or a big brother or whatever, anyway a brother of his and whether he is involved in the job”[35], when the evidence was merely, “Is your younger brother also involved”[36].

32.Mr McGowan accepted that none of these additional grounds would by themselves be enough to unsettle the conviction. However, the overall effect of the errors rendered the summing‑up unbalanced and unfair.

Respondent’s reply to the other grounds of appeal

33.In answer to Mr Lee’s further ground of appeal on behalf of A1, Ms Lam submitted that the judge was entitled to intervene if she considered hearsay evidence was being given: that was her function as the judge of law.  As for the other interventions, when properly viewed in context, they were clearly for the purpose of clarifying and focussing A1’s evidence for the jury.  She relied on the decision in HKSAR v Lai Oi Yan[37], at para 67, where the Court held that where interventions “are made for the purpose of clarifying the evidence or are made for a legal procedural or evidential purpose, or are made in the exercise of a case management function”, they will usually be proper and “should not have impacted upon the fairness of the trial”[38].

34.Further, the judge waited until the end of re‑examination before asking further questions, after which counsel were given the opportunity to ask further questions.  This was the correct procedure.  Moreover, the tone and manner of the judge’s questioning seemed neither challenging nor hostile.

35.In response to Mr McGowan’s additional grounds of appeal on behalf of A3, Ms Lam did not accept that the judge had wrongly summarised the evidence.  PW3 had merely said, “Then he (A3) suggested going to the 7‑Eleven store to have some food together” and “after eating, waited for another half an hour approximately”[39]. He did not specifically say that they actually went to the 7‑Eleven store together.  In any event, the issue was whether A3 was present on 8 March 2013, and whether he carried the cup of sulphuric acid.  PW3 had clearly testified that A3 was with him and had showed him the cup of sulphuric acid[40], regardless of the evidence of who went to the 7‑Eleven store.  As the judge pointed out in relation to certain peripheral inconsistencies in this area[41]:

“The issue is: was anyone else there? Is it not? And if it included [A3], was [A3] … carrying a cup of sulphuric acid?”

36.As for the alleged failure to remind the jury of the existence of other evidence, namely from PW7 and PW9, which was or might have been at variance with that of PW17, the judge had at the outset of her summing‑up reminded the jury, as she was bound to do[42]:

“If I do not mention something which you think is important, you should have regard to it in any event, and you should give it such importance as you think fit because when it comes to the facts it is your judgment that count but not ours.”

37.Furthermore, during the trial, the jury had themselves raised questions as to whether PW3 was alone or with somebody outside the building[43], which had led to further questions being asked by prosecuting counsel of both PW7 and PW9[44]. It was, therefore, unrealistic to suggest that the jury would have needed reminding of the point and the various pieces of evidence going to the point.

38.As for PW3’s young age, it was a fact that he was a 15‑year‑old boy at the time of the offence.  The judge had nevertheless properly pointed out that PW3 had failed to give answers to certain matters raised by A3[45], and correctly reminded the jury that PW3 had something to gain in the form of a reduced sentence by giving evidence against the applicants[46].  Accordingly, she warned them to look at his evidence carefully when deciding whether to believe him[47].

39.As to the argument that the judge wrongly summarised the conversation between PW3, Yu Tan and A3, Ms Lam submitted that there was no inaccuracy in the judge’s direction.  It was a matter for the jury what they made of this evidence.  In any event, the point was trifling.

40.Ms Lam contended that none of these minor criticisms, when viewed individually or cumulatively, rendered the summing‑up unbalanced or unfair, and A3’s conviction unsafe or unsatisfactory.  The jury was left in no doubt that they were to form their own judgment about the witnesses and their evidence, to reject the judge’s view if they did not agree with it and to acquit A3 if they were not sure.

Discussion

41.We can deal with the additional grounds of Mr Lee on behalf of A1, and Mr McGowan on behalf of A3, very simply.  Dealing first with Mr Lee’s complaint about the judge’s interventions, we have read the transcript of A1’s evidence in full and in context.  We do not agree that the impartial observer would have believed that the proceedings were being conducted otherwise than fairly and impartially.  The point appears to be at its strongest in the exchanges described at paragraph 29 (a) and (b) above. Yet, when one looks at the run‑up to those exchanges in the preceding evidence, it is clear that the judge was trying to ensure that the applicant understood prosecuting counsel’s original question properly and in context, a point that his own counsel had also made to the judge and which she agreed with[48].  It was the judge’s function to intervene if she thought the questions were unclear or unfair.  That is what she did.  Indeed, she did it again shortly after the above exchange, when prosecuting counsel asked a further question in a similar vein[49]:

“Q. So did you make it up, (Entries) 670 and 672?

COURT: No, that’s unfair. He’s not making it up because he’s referring to what everybody knows about by that stage, …, which is that there’s been a splashing of acid, so he can’t be making it up as such, can he? …

PROSECUTING COUNSEL: Very well. All right.”

42.It was also the judge’s function to see that questions in their proper form were answered if possible and not left hanging in the air.  That is what she was doing in the exchange of which complaint is now made at paragraph 27(a) above.

43.There is nothing in these complaints.  We might add that A1 was represented at trial by an extremely experienced criminal advocate.  Had counsel felt that his task was being made more difficult, or his client’s position prejudiced in some way by the judge’s interventions, he would have said so.  He did not.

44.In respect of Mr McGowan’s additional grounds of appeal, we agree with Ms Lam that, viewing the evidence strictly, PW3 did not actually say he went with A3 to the 7‑Eleven store.  But even if that could be implied and the judge was being too literal in suggesting otherwise, we cannot see what difference it would have made to the material issues at trial.  As the judge said in respect of this aspect of the evidence, the real issues were whether A3 was present that day and whether he carried the cup of acid. Whether one or both went to the 7‑Eleven store and had food there or somewhere else was not important.

45.As to whether the judge reminded the jury of the alternative evidence of PW7 and PW9 on the issue of whether PW3 was alone outside a building, we also agree with Ms Lam that this issue could not have been lost on the jury.  They were the ones who had asked the question as to whether PW3 was alone, which prompted the recalling of PW7 and PW9, so that they could deal with the jury’s question.  It is fanciful to suppose that the jury would not have been alive to the competing evidence on this matter, whether the judge mentioned it or not.  The complaint is wholly unrealistic and without substance.

46.In respect of the complaint that the judge on a number of occasions referred to PW3’s young age, it was the fact, as the jury would have well appreciated, that he was only 15 years of age at the time of the offence and 18 years of age at the time of his evidence.  We cannot accept the suggestion that the judge’s references to his age had the effect - wittingly or unwittingly - of excusing or explaining any deficiencies in his evidence.  Juries are to be credited with some degree of common sense and experience of human nature.  That they might somehow have been encouraged to overlook certain unsatisfactory aspects of his account by the judge’s repeated references to his age at the time of the offence, when they had been specifically urged to exercise caution in relation to his testimony because he had something to gain from giving evidence, was an absurd proposition and should never, with respect, have been put forward as a ground of appeal.

47.As for the final complaint about the reference to the conversation between PW3, A3 and Yu Tan about the latter’s “younger brother”, it was a matter for the jury, in the context of the evidence of the meeting, what PW3 meant by “younger brother”.  The judge effectively left the matter to the jury.  The complaint has no merit and was of no consequence.

48.In our judgment, there was no merit in any of the additional grounds of appeal argued by Mr Lee on behalf of A1, and Mr McGowan on behalf of A3.  Accordingly, we refuse leave to appeal on any of these grounds.

49.We now turn to the principal ground of appeal argued by all applicants concerning the judge’s direction on the standard of proof.

Direction on the standard of proof

50.There is a superficial attraction to the notion that the judge’s comment “when we say ‘sure’ we do not mean 100 per cent sure” might have conveyed the impression, when viewed in isolation, that the jury could be less than sure about their verdict.  However, such a comment cannot be viewed in isolation.  As Lord Diplock succinctly put it on behalf of the Board in Walters v The Queen (PC),a case which was also concerned with a judicial direction as to the standard of proof:[50]

“It is the effect of the summing‑up as a whole that matters.”

Even in Yeung Kuen Chi and Another, the Court had said[51]:

“We entirely accept that the summing‑up does have to be read as a whole. But the initial all‑embracing and, as we held, incorrect direction as to the standard of proof was the umbrella beneath which all subsequent directions sheltered and such directions were subject thereto.”

51.More recently, the Court in To Kwan Wing reviewed the decision in Yeung Kuen Chi and Another and the various authorities which followed in its wake.  In respect of a similar argument to that mounted before us, the Court in To Kwan Wing held as follows[52]:

“17. At the outset of his summing up, the judge directed the jury in respect of the standard of proof:

“How does the prosecution succeed in proving a defendant’s guilt? The answer is by making you sure of it. Nothing less than that will do. But “sure” does not necessarily mean 100 per cent certain.”

18. In The Queen v Yeung Kuen Chi & Another this Court allowed an appeal and quashed the conviction of an appellant in whose trial the judge had directed the jury in respect of the standard of proof in the following terms:

“There is a burden on the Crown to prove every element of these charges and the Crown must do so beyond a reasonable doubt.  He cannot do so to a hundred percent certainty.  That is not possible, but you must, in other words, be sure.”

19. In the judgment of the Court, Barker JA deprecated the suggestion made by the judge to the jury that there was a difference between “certain” and “sure”. He said that in directing the jury no attempt should be made to explain the word “sure”. It was a “plain and simple word.” He made similar observations in respect of the phrase “beyond reasonable doubt”. Finally, he concluded:

“… all references to the inability of the prosecution to prove its case to a mathematical certainty or to any degree of certainty or sureness are to be avoided.  They are as confusing as they are misleading.”

20. In subsequent judgments, this Court made it clear that the drawing of such a distinction by a judge did not vitiate the summing up, so long as the judge made it clear to the jury in his directions that they must be sure of guilt before they returned a verdict of guilty. Regard was to be had to the summing up as a whole.

21. It is to be noted that having given the initial direction to the jury quoted above, the judge went on to direct the jury:

“You just feel sure of it, then you can find him guilty; if you are not sure then find him not guilty. As simple as that. If after considering all the evidence you are sure that he is guilty you must return a verdict of guilty. But if you are not sure your verdict must be not guilty. That is in respect of each of the counts”.”

52.It is difficult to see why there should be any conceptual difference between the direction complained of in To Kwan Wing, namely “… sure does not necessarily mean 100 per cent certain” and the one impugned before us, namely “when we say ‘sure’ we do not mean 100 per cent sure”. Although in common parlance one might use the word “certain” in preference to “sure” depending on the particular context, in the present context the two words mean essentially the same thing: indeed, each word is used as a synonym for the other in the Shorter Oxford English Dictionary.  We observe that in R v Stephens[53], the Court of Appeal of England and Wales considered that distinguishing between being “sure” and being “certain” was unhelpful to a jury and should be avoided. In any event, the standard direction on the standard of proof in this jurisdiction requires the jury to be directed that they must be “sure” of guilt.

53.Furthermore, “the umbrella beneath which all subsequent directions sheltered”, as the Court in Yeung Kuen Chi and Another put it[54], was in that case[55]:

“There is a burden on the Crown to prove every element of these charges and the Crown must do so beyond a reasonable doubt. He (sic) cannot do so to a hundred per cent certainty. That is not possible, but you must, in other words, be sure.”

In the present appeal, however, the so‑called “umbrella” direction on the burden and standard of proof was rather fuller and more elaborate[56]:

“In this trial, the prosecution must prove that the defendant is guilty. A defendant does not have to prove his innocence. In a criminal trial, the burden, the responsibility, for proving a defendant’s guilt is on the prosecution. How does the prosecution succeed in proving a defendant’s guilt? Well, they make you sure of it. That is the same, if you have heard the phrase, of being “satisfied beyond reasonable doubt”. That is the old way that we used to say it. Nowadays we just say “you have to (be) sure”. Nothing less than that will do.

If after considering all of the evidence you are sure the defendant is guilty, then you will find him guilty of the offence. If you are not sure, then the verdict is not guilty.

If the defence put forward by any one of the defendants is or may be correct, then the defendant is entitled to be acquitted. You do not positively have to believe the evidence relied upon by the defence. If that evidence gives rise to a reasonable doubt about the issue, you cannot find that issue against the defendant contrary to the evidence.

But I will say, ladies and gentlemen, I think somebody said it, that when we say “sure” we do not mean 100 per cent sure. It is a common sense word and you understand what it means.”

54.The jury were, therefore, directed that being “sure” was the same as being “satisfied beyond a reasonable doubt” and that “nothing less than that would do”.  Furthermore, they were told that if they entertained a reasonable doubt about any issue, they could not resolve that issue against the defendant.  They were also told immediately following the impugned statement that “sure” was a common sense word.  In our judgment, anyone listening to these directions as a whole, together with the repeated incantations that they were to be sure in the remainder of the summing‑up, would not have thought that they could convict if they nursed a reasonable doubt or were less than sure.  Certainly none of the five counsel involved in the trial saw fit to raise any concern about the matter with the judge either during or after her summing‑up.  Of course, none of those counsel were before us at this appeal.

55.The opening and closing speeches of prosecuting counsel have been included in the appeal bundle.  On three occasions in opening to the jury, prosecuting counsel referred to the standard of proof which the prosecution had to satisfy:

“The defendants would be guilty if you’re satisfied beyond reasonable doubt that they’d agreed to throw the corrosive liquid at … [PW1] …, and when they made the agreement, that they intended to carry out their respective agreement”[57];

“… your task is to see whether the prosecution has satisfied you beyond a reasonable doubt as to whether all or one of the three accused did agree in the way that the charge says they did. So that’s my responsibility … the prosecution team’s responsibility is to prove to you beyond -- to demonstrate to you beyond reasonable doubt that this agreement was actually in place”[58];

and

“But we say, at this stage anyway, ... that there is enough evidence … to show beyond reasonable doubt that there was the agreement that’s set out on the indictment”[59].

56.In his closing speech, prosecuting counsel repeated the point[60]:

“… as I reminded you at the opening, … you must be satisfied beyond a reasonable doubt that any person that you are minded to convict on conspiracy, you have to be satisfied beyond a reasonable doubt that they were in agreement with another person to splash liquid on [PW1] with intent to burn her.”

Accordingly, from the outset and before hearing from any prosecution witness, the jury would have known from the mouth of prosecuting counsel himself that they must be “satisfied beyond reasonable doubt” about the guilt of each applicant, a caution that was repeated in prosecuting counsel’s closing address.

57.In considering our decision on this matter, we further obtained transcripts of the closing speeches of the three defence counsel at trial, which will be included in the appeal bundle.  We noted that each of them also made reference in their addresses to the standard of proof being “beyond reasonable doubt”.  These repeated references from both sides of the Bar table were no doubt the reason the judge made mention of the phrase in her summing‑up to the jury.  But, as she rightly emphasised, the notion of being “satisfied beyond reasonable doubt” was the same as being “sure”, which was a common sense word they would understand.

58.However, we also noted that counsel for A2, in her closing address concerning the standard of proof, went rather further than the others when she declared[61]:

“The standard of proof is beyond reasonable doubt. If there are doubts, even a scintilla of doubt in your mind, then it is your duty to acquit, members of the jury.”

With respect to counsel for A2, who was not of course Mr Marray, the proposition that the jury should acquit if they entertained “even a scintilla of doubt” was a misleading articulation of the standard of proof applicable to a criminal trial, and we think it may well have been this statement that led the judge to make the remark complained of in the summing‑up.  We should remind counsel that they also have a responsibility to avoid loose language and ensure that their submissions are grounded in a proper appreciation of the relevant law.

59.Although we have held that no one would have misunderstood the standard of proof applicable to the prosecution, we should nevertheless say that it is both unwise and unnecessary for judges to say anything more about the standard of proof than that which is conveyed by the plain terms of the specimen direction itself.  If they do, then they run the obvious risk of jeopardising lengthy and expensive trials by careless language or ill‑thought out remarks.  More than 40 years ago, the Court of Appeal of England and Wales in R v Yap Chuan Ching[62] was lamenting the fact that judges were still attempting to define the standard of proof in criminal trials[63]:

“… in most cases … judges would be well advised not to attempt any gloss upon what is meant by “sure” or what is meant by “reasonable doubt”. In the last two decades there have been numerous cases before this Court, some of which have been successful, some of which have not, which have come here because judges have thought it helpful to a jury to comment on what the standard of proof is. Experience in this Court has shown that such comments usually create difficulties.”

In dismissing the appeal, the Court concluded[64]:

“As I said earlier, and I repeat, this is one of a large number of cases which have come before this Court in recent years, raising fine points about the terms in which judges have directed the jury as to the standard of proof. We point out and emphasise that if judges stopped trying to define that which is almost impossible to define there would be fewer appeals. We hope there will not be any more for some considerable time.”

60.We endorse those sentiments.  It is unhelpful to try and define a word like “sure” by reference to mathematical percentages or “certainty”.  A jury will well understand what the word means.  In reality, one is either sure or one is not sure, as the Court in Yeung Kuen Chi & Another itself acknowledged[65].

61.In our judgment, the jury would have been in no doubt, having listened to the summing‑up as a whole, that it was their duty to be sure of the guilt of the applicants.  Although we give leave to appeal on the point, we dismiss the appeal.

62.We shall now proceed to hear the appeals against sentence.  Those will be set down on a date to be fixed.  We should add that we have granted Mr Marray, for A2, leave to file notice of leave to appeal against sentence out of time.

Ms Vinci Lam SADPP, of the Department of Justice, for the Respondent

Mr Victor Lee, instructed by Stevenson, Wong & Co, assigned by the Director of Legal Aid, for the 1^st Applicant

Mr John Marray, instructed by Joseph Leung & Associates, assigned by the Director of Legal Aid, for the 2^nd Applicant

Mr James H M McGowan, instructed by Fu & Cheng, assigned by the Director of Legal Aid, for the 3^rd Applicant