HKSAR v. Leung Ho Man

HCCC 4/2019

[2019] HKCFI 2524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 4 OF 2019

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R U L I N G

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Introduction

1.On 13 September 2019, the court was expecting to deal with the admissibility of the identification evidence to be led by the prosecution in its case against Leung Ho-man on one count of murder.  Quite properly, Mr Donald, on behalf of the prosecution, pointed out that issues of admissibility of evidence should ordinarily be dealt with as part of the trial process and asked for the defendant to be arraigned. He had an ancillary purpose for that application and that was to point out to the defence that, upon arraignment and entry of a not guilty plea, the defendant could not thereafter avail himself of any credit for his offer to plead to the lesser charge of manslaughter made on 7 January 2019.  This was intended as a veiled threat.  The prosecution were suggesting that a) having offered the plea to manslaughter the defendant could not take a point on identification, which was factually inconsistent with that offer, and b) that if they did so, and thereafter, if they were to be found guilty of manslaughter, they could receive no credit for the earlier offer.  But that offer had been refused by the prosecution.  It does not survive such refusal.  It does not tie the hands of the defence.  Indeed, having refused the offer, it is the duty of defence counsel to take any reasonable and credible point which he can in the pursuit of his client’s case.  I see no reason at all why, depending upon the circumstances of the manner in which the defence case is run, that Mr Boyton for the defence, cannot pray in aid that early offer to the credit of the defendant if he were ultimately to plead guilty or to be found guilty of manslaughter.  It is not the fault of the defence that it was refused. 

2.The underlying issue for the prosecution’s request for the indictment to be put, which was procedurally correct, was to complain that, having offered a plea to manslaughter it ill-behoved Mr Boyton to take advantage of the court’s offer to investigate other matters of admissibility which were evident upon the papers and which were raised with the prosecution by the court but not answered to the court’s satisfaction.  It seemed that Mr Donald did indeed wish to tie the hands of the defence even though the offer had been refused and as such was no longer live for argument.  As I have said, it is the duty of defence counsel to represent their client’s interest.  That includes testing the evidence of the prosecution both before and during trial.  Mr Boyton has no choice but to do so as his offer on behalf of his client was refused.  He is entitled, and has a duty, to put the prosecution to proof in those circumstances and thereafter to consider the outcome of any application to test the evidence.  If it comes to pass that such an exercise does not avail the defendant, he is entitled, at any stage of the proceedings, to ask for the indictment to be put again and to plead appropriately in front of the court or, if the jury has been empanelled, before the jury.

3.However, we are getting ahead of ourselves.  Mr Donald asked for the defendant to be arraigned prior to the issue of admissibility of evidence being canvassed.  I make no criticism of that.  Mr Boyton, who had indicated that he might make a section 16(1) Criminal Procedure Ordinance, Cap 221 application prior to arraignment, then had to choose whether to do so prior to arraignment or proceed on substantive submissions as to admissibility.  He chose the latter course.  No doubt, because that course would not afford the prosecution a second bite of the cherry by bringing a fresh indictment which would have been available to them had he made a successful section 16 application.

4.The defendant was arraigned and he pleaded not guilty to murder.  He did not plead guilty to a lesser or alternative offence.

5.After some discussion, the court indicated that it wished to proceed to deal with the issue of identification.  That was the matter that both parties were prepared for and in respect of which the prosecution had been asked to provide video evidence of the two identification parades as well as any available CCTV clips.  This should have been available within the unused material.  At this point, the court adjourned for Mr Boyton to draft grounds of objection and for Mr Donald to arrange witnesses and to provide answers to matters raised by the court which were relevant to the issue of identification.

6.After the adjournment, Mr Donald asked that the indictment be put again.  The court refused that application and asked the prosecution to justify it.  In response, Mr Donald indicated that he believed that the court had come to a view adverse to the prosecution and he now wanted to accept the earlier offer of a plea.  Technically, that offer was no longer extant and I presume a new offer had not been made in writing but that there had been some discussion between counsel. I note that the application did not come from the defence.  In refusing the application at that time, the court made it clear that the court had not “come to a view” but had, in its duty to its function in case management and in the interests of justice, identified issues of admissibility which required addressing before a jury could be empanelled.  Further, there were evidential lacunae which suggested that the prosecution case was at best, incompetently investigated and prepared, or someone had been less than frank with the court. As this was a jury trial, it was for the jury to decide the guilt or innocence of the defendant once the prosecution case was in order and at that moment in time, I took the view it was not in order.  Hence the suggestion by Mr Boyton that a section 16 application might be made.

7.Given that Mr Donald was taken aback at the court’s refusal to allow the indictment to be put again (indeed he suggested that the court had no power to do so), the court allowed both parties to consider the content of any summary of facts which would form the basis of plea.  Having had the benefit of an adjournment, the court can only say that the product of counsel’s discussions did not assist the court and was not, on the face of it, sufficient to found the basis for a plea to involuntary act manslaughter on a joint enterprise basis given the current admissible evidence and the extent of admissions believed to be made. There being no alternative, and in accordance with R v Chung Kam Fai [1993] 1 HKC 42, but to give the parties more time to consider their position, the court adjourned to 14 October which had been the original start date for trial.

8.On return to court on 14 October 2019, the prosecution sought to amend the indictment to add an alternative count of manslaughter and to amend the date, which no one had realised reflected the date of assault and not the date of death.  I have not yet granted that leave to amend.  Out of an abundance of caution, I believe all matters need to be resolved before any further substantive step takes place.

9.That is because, the law of both manslaughter and of joint enterprise is complex.  The court is afforded wide powers of sentencing ranging from a non-custodial sentence to life imprisonment.  A plea entered on this basis must be done properly providing a clear basis upon which the defendant is to be sentenced.  We must not also forget that the family of the deceased are also interested parties in these proceedings.

10.A number of issues arise from this turn of events.  I will start with the difficulties arising from acquiescing in Mr Donald’s application and allowing the indictment to be amended and a further plea taken, because by that stage, the court’s hands are tied.  In HKSAR v Chong Chee-meng CACC 315/2007, with reference inter alia to R v Kerrigan (1993) 14 Cr App R (S) 179, if, after trial (and I add “or plea”) and at the sentencing stage, the defence wish in any way to dispute or expand upon the basis of plea evidenced by the summary of facts, it is trite law that a Newton hearing should be held.  If that were to happen, the court can require the prosecution to establish its version of events to the correct criminal onus and standard of proof.  As at this moment in time, on the admissible evidence I have before me, they could not do so.  It may be that Mr Donald has been lulled into a false sense of security believing that his job is complete once he has obtained a plea and that any argument as to the basis of sentence is for Mr Boyton to raise and make out.  That does tend to be the practice nowadays.  It is not always the case that in a Newton hearing it is for the defence to raise the evidential issue on a balance of probabilities.  In R v Robert John Newton (1983) 77 Cr App R 13, the Lord Chief Justice said that where there has been a guilty plea and there is a conflict between the prosecution and the defence as to the facts, the court has a choice.  It can require a plea of not guilty to be entered and allow the jury to determine the issue; the judge may hear evidence from both parties and come to its own conclusion or the judge can hear submissions of counsel but if the latter course is adopted and there is substantial conflict between the parties, the judge must err on the side of the defence.  Which course is to be adopted is a matter for the court subject of course to hearing both parties upon it.  The judge is not bound by any agreement between counsel and is entitled of her own motion to insist on a Newton hearing[1] (or one of the other options) if the court is concerned about the basis of plea for sentencing purposes.

11.The circumstances before the court today are a prime example of why it is not always the case, as has become the practice, for a Newton hearing to be the only means by which the defence seek to dispute the basis of plea and the court can satisfy itself that it has a proper basis for that plea.  The issue arising here is that it is possible that the evidence which the prosecution could prove to the requisite standard is problematic.  Is there a proper basis before the court upon which the court could find the defendant guilty of involuntary act manslaughter by reason of joint enterprise[2]? At present, on the evidence before the court or on the current Summary of Facts, I think not.

12.If that were insufficient to provide grounds for refusal, at the moment, to allow the indictment to be put once more, I rely upon R v Yorkshire Water Services Ltd [1995] 16 Cr App R (S) 280 in which the court said that where a judge is not prepared to accept a basis of plea already entered, then a Newton hearing must be held under which the degree of blameworthiness of the defendant could be investigated.  Let us for argument’s sake debate this ratio.  It envisages a plea already agreed upon and tendered.  The judge’s hands are tied and the only recourse is a Newton hearing in which the prosecution must prove its case and the defence have an evidential burden to raise any issue it wishes the court to take into consideration.  In R v Beswick [1996] 1 Cr App R (S) 343, where neither the prosecution nor the defence asked for a Newton hearing but where there was a substantial conflict in the court’s eyes, the Court of Appeal stated it is quite clear that the initiative in such a matter must be with the judge, and he cannot proceed to try and resolve that conflict without the benefit of evidence.  On the other hand, in HKSAR v Mohammad Nadim, CACC 172/2009, Lunn J (as he then was) said a judge was entitled to reject implausible or fanciful mitigation without recourse to a Newton hearing.  It must surely follow that a judge is entitled to reject an implausible and unproven prosecution case, but on what basis?  Must it go to trial?  Must the court consider that only after plea and a Newton hearing?  And what if that exercise, within a Newton hearing, indicates that there is wholly insufficient evidence to form the proper legal basis of the plea?  What then?  Given the current state of the papers, this court believes that the proper and fair way forward, subject to hearing counsel on this, is to hear the arguments upon admissibility first.  The prosecution and the court can then take stock of the evidence and will be in a better position to ascertain whether a plea should be accepted and upon what basis.  There is no prejudice to either party in taking this course.  I make it clear, that such an exercise, despite any comments I have made in the debates, is not intended to usurp the function of the jury.  It seeks to ensure that only relevant admissible evidence is placed before the jury which is capable of proving the guilt of the defendant to the requisite standard and on the basis advanced by the prosecution, which I have to say still, at the moment, is not altogether clear on the law.

13.On 9 October 2019, a new Summary of Facts, signed by prosecution counsel, was filed with the court. Within it was an admission unsupported by prosecution evidence that the defendant had punched and kicked the deceased after the assault by Wong Fu-shuen. Para 3 of that Summary outlines a series of events which were, as currently understood by the court, physically impossible to carry out if the witnesses for the prosecution are to be believed as to the position of the victim’s body at the relevant time.  It is also unsupported by the medical evidence, which indicates four small abrasions to the head and just one small abrasion to the back of the chest and three subcutaneous small bruises to the front and back of the chest, which, I might add, are consistent with falling on the table top and onto the floor but not consistent with a direct and prolonged assault by a group of at least five persons one of which is said to be the defendant. Mr Donald maintains that matters not for it is not his own acts for which he stands trial but for the acts of Wong Fu-shuen, the man who actually murdered the deceased.

14.To aggravate the issue further, the prosecution witnesses and the Summary of Facts suggest that the defendant left with the main offenders but there is no CCTV in support.  Yet there is later CCTV which sees him apparently calmly leaving with someone I presume to be his girlfriend, if indeed it is the defendant in the CCTV clips, and I have my doubts.  The prosecution have provided no such clips of the two main assailants as part of a group of five, which the witnesses say left the club together immediately after the assault.  The court had asked for any such evidence on the last occasion and asked again today.  Mr Donald had not been provided at that stage with any such CCTV footage, which I find surprising as the police were able to find footage of the defendant apparently leaving the club.

Murder, manslaughter and joint enterprise

15.This is the conundrum facing the court.  The prosecution ask the court to allow the defendant to plead guilty to manslaughter in the alternative to murder on the basis of “joint enterprise unlawful involuntary act manslaughter”.  That plea is premised upon the fact that the principal offender had already dealt the two killer blows to the head of the victim when he shouted, “Hit him to death!”, at which point in time others, including the defendant who joined in at the attack at that point and punched and kicked the victim for two to three minutes or, as other witnesses say, 20 to 30 seconds; in any event, a very short period of time and we also know with no apparent really serious bodily harm arising.  The cause of death is accepted to be the injury to the brain caused by two blows with a bottle.  Given the position of the victim at this time, wedged between the bench and the table with his head towards the wall and next to another bench, there is no medical evidence to suggest that the kicking and punching to the body of the victim occurred in the manner relied upon in the witness statements or in the manner relied upon in the current Summary of Facts.  Indeed, other than the injuries to the victim’s brain, there were very few injuries to the victim and no wounds of any kind save for the cut to the nose caused when the first bottle was smashed over his head, which was before the participation of the defendant.  There does not, on the papers, appear to be any grievous bodily harm resulting from the actions of the accessories, which in any event, all post-dated, what I will call, “the bottling”.  In other words, there does appear to be a joint enterprise but there does not appear to be any causal link between that current joint enterprise and the injury which caused death, as it pre-dated the joint enterprise.

16.I think it would be helpful to start from first principles and analyse joint enterprise unlawful act involuntary manslaughter as it applies to the facts of this case.

17.It is trite law that there must be a coincidence of actus reus and mens rea of a crime.  On an indictment for murder it must be proved that the defendant, by his own act or unlawful omission caused death in order for him to be guilty as principal.  In every result crime, such as murder or manslaughter, causation is an issue.  This is a question of both fact and law.  Joint enterprise apart, the defendant’s act cannot normally be regarded as the cause of an event if the event would have occurred in the same way had the defendant never participated.  As a starting point, it must be proved that but for the defendant’s conduct, the event would not have occurred[3]. The defendant’s conduct we know need not be the sole or the main cause of death so long as it significantly contributed to his death[4] or was more than negligible or de minimis[5] or, where the victim may already be dying, the act of the defendant accelerated death[6].  There is no issue here but that the bottling caused death.  There can equally be no issue that the other contusions were not really serious bodily harm.  They can be dismissed.

18.The mens rea of course is an intention to kill or cause grievous bodily harm i.e. really serious bodily harm.

19.All unlawful homicides, which are not murder, are manslaughter.  This is further divided into voluntary and involuntary manslaughter.  The distinction between them being the defendant’s intent at the time of the actus reus.  It is voluntary manslaughter where the defendant had the necessary intent but a mitigating circumstance has arisen such as diminished responsibility.  I do not believe either party here submits this is a case of voluntary manslaughter.  Only where there is no intention to kill or cause grievous bodily harm, can it be said to be involuntary manslaughter.  I presume if the prosecution accept a plea on this basis they accept that the defendant did not have the necessary intent for murder or grievous bodily harm. Involuntary act manslaughter is further subdivided into four:

(i)  manslaughter by unlawful and dangerous act;

(ii)  manslaughter by gross negligence;

(iii)  manslaughter by subjective recklessness; and

(iv)  corporate manslaughter.

20.Only manslaughter by unlawful and dangerous act can be relevant to these proceedings.  Any death caused whilst in the course of committing an unlawful and dangerous act is manslaughter.  It requires the intention to do the unlawful act even where the defendant might only have foreseen, if at all, a risk of some minor harm being caused.  But it must cause death.  It can be seen therefore that even if the defendant can be said to have carried out an act which falls to be one which is both unlawful and dangerous, the prosecution still has difficulty with the issue of causation.

21.The defendant cannot be indicted as a principal either for murder or for involuntary manslaughter by reason of an unlawful and dangerous act.

22.How then does joint enterprise assist them in making out their case?  For that we must consider HKSAR v Chan Kam Shing FACC 5/2016 which affirmed the existing law on joint enterprise as set out in Chan Wing Siu v The Queen [1985] AC 168.  The court in Chan Kam Shing considered the relationship between accessorial liability and joint enterprise.  It defined accessorial liability as:

“… one who is present and, by way of actus reus, renders assistance or encouragement to the principal in the commission of the offence[7]. The aider and abettor must provide active assistance or encouragement by words or action.”

whereas it defined joint enterprise as:

“The essence of the joint criminal enterprise principle involves the accomplice’s culpability for the criminal act of another person, of a co-adventurer – not his own act – falling within the agreed scope of the joint enterprise or foreseen as a possible incident thereof[8].”

23.To establish the accessory’s guilt, the prosecution must be able to prove the commission of the principal offence and the accessory’s performance of intentional acts capable of assisting or encouraging that offence, with knowledge of the essential facts constituting the offence and the intention to assist or encourage its commission[9]. In DPP for Northern Ireland v Maxwell [1978] 1 WLR 1350, Lord Scarman said “the guilt of an accessory springs, according to the court’s formulation: “… from the fact that he contemplates the commission of one (or more) of a number of crimes by the principal and he intentionally lends his assistance in order that such a crime will be committed...”  The relevant words here, for the purposes of this case, are “contemplates the commission of one (or more) crimes” and “will be committed”, both presupposing a future event.

24.The rise of joint enterprise came about as a result of cases where there was an evidential or a situational uncertainty e.g. not knowing which of the two defendants struck the fatal blow or where events evolved very differently from that which was envisaged by the defendant.  Neither of these difficulties are present in this case as it is clear on the facts who struck the fatal blows and at what point in time.  The prosecution could have proceeded upon accessorial liability in its simplest form on that basis, although they would still have fallen foul of the chronology of events.  They did not proceed, as currently outlined, on that basis.

25.Why have the prosecution sought to proceed on a joint enterprise basis?  Liability under the doctrine of joint enterprise is not derivative.  It is not dependent upon proving that one person (the principal) committed the main offence and that another (the accomplice) assisted or encouraged its commission.  Liability is independently based upon each defendant’s participation in a joint criminal enterprise with the requisite mental state to constitute the offence relevant to the defendant in question[10]. But participating in a common unlawful enterprise is one in which it must be proved that a crime is “foreseen” as a possible incident of that common unlawful enterprise.  It is forward looking.

26.It may be that the prosecution can ask the jury to infer that the defendant punched and kicked the victim intending death or grievous bodily harm but it still cannot prove a causal link, at present, between that act and intention, to the actual cause of the victim’s death, which pre-dated the common enterprise.  Having embarked upon a criminal enterprise he is of course responsible for the acts of others in carrying out that enterprise but he is not responsible for acts which have already been carried out and before he joined the criminal enterprise.

Mr Richard Donald and Ms Tina Mok, counsel on fiat, for HKSAR

Mr David Boyton, instructed by Au-Yeung, Cheng, Ho & Tin, assigned by the Director of Legal Aid, for the defendant