HKSAR v. Shum Man Fai

CACC 338/2019

[2020] HKCA 232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 338 OF 2019

(ON APPEAL FROM HCCC NO 87 OF 2019)

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BETWEEN

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Before:  Hon Macrae VP in Court

Date of Hearing:  9 April 2020

Date of Decision:  9 April 2020

Date of Reasons for Decision:  22 April 2020

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REASONS FOR DECISION

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1.On 6 November 2019, the applicant was convicted before Poon J and a jury of manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Person Ordinance, Cap 212. On the same day he was sentenced to 3 years’ imprisonment. The applicant applied by counsel for bail pending appeal both on the merits and on the time basis, his earliest date of discharge being 30 June 2021.

2.On 9 April 2020, I granted the applicant bail pending his appeal on terms, saying that I would hand down brief reasons for my decision in due course.  These are my reasons.

3.It is not necessary to go into the facts too deeply at this stage.  The deceased was the boyfriend of PW1, while the applicant was her ex-boyfriend.  The applicant and PW1 had been for a walk and had had dinner together in Kowloon City in the evening of 16 July 2018. Unfortunately, the deceased, who was driving in the area, became unhappy when he saw them together.  As the applicant and PW1 parted company and walked towards their respective vehicles, the deceased alighted from his car, rushed at PW1 and, according to the various versions of witnesses, slapped or punched her face, pushed or squeezed her neck and threw her against the car.  She called out for help.  The applicant, who had already got into his car, thereupon alighted from his vehicle.  The deceased angrily rushed at the applicant and there was physical contact between the two men, with one eye-witness describing a “fight”, and another describing the applicant as raising his hands in a defensive gesture.  This was referred to at trial as ‘episode 1’.

4.There then ensued an argument, followed by further physical contact, and it is here, in what was described as ‘episode 2’, that the prosecution alleged a violent over-reaction by the applicant, who punched the deceased causing him to fall and hit his head on an object on the pavement, from which he died a week later.  The defence, by contrast, was that the deceased was at all times the aggressor and had met his death either as a result of an accident or when the applicant was defending himself.  A forensic pathologist, Dr Chiao, concluded that the cause of death was a head injury which “could have satisfactorily been explained by a single fall with (the deceased’s) right back of head bumping against the ground”[1].  Some, but not all, of the unfolding drama was caught on CCTV.

5.Given that the deceased was the aggressor in ‘episode 1’ and, it would seem, from the relevant CCTV footage which I have viewed, in ‘episode 2’ as well, the accounts of the eye-witnesses and of the applicant, who elected to give evidence, were vital matters for the jury to assess.  In a case such as this, where the deceased could not give evidence and the evidence of eye-witnesses varied considerably in some respects, the account of the applicant was obviously a prominent feature of the evidence.  It was vital, therefore, that the jury received adequate directions as to how to approach the applicant’s evidence, given that it was perfectly possible for them to believe all, or some or none of his account, but mindful that he was not required to prove anything.

6.Mr Percy, on behalf of the applicant has identified two grounds of appeal, although for reasons which I touch on later, the two grounds seem to me to be linked.  First, it is complained that the judge failed to give a proper direction to the jury as to how it should approach the evidence of the defence; secondly, the judge failed to give a clear direction that a finding of guilt did not depend upon the mere preference of one case or version over the other. 

7.In respect of the first complaint, the standard direction to be given in any case, in accordance with Direction 2 of the Specimen Directions in Jury Trials promulgated by the Hong Kong Judicial Institute, is as follows:

“The defence put forward in this case is that (e.g. the defendant acted in lawful self-defence). It is not for the defendant to prove that (he acted in lawful self-defence). On the contrary, it is for the prosecution to prove that (he did not). Of course, if the account given by the defendant is true, then he must be acquitted, but he must also be acquitted if that account may be true.” (Emphasis supplied)

8.The direction the judge in fact gave, when explaining the burden and standard of proof at the commencement of her summing-up, was, however, in these terms:

“Members of the jury, the defence put forward in this case is the defendant did not cause the death of the deceased. It was an unfortunate accident and that he was acting in self-defence. And, as I say, members of the jury, it is not for the defendant to prove his innocence, it is for the prosecution to prove his guilt.”

It will immediately be seen that she did not include the sentence in italics from the Standard Direction, eponymously referred to as the Liberato direction from the Australian case of that name[2], which has been approved and applied in this jurisdiction at least since the decision of the Court of Final Appeal in Sze Kwan Lung & Others v HKSAR[3]and, subsequently, Jim Fai v HKSAR[4].

9.Mr Lai, on behalf of the respondent, however, counters that the judge did subsequently tell the jury that “if you have any doubt at all of his guilt, you must give the benefit of that doubt to the defendant”[5].  Moreover, she also later directed the jury to consider whether the applicant’s evidence of an intervening act, independent of anything he might have done, was “true or may be true”[6]; if the defendant honestly believed “or may have honestly believed that he was being attacked”[7]; and if the defendant’s “act or acts were carried out in response to the actual attack, or may have been”, whether his response was reasonable.  He says the summing-up should be looked at as a whole to see if the message was correctly conveyed to the jury.

10.However, in accepting that the summing-up must be looked at as a whole, Mr Percy submits that there was a further important omission in respect of Standard Direction 48.  What the judge should have said, in conformity with the Specimen Direction dealing with self-defence, was:

“You should also bear in mind that a person who is defending himself cannot be expected in the heat of the moment to weigh precisely the exact amount of defensive action which is necessary. The more serious the attack [or threatened attack] upon him the more difficult his situation will be. If, in your judgment the defendant believed or may have honestly believed that he had to defend himself and he did no more than what he honestly and instinctively thought was necessary to do so, that would be very strong evidence that the amount of force used by him was unreasonable.” (Emphasis supplied)

However, the words in italics were again missing from the judge’s actual direction[8]. Mr Percy argues that that is doubly unfortunate because the missing part of the direction deals, as does the missing part of Specimen Direction 2, with what the defendant may have believed.

11.The question for the Court of Appeal in due course will be, therefore, whether, looking at the summing-up as a whole, notwithstanding what the judge has missed out of the relevant Specimen Directions, it was nevertheless sufficiently brought home to the jury, in accordance with Liberato, that[9]:

“…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”.

Or, to put it bluntly, whether the jury were told in clear enough terms that they must acquit the applicant if what he said may or might be true.

12.Mr Percy’s other complaint about the judge’s summing-up is that the judge did not make clear to the jury that their findings did not depend on a mere preference of one version or case against the other.  The judge had told the jury, for example, that in assessing the evidence of the witnesses, they were to “give them the same equal fair and objective treatment”[10].   Whilst the direction may in itself be unexceptional, it is said that it reinforces the complaint that the jury were never properly told that they did not have to believe the applicant to the same standard as they did the prosecution evidence.

13.It seems to me that this argument is to a large extent derived from the first ground advanced and illustrates the importance of the Liberato direction.  Mr Percy relies upon Stock VP’s explanation in HKSAR v Mosen[11]:

“…the message must clearly be conveyed that a finding of guilt does not depend upon the mere preference of one case against the other and that even if the jury does not positively believe the defendant’s evidence, nonetheless that evidence is still operative as an analytical factor if the jury concludes that it might be true”.

14.In my judgment, these grounds of appeal are reasonably arguable, and I would be prepared to grant leave to appeal on them. Whether “reasonable arguability” is sufficient for a grant of bail pending appeal as distinct from a grant of leave to appeal, however, must also depend on the time factor.  Just because an appeal against conviction may be reasonably arguable does not mean an applicant should be granted bail pending appeal, particularly where his sentence is long, any more than where an appeal is not reasonably arguable, an applicant should be granted bail pending appeal because his sentence is short.

15.The applicant received a sentence of 3 years’ imprisonment after trial, for which he is due for release on 30 June 2021.  Reference was made by the learned judge in sentencing the applicant to the case of R v Lo Bing Sun[12], on which Mr Lai also relies, where the Court of Appeal upheld the same sentence for what was described as “one-punch manslaughter”.

16.Release in 14 months’ time would not necessarily by itself satisfy the requirements of the time factor in respect of a sentence in which an applicant is only expected to serve a period of 24 months’ imprisonment with remission.  However, when one looks at the facts of Lo Bing Sun, it seems to me reasonably arguable that it was a worse case on its facts than the present.  The applicant there had a bad history of violence and was in breach of a suspended sentence.  Moreover, in the case before me, the applicant was not the initial aggressor.

17.I consider it reasonably arguable, therefore, that the sentence should have been less than 3 years’ imprisonment.  If so, then the actual date of his discharge could be sometime later this year, in which case the time factor becomes a more cogent factor in this application.  I should also say that I would be prepared to grant leave to appeal in respect of sentence as well.

18.The time factor, in conjunction with the merits of the appeal against both conviction and sentence, led me to the conclusion that this is a proper case for the otherwise exceptional course of granting bail pending appeal.

19.Accordingly, I admitted the applicant to bail on the following terms, in addition to the requirement under Rule 49(1) of the Criminal Appeal Rules, Cap 221A which is applicable to all bailed applicants, namely that he “be ordered to be, and shall be, personally present at the hearing of his appeal and at the final determination thereof”:

(i)  The applicant is to provide cash bail in the sum of HK$100,000;

(ii)  The applicant’s sister is to stand surety in the sum of HK$50,000 cash;

(iii)  The applicant is to reside with his father at the address provided to the court, and is to notify the court 24 hours prior to any intended change of address for its approval;

(iv)  The applicant should surrender his travel documents to the court prior to his release from custody;

(v)  The applicant must not contact either directly or indirectly any of the witnesses for the prosecution at trial;

(vi)  The applicant must abstain for committing any further offences whilst on bail.

I should add that I have personally approved the applicant’s sister as his surety, having heard from her on oath before me, and upon her undertaking to ensure that the applicant attends his appeal, failing which she shall forfeit the amount of her surety.

20.It will be clear from my judgment on this application that I consider there are reasonably arguable grounds of appeal against both conviction and sentence.  Accordingly, and in the interests of streamlining appeal procedures during this unparalleled time for the courts, I shall also formally grant the applicant leave to appeal against both conviction and sentence on the grounds advanced before me, which should be pleaded in a new set of Perfected Grounds of Appeal against Conviction and Sentence.  I have already ordered that those grounds be filed by counsel with the court by 30 April 2020.

21.The appeal therefore may be fixed for hearing, after which orders will be made for the filing of submissions.  The parties must ensure that the Court is properly seized of all evidence and material (including CCTV footage) relevant to a proper determination of the appeal.

Mr Derek Lai SADPP, of the Department of Justice, for the Respondent

Mr Duncan Percy, instructed by Francis Kong & Co, assigned by the Director of Legal Aid, for the Applicant