HKSAR v. Mui Chun Yu, Ricky

CACC 438 /2014

[2020] HKCA 753

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 438 OF 2014

(ON APPEAL FROM HCCC NO 397 OF 2013)

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

Date of Hearing: 2 September 2020

Date of Judgment: 2 September 2020

Date of Reasons for Judgment: 7 September 2020

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R E A S O N S   F O R   J U D G M E N T

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

1.The applicant was indicted with four others for the murder of Tsang Ming-sze (“the deceased”). Subsequently, two of the defendants pleaded guilty to manslaughter and became accomplice witnesses for the prosecution. Shek Ka-kwan (“Shek”), Lai Chun‑man (“Lai”) and the applicant (who was D3 on the amended Indictment^[1]) pleaded not guilty to murder and stood trial in the High Court before Deputy Judge McMahon and a jury. On 10 December 2014, Shek, Lai and the applicant were each unanimously convicted of murder and sentenced to life imprisonment.

2.On 22 December 2014, the applicant filed a Form XI Notice of Application for Leave to Appeal against his conviction (“Form XI Notice”), simply stating that the testimony of the witnesses did not tally with the truth, and “the appeal against conviction, too heavy”.  Meanwhile, Shek and Lai also filed applications for leave to appeal against their convictions.  On 13 October 2016, the applicant filed a Notice of Abandonment; his application for leave to appeal against his conviction was deemed dismissed on the same day^[2].

3.Shek and Lai, however, proceeded with their applications for leave to appeal before the full Court on 17 January 2017.  The Court refused their applications and dismissed their appeals on 27 January 2017^[3].

4.By an affirmation dated 8 May 2017 and a further letter dated 3 May 2019, the applicant sought the leave of the Court to have his act of abandonment treated as a nullity and to re-instate his application for leave to appeal against conviction.

5.After hearing from the applicant, we refused the application to treat his abandonment as a nullity and confirmed that the appeal against conviction would stand.  We indicated that we would give reasons for our decision in due course.  These are our reasons.

Chronology of relevant events

6.The chronology of events leading to this application is instructive.  The original offence was committed on 8 August 2012, more than 8 years ago.  The applicant was arrested in respect of the offence on 16 January 2013[4], more than 7½ years ago.  The subsequent trial took place in the High Court between October and December 2014, with the jury returning unanimous verdicts of guilty against Shek, Lai and the applicant on 10 December 2014.  On 22 December 2014, the applicant lodged his Form XI Notice of his intention to apply for leave to appeal against conviction. 

7.Legal aid was initially granted on 20 May 2015. However, on 2 September 2015, the Court was notified by the Director of Legal Aid that Senior Counsel assigned by the Director had advised that she was unable to advance any grounds of appeal on the applicant’s behalf, and that the applicant had been advised of this development but had “requested that Senior Counsel continue to appear for him at the hearing of his application for leave to appeal so as to assist him and the Court with any matters which may arise, notwithstanding that no grounds of appeal will be filed”.  Accordingly, the applicant’s legal aid certificate remained extant and Senior Counsel was instructed to appear for the applicant at the appeal on that limited basis.

8.Meanwhile, the applicant applied to the Hong Kong Bar Association Free Legal Service Scheme (“the Bar Scheme”) for legal assistance.  However, on 4 August 2016, the Bar Scheme declined to act for the applicant, saying that it agreed with the advice of Senior Counsel assigned by the Director of Legal Aid that there were no grounds of appeal.

9.On 13 October 2016, the applicant filed a Notice of Abandonment of his application for leave to appeal against conviction and his appeal was formally dismissed on the same day.  This was more than 4 years after the commission of the offence.  As a result of the abandonment, the applicant’s legal aid certificate was discharged on 26 October 2016, and Senior Counsel was no longer required to attend the hearing of the appeal.

10.The appeals of Shek and Lai duly went ahead and were heard by this Court, differently constituted[5], on 17 January 2017; with judgment dismissing their appeals being delivered on 27 January 2017.  Although the applicant had originally been party to the appeal of Shek and Lai as the 3^rd applicant, he was no longer part of the proceedings, having abandoned his appeal just over 3 months before the appeal took place.

11.On 8 May 2017, some 7 months after he had abandoned his appeal, and some 3½ months after the appeals of Shek and Lai were dismissed, the applicant wrote to the Court asking to re-instate his appeal. The reasons he gave for abandoning his appeal were that he had been unable to find any grounds of appeal, nor could he find any counsel to represent him. Furthermore, he had just been sentenced and felt helpless and under stress.  He further claimed that he had since found some grounds of appeal, although he did not say what those grounds were.

12.Since the Registrar of Criminal Appeals (“the Registrar”) considered that the applicant had provided no basis by which a Court could treat the abandonment of his appeal as a nullity, the matter was not taken further and no hearing was fixed before the Court.

13.On 3 May 2019, the applicant wrote again to the Court asking to revive his appeal on the basis that he was a chronic user of psychiatric medication for a diagnosed mental illness, which had caused him to be confused and to withdraw his appeal.  As a result of this letter, the Registrar wrote to the applicant on 27 May 2019, asking him to submit any relevant medical evidence by way of affidavit in order to show that his abandonment had not been the result of a deliberate and informed decision. 

14.On 16 January 2020, the applicant filed an affirmation attaching a letter/report from Dr Brian Or Parr-ning of the Department of Psychiatry at the Pamela Youde Nethersole Eastern Hospital in Chai Wan, Hong Kong, dated 24 December 2019.  In that letter/report, Dr Or confirmed that the applicant had been known to the Substance Abuse Clinic of the Hospital since 2012.  He was described as having a history of polysubstance abuse since his teenage years, and also being a heavy drinker.  He had exhibited stimulant and alcohol dependence and had been referred to the clinic for psychotic symptoms after his use of substances, where he was diagnosed with Alcohol Dependence Syndrome, Stimulant Dependence Syndrome and Substance-Induced Psychotic Disorder.  Dr Or explained that the applicant had been prescribed pharmacological treatment and had regularly attended follow-up sessions at the clinic.  He concluded his letter/report as follows:

“His condition gradually improved with treatment and his mental state has been stable in recent years without psychotic symptoms.

Mr Mui was last assessed by the undersigned on 25^th October 2019.  He was mentally stable with euthymic mood and coherent and relevant speech.  He had no active psychotic features.”

Three questions

15.Having set out this chronology for the benefit of the applicant at the hearing of this application, we asked him three questions:

(i)  Why did he make no mention of this psychiatric illness and its effects at the trial or, indeed, at any stage up until 3 May 2019, which was nearly 7 years after the commission of the offence?

(ii)  Why did he make no mention of this psychiatric illness and its effects when he first sought to revive his appeal on 8 May 2017, choosing to mention it for the first time some 2 years later in his letter of 3 May 2019?

(iii)  Why did he choose to abandon his appeal when he must have known Shek and Lai were continuing with the appeal of which he had originally been a part, notwithstanding that he knew his interests would be safeguarded by Senior Counsel, on the instructions of the Director of Legal Aid, so as to assist him and the Court if it became necessary.

16.In endeavouring to answer these questions, the applicant initially sought to blame his trial counsel, a highly experienced criminal practitioner, for not raising his mental illness at trial, even though the applicant chose not to give evidence, preferring to concentrate his attack on the accomplice witnesses who had testified against him so as to secure a complete acquittal.  Be that as it may, he told us that his real reason for abandoning his appeal years later, was that he could not find grounds of appeal, or a counsel to articulate them.  When we asked him if there was any other reason for choosing to abandon his appeal, he said there was none.

17.There is no basis whatsoever for us to conclude that the applicant’s decision to abandon his appeal “was not the result of a deliberate and informed decision; in other words that the mind of the applicant did not go with his act of abandonment”[6]. First, he knew clearly that Shek and Lai were appealing because he was originally part of the appeal himself and, while they continued to pursue their appeals, the applicant decided to abandon his.  However, before so deciding, he had filed a Form XI Notice, obtained legal aid and advice from Senior Counsel, sought representation from the Bar Scheme and asked the Director of Legal Aid for Senior Counsel to continue to represent his interests at the appeal, even though no grounds of appeal had been filed.

18.Secondly, such mental problems as the applicant may have had played no part in the trial and were not even mentioned to any court until nearly 7 years after the offence, some 6½ years after his arrest and some 4½ years after the conclusion of the trial.  The critical time, of course, was the date of the abandonment of his appeal on 13 October 2016.  No mention of his mental history was made until some 2½ years after that event.  By the 13 October 2016, the applicant would have been in custody for 3 years and 9 months and it can reasonably be supposed that he did not have access to drugs or alcohol during that time.  It therefore came as no surprise that Dr Or would comment that the applicant’s mental state had been stable in recent years.  The applicant’s ability to file his Form XI Notice, his approaching the Bar Scheme when he learned of Senior Counsel’s opinion and his giving of instructions to the Legal Aid Department to continue to assist him at the appeal during that period stand testament to his ability to understand fully what he was doing when he abandoned his appeal.

19.Thirdly, it is quite clear from his answers to this Court that the real, and only, reason he abandoned his appeal was because he did not think he had any grounds to appeal.  We were not remotely persuaded that his mental illness, such as it was in October 2016, or the medication, if any, that he may have been taking at the time, had any part to play in his decision to abandon his appeal.

20.We have, of course, looked at the appeal papers, including the summing-up and the relevant evidence.  Indeed, two members of the Court were already completely familiar with the appeals of Shek and Lai and the issues which were raised on appeal, having been part of the Court which heard that case.  We can see no possible grounds of appeal against conviction which the applicant could advance, let alone reasonably advance.  Indeed, to this day, the applicant has not articulated any grounds at all.

21.The facts of this matter are fully set out between paragraphs 6 and 16 of the judgment of the Court in the appeals of Shek and Lai.  It is quite clear that the jury must have accepted the evidence of the accomplice witnesses, which established that the applicant was one of the prime movers in the violence that was inflicted on the deceased.  It was he who was one of the first to assault the deceased.  It was he who told the group that the deceased had to be killed, otherwise he would go to the police and cause trouble.  And it was he who finally and repeatedly stamped on the deceased’s head and chest and, together with Shek, threw him into the sea, when, according to one of the accomplices, the deceased was at the time still conscious.  The Court observed that when they did that, “the top of the seawall was about two metres above the sea level and was a sheer drop.  That was highly relevant to Shek’s intention”[7]. The same must apply to the applicant, as if his statement that the deceased had to be killed and his repeated stamping on the deceased’s head and chest were not themselves enough to reveal his intention to kill.  It was also the applicant who instructed that the place be cleaned up and cigarette butts and beer cans removed, lest evidence be left behind.

22.As a precaution, we asked Mr Cheung, for the respondent, for whose written submissions we are grateful, if there was anything which he felt he should bring to our attention concerning the propriety of the conviction.  He responded that there was nothing.

23.In these circumstances, we refused the application to treat the applicant’s abandonment of his appeal against conviction as a nullity.  Accordingly, his appeal stands dismissed.

Mr Ivan Cheung SPP, of the Department of Justice, for the Respondent

The Applicant appeared in person