HKSAR v. Ngan Wing Chau

Case No.CACC 346/2018[2020] HKCA 1050[2021] 1 HKLRD 488

Court

Court of Appeal

Date21 Dec 2020

Judge—

Case Document

100%Judiciary

CACC 346 /2018

[2020] HKCA 1050

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 346 OF 2018

(ON APPEAL FROM HCCC NO 105 OF 2017)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Ngan Wing Chau (顏永周)	Applicant

________________________

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

Date of Hearing: 1 December 2020

Date of Judgment: 21 December 2020

________________________

J U D G M E N T

________________________

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

A. Introduction

1.The applicant stood trial in the High Court before Li J (“the judge”) and a jury on two counts: Murder, contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212 (Count 1); and Preventing the lawful burial of a body, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221 (Count 2). At the conclusion of the trial, on 7 November 2018, the applicant was convicted on both counts by majority verdicts: 5 to 2 in respect of Count 1; and 6 to 1 in respect of Count 2.

2.By a Notice of Application for leave to appeal filed on 26 November 2018, the applicant sought to appeal against his conviction only. On 1 December 2020, we reserved our judgment in this matter, indicating that we would hand it down in due course. Accordingly, this is our judgment.

B. The prosecution case

3.It was not disputed at trial that the applicant was an illegal immigrant who had been living in Hong Kong for several years, using a forged Identity card bearing the name of Chan Ming^{^[1]} and working as a meat cutter in a frozen meat company^{^[2]}. Madam Chan Sau Wa (“the deceased”) was the elder sister of the applicant’s former wife’s mother, and was referred to by him in the proceedings as his “aunt” or “aunty”.

4.The applicant lived in Room A, 2^nd floor, Rear Block, Iskra Building, at 132-134 Cheung Sha Wan Road, Sham Shui Po in Kowloon^{^[3]} (“Room A”). Situated on the ground floor of 132-134 Cheung Sha Wan Road was a branch of the Bank of East Asia, which had installed CCTV cameras outside the bank^{^[4]}, one of which recorded the activities on the pavement outside what was the only entrance to the Iskra building^{^[5]}.

5.At 7:34 pm on 1 May 2016, the deceased exited Shek Kip Mei MTR Station, which was the last movement and transaction ever recorded on her Octopus card[6]. CCTV evidence then depicted a person, whom the prosecution said was the deceased, entering the Iskra building at 7:48 pm on 1 May 2016; after which she was never seen again^{^[7]}. The CCTV evidence also showed a male (later identified as the applicant) entering the building at about 7:14 pm on the same day, and leaving the building at about 9:48 pm, carrying a large black plastic rubbish bag over his shoulder; subsequently leaving the building again at about 11:29 pm on 1 May and about 12:23 am on 2 May and entering the building at about 1:13 am on 2 May, on each occasion carrying a suitcase; and finally at about 2:32 am on 2 May 2016, leaving the building carrying two plastic bags and a hammer^{^[8]}. The applicant eventually returned to the building at about 4 am on 2 May 2016[9]. The applicant was positively identified on each of these occasions from screenshots and from the CCTV footage by Ngan Chun‑shing (“PW3”), the applicant’s employer; and by Yang Xuemei (“PW4”), who regularly played mah-jong with the applicant. The deceased was reported missing by her son on 3 May 2016.

6.In the early hours of 14 May 2016, police officers raided the Iskra building and broke into Room A. The applicant was then seen climbing along an iron cage outside Room A on the 2^nd floor and jumping down onto the platform in the light-well on the 1^st floor. The applicant was subdued after a struggle and duly arrested for obstructing a public officer in the execution of his duty; and, shortly afterwards, for being an illegal immigrant. He was not at that stage arrested for murder.

7.Three video recorded interviews were subsequently taken from him, the first at Sham Shui Po Police Station, the remaining two at Kowloon West Police Headquarters, at the following dates and times:

(a) On 14 May, from 4:52 to 5:50 pm (the 1^st video recorded interview (“VRI”), which was concerned with his status as an illegal immigrant);

(b) On 15 May, from 3:53 to 4:34 pm (the 2^nd VRI, which involved enquiries about the deceased as a missing person); and

(c) On 15 May, from 5:14 to 5:37 pm (the 3^rd VRI, which concerned the applicant’s possession of a forged Identity Card).

8.On 15 May 2016, at about 8 pm, whilst at Kowloon West Police Headquarters, the applicant suddenly said to D Sgt 51200, “Ah Sir, it was ‘Ah Hoi’ who killed Aunt”. He was immediately cautioned, after which he responded, “Ah Sir, it has nothing to do with me”. Following this unexpected outburst, four further video recorded interviews were taken from the applicant:

(a) On 15 May, from 8:49 to 9:30 pm (the 4^th VRI, which concerned the alleged murder);

(b) On 15 May, from 10:01 to 10:13 pm (the 5^th VRI, which also concerned the alleged murder);

(c) On 23 May, from 4:02 to 4:27 pm (the 6^th VRI, which again dealt with the applicant’s forged Identity Card); and

(d) On 24 May 2016, from 2:18 to 4:34 pm (the 7^th VRI, which again concerned the alleged murder).

9.At trial, it was the applicant’s evidence that he had told lies in his 4^th VRI, 5^th VRI and 7^th VRI respectively^{^[10]}, including making up a story about someone called Ah Hoi, whose name was also invented, claiming that the police had asked him to blame someone else in order to exonerate himself. Consequently, prosecuting counsel portrayed the applicant as a “pathological liar”^{^[11]}; and submitted that Ah Hoi was a “complete figment of his imagination”^{^[12]}, a “complete fiction”^{^[13]} or a “complete fabrication”^{^[14]}.

10.It was the allegation of the prosecution that the applicant had unlawfully killed the deceased inside Room A sometime between 7:48 and 9:48 pm on 1 May 2016, although the prosecution did not point to any motive for the killing^{^[15]}. Insofar as the forensic evidence was concerned, there was no dispute that the blood of the deceased was found in Room A^{^[16]}; or that a bloodstain found on the applicant’s left shoe contained a mixture of DNA from both himself and the deceased^{^[17]}. Dr Lin Sze-wah, a forensic scientist, testified for the prosecution that she was “90% confident” that there was no blood from any third person in Room A^{^[18]}.

11.In respect of Count 2, it was an admitted fact that, on 1 May 2016 at 12:27 am, the applicant had left a voice message asking a person called Lam for the location of a refuse dump, because he could not remember where it was^{^[19]}; thereby lending support to the suggestion that he had planned to dump the deceased’s body after she had been killed^{^[20]}. According to the prosecution, he acted out his plan and disposed of the deceased’s body parts during the night of 1 May 2016 and early the following morning.

C. The defence case

12.The applicant elected to give evidence at trial. He testified that as a meat cutter by occupation, he would often sustain injuries to his hands and, accordingly, his blood may have been deposited on his shoe when putting them on^{^[21]}, but “[a]s to why and when (the deceased’s) blood was left there, I completely had no idea”[22]. He claimed that many people had access to Room A, including his former mother-in-law (PW2), as well four clansmen, all of whom were illegal immigrants. He said he had placed a door key on the doorframe above the door^{^[23]} for them to use, and there were some occasions when the deceased herself had gained entry into Room A using the key in order to collect some frozen meat which he had bought for her^{^[24]}. He maintained that he had last met the deceased in March 2016^{^[25]}.

13.The applicant testified that on the night of 1 May 2016, he had worked until 7 pm. Since he felt very tired, he went home, showered and slept until 1 am. He then went out for a night snack, followed by a two-hour massage. He bought some cigarettes from a 7‑Eleven store on his way home and slept until the following evening. He then left the flat again to play mah-jong^{^[26]}.

14.Contrary to the prosecution allegation that he sustained injury as a result of jumping from Room A on the 2^nd floor into the light-well when trying to escape^{^[27]}, which was followed by a “strong”[28] struggle between the applicant and police officers, the defence contended that the applicant’s injuries were in fact caused by police officers between the taking of the 3^rd VRI and the 4^th VRI; as a result of which he was sent to Queen Elizabeth Hospital for treatment on the morning of 16 May, and hospitalised until 20 May 2016^{^[29]}. In evidence, the applicant stressed that there was no need for him to jump down from Room A as there were water pipes between the 1^st and 2^nd floors of the building for him to climb down^{^[30]}.

15.In his closing speech, Mr Steve Chui, counsel then acting for the applicant at trial, accepted that the applicant had told lies in some of his video recorded interviews. Nevertheless, he contended that the jury still had to consider whether or not the real murderer might have been Ah Hoi. He addressed the jury as follows:

“But is there a possibility having regard to the whole of the circumstances and the whole of the evidence in this case, is it possible it was really Ah Hoi who had killed Chan Sau-wa? Is there a possibility that it was in fact really Ah Hoi, according to the defendant in the VRI, who have killed aunty and the defendant was only told and instructed by Ah Hoi to clean up the mess and dispose of the bloodstained cloth or whatever, but defendant did not do it, to kill her, but it was Ah Hoi? Was it possible? It was true, or may possibly be true as what was said by the defendant to you and, I mean to the police in the VRI?

As I said, as to the truth, it’s your jurisdiction which part in the VRI you took it as is true or may possibly be true. I'm just suggesting if at the end of the day you thought this part what the defendant had told the police in the fourth VRI that it was Ah Hoi who had killed aunty was true or may possibly be true, then you must find the defendant not guilty of murder, whether it was done by Ah Hoi.”

16.Mr Chui also invited the jury to consider the possibility that the deceased had been murdered by an unidentified man who had appeared outside the entrance of the building at about 4:13 pm, and re-appeared at about 7:48 pm on 1 May 2016^{^[31]}, according to the CCTV evidence. He postulated this alternative:^{^[32]}

“The second scenario is, is it possible the true culprit was that person in dark clothing as appeared on 1 May outside the Iskra Building? Was it a mere coincidence that person entered the building with Chan Sau-wa? If this person had gone into this building at about 1617 hours into the building then had re-emerged at the entrance of this building some three-and-a-half hours later, where did he go in between for these three hours? He must have a place to stay, right, in the building? He may be a tenant of this building, whatever unit, and he re-emerged some three-and-a-half hours later, separate entrance and this time this same moment Chan Sau-wa entered the building with him.

Where was she taken to? Where did she go? We don’t know, but was it possible the real culprit was the person in dark clothing, who sometime later had made use of room A when the defendant was not there, had caused her injury or even killed her and cleaned up the room A and the mess, but not completely, cleaning up and thus leaving some bloodstains behind and the defendant was the scapegoat of the whole thing, an innocent person?”

17.For the purpose of addressing the argument in Ground 1, it should be noted that, immediately after defence counsel had finished his closing address, and in the absence of the jury, the judge queried Mr Chui’s suggestions about the two other possible murderers^{^[33]}:

“COURT: Mr Chui, just one comment about what you said just now. You said there are two possibilities who the killer was. First, it is possible that Ah Hoi killed auntie. It is not possible. The defendant said in box that...

MR CHUI: Yes.

COURT: ...that was a lie.

MR CHUI: Yes.

COURT: And you are now contradicting him.

MR CHUI: No. If the jury didn’t accept what defendant said, that was a lie then.

COURT: You won’t be...

MR CHUI: I know.

COURT: ...persuading them not to take his evidence, right?

MR CHUI: Well, as I said...

COURT: That can’t be right.

MR CHUI: ...maybe you can go over it, my Lord...

COURT: And...

MR CHUI: ...tomorrow morning.

COURT: And the second point is, you asked the jury to draw an inference or somehow the dark clothing person might be the killer. Well, that seems very far-fetched.

MR CHUI: Absolutely.

COURT: Given the bloodstain in Room A...

MR CHUI: Yes.

COURT: ...there seems to be no evidential basis.

MR CHUI: I appreciate it, my Lord.

COURT: Right? Yes. I’ll tell jury...

MR CHUI: Yes.”

D. The judge’s summing-up

18.The summing-up can be divided into four sections. The first part was delivered in the morning of 6 November 2018 (including a 30‑minute mid-morning break)^{^[34]}; the second part commenced at 2:31 pm and ran until 3:22 pm^{^[35]}; the third part continued from 3:34 to 5:04 pm^{^[36]}; and the final part was delivered on 7 November 2018 between 10:13 and 10:46 am^{^[37]}.

19.For present purposes, there is no substantive complaint made against the first part of the summing-up, which encompassed the judge’s directions on the relevant legal principles applicable to the case, as well as a detailed summary of the prosecution evidence.

20.In the second part of his summing-up, the judge summarised the defence case including, inter alia, the alleged misconduct of the police towards the applicant^{^[38]}. For the purpose of addressing the arguments in Grounds 4 and 5, we should recite the impugned directions in respect of Ground 4[39]:

“In the morning of 16 May, he was dizzy and could not walk. He was sent to Queen Elizabeth Hospital for treatment. He sustained injuries at his chest and left thigh. He was hospitalised until 20 May. There is a medical report by Dr Choi. Now, members of the jury, at this moment I would like you to bring out the medical report, Exhibit 266. I will not go through all the injuries because they have been referred by counsel to you, but just look at the second paragraph. I read it out now:

“He sustained injury to chest wall and left leg in an alleged assault by unknown persons. The details including the date and time of the injury was not disclosed.”

It is a matter for you, members of the jury, how you make use of this paragraph, but it was so recorded there.”

And, in respect of Ground 5[40]:

“I do not want to repeat the allegation from the defendant. It must be fresh in your mind when I summarise his evidence. Now, in this regard, members of the jury, you must carefully consider the evidence of the Sergeant 6794, 2551 and also the defendant’s evidence. It is for you to decide who told the truth. You should watch or you should be careful about the conduct of the defendant during the fourth and the fifth video interviews. Did he appear to have been assaulted shortly before this interview as he described? How could you do it? You watch the fourth and the fifth video interviews in detail. You watch the video. You judge for yourself whether the defendant appeared to be a person being assaulted as he described; painful beyond description. It is a matter for you, right?”

21.In the third part of the summing-up, the judge made certain observations about the existence of Ah Hoi. He told the jury that^{^[41]}:

“Now, first thing; if Ah Hoi was a fictitious person, certainly what the defendant said about Ah Hoi and Chan Sau-wa would not be true. Right? And secondly, you read the video interview, the transcript. The false stories are repeated by the defendant in such detail, including the relationship between Ah Hoi and auntie. That is one piece of evidence you should consider when assessing the state of mind of the defendant during the fourth interview because the defendant said he was in fear and in great pain. Right? And despite all this, he invented such a detail, and this is relevant when you consider the credibility of the defendant.”

22.In respect of the lies told by the applicant, having given^{^[42]} (and repeated^{^[43]}) a lies direction to the jury, the judge said^{^[44]}:

“Now, I have told you the defendant said he covered up all this because of his II or illegal immigrant status. You must consider that carefully. Right. And you must think whether this amounts to an innocent reason to lie.”

23.The judge went on to give the jury a direction concerning the applicant’s escape or flight^{^[45]}, telling them that the legal principles applicable were similar to those applicable to lies.

24.In the final part of his summing-up, the judge chose to “recap some important concepts or legal principles”[46] before continuing his summing-up. He also pointed to some of the inconsistencies between the applicant’s evidence in court and his account in his video recorded interviews. Of these, he said^{^[47]}:

“Now, lastly, there are some inconsistencies between the evidence of the defendant in court and his answers in the voluntary video interviews, right? I summarise them here. In court, defendant said there were four clansmen staying from time to time in Room A and Room A was regarded as a public room, right? This was never mentioned in any of the first, second, third and the sixth VRI. About the key on the doorframe, the defendant said everybody knew it, but in the first VRI he said only the girlfriend and Chen Xiuzhu^{^[48]} knew about this, and he further said friends and relatives had no key to Room A. As to who would visit Room A, the defendant said in first VRI that no one visited Room A except Chen Xiuzhu, Chan Sau-wa and the girlfriend.

About his relationship with Chan Sau-wa, defendant said in court it is buying of chicken wing and ribs for Chan Sau-wa, but he never mentioned all this in the video-recorded interview. Defendant mentioned about his girlfriend, Ah Ching, in the first video-recorded interview, but later he said this person was fictitious, in court. About his forged identity card, defendant said in the sixth VRI, video-recorded interview, that he threw away the forged ID card after he got employment, but he has given you an explanation in court that was recorded in paragraph38(i) of the Admitted Facts, the voice message, and he explained that he suspected the forged ID card was lost at the refuse collection point.

Now, all these inconsistencies are relevant when you consider the verdict in this case and I point them out to you so that you may take a closer look at all evidence and decide for yourself. Now, I repeat again, what I said is not the whole of the matter or the evidence and it is your job to read all the documents and consider all the evidence you have and decide the guilt of the defendant. Right. You are not bound by what I said, so you have the duty to decide for your own among the seven of you.”

E. The grounds of appeal

25.In her Perfected Grounds of Appeal against Conviction, dated 20 February 2020, Ms Draycott SC, who appeared for the applicant here but not below, particularised no less than eight grounds of appeal against conviction.

E.1. Ground 1 – The fictitious man and the unidentified man from the CCTV footage

26.By Ground 1, Ms Draycott argued that the judge’s directions as to whether Ah Hoi and/or the unidentified person might be the killer greatly diminished the defence case that someone else had killed the deceased in Room A. It was submitted that the judge should not have usurped the function of the jury by withdrawing such a critical matter from their consideration.

27.Whilst accepting that the judge’s directions regarding Ah Hoi defied the general principle that the applicant’s out-of-court statements, which were inconsistent with his evidence in court, should nevertheless be left for the consideration of the jury, Mr Leung SC, DPP, with him Mr Kwong SPP, submitted there was no room for the jury to accept that the applicant’s assertions about Ah Hoi, unsupported by his evidence, were or might be true. Accordingly, Mr Leung invited this Court to uphold the conviction by applying the proviso to section 83(1) of the Criminal Procedure Ordinance. He submitted that there was no evidential basis to support the assertion that an unidentified man had murdered the deceased in Room A in the applicant’s absence because, according to the applicant’s own evidence, he had returned home shortly after 7 pm and remained there until shortly after 1 am, the implication being that somebody else must have entered his flat, murdered his aunt, cleaned up the scene of the crime and disposed of the body, while he remained asleep throughout.

E.2. Grounds 2 and 3 – The applicant’s lies; and his flight from arrest

28.Grounds 2 and 3 are inter-related because they both concern the applicant’s conduct during and after the raid carried out by the police on 13 May 2016. By Ground 2, Ms Draycott argued that, in view of the applicant’s illegal immigrant status, there was an obvious and plausible, innocent explanation for him to lie to the police on matters relating to his Identity Card, his job and the rental of his flat. By inviting the jury to consider among themselves whether the applicant’s illegal immigrant status would constitute an innocent reason to lie, the judge was effectively hinting to them that the answer to his question should be in the negative. In a similar vein, by Ground 3, Ms Draycott argued that the jury should have been directed in clear terms that the applicant’s flight could not be probative of murder.

29.In response to these arguments, Mr Leung submitted that the standard directions on lies and flight were correctly given by the judge in the present case, pointing out that there was no authority to support the contrary proposition that, where a defendant’s motive for lying or flight might be related to the commission of another offence, the jury must be directed to ignore the defendant’s lies on the assumption that he must have an innocent reason for lying, or for fleeing.

E.3. Grounds 4 and 5 – Matters relating to the applicant’s allegations of being assaulted by unknown persons and the voluntariness (or involuntariness) of his video recorded interviews

30.By Grounds 4 and 5, Mr Draycott criticised the judge’s directions, cited at [20] above, complaining that the judge only left the jury to decide which side was telling the truth, without giving them any assistance as to how the applicant’s allegations should be evaluated. It was submitted that the impugned directions were thereby wholly inadequate.

31.For the respondent, Mr Leung argued that the impugned directions should not be read in isolation but together with the judge’s detailed summary of the applicant’s allegations of assault and mistreatment; his admission to the hospital as a result of sustaining injuries; the reasons why he lodged the complaint of assault at a subsequent stage, coupled with the judge’s directions to the jury that they should ignore the contents of the video recorded interviews if the applicant’s allegations of assault were or might be true^{^[49]}.

E.4. Ground 6 – Unfavourable remarks against the applicant at the end of the summing-up

32.By Ground 6, leading counsel criticised the judge for repeating references to the lies told by the applicant and certain inconsistencies between his evidence in court and his assertions in his video recorded interviews immediately before the jury were sent out to consider their verdicts. She submitted that the judge’s remarks rendered the summing‑up unbalanced and unfair in their overall effect.

33.Mr Leung, on the other hand, argued that the judge had a duty to highlight the relevant evidence for the jury, of which lies were a significant feature. Insofar as the applicant’s lies and inconsistencies were concerned, the judge’s directions to the jury as to how these matters should be approached were correct.

E.5. Grounds 7 and 8 – Did the applicant jump down and injure himself?

34.By Grounds 7 and 8, Ms Draycott submitted that the judge was wrong on the evidence to tell the jury that the applicant had jumped down from 2^nd floor of the building^{^[50]} (Ground 7); or that the police witnesses saw him jumping^{^[51]} (Ground 8). Whilst accepting that the applicant had escaped from the 2^nd floor, Ms Draycott submitted that the judge should have reminded the jury that his route would only have involved him travelling down one storey, the distance being relevant to whether any injury would have been caused, and the extent of such injury; even assuming that he had “jumped” from the 2^nd floor into the light-well on the 1^st floor.

35.Mr Leung submitted that since the judge had properly summarised the respective versions of the prosecution and the defence witnesses on the question of flight, the jury would have well appreciated the significance of the issue. He also pointed to the evidence of the police witnesses regarding the applicant’s landing on the light-well, submitting that there was ample evidence to support the inevitable inference that the applicant had jumped from the 2^nd floor onto the light-well.

F. Discussion

36.We can dispose of Grounds 3, 4, 5, 6, 7 and 8 relatively easily, and shall deal with them in reverse order. We shall then address Ground 2 and, finally, Ground 1.

F.1. Grounds 7 and 8

37.In respect of Grounds 7 and 8, which we can deal with together, it is plain that when the judge made the remarks complained of in the opening page of his summing-up, namely, that “the defendant jumped down from the 2^nd floor and was subdued by police officers at the platform of the building”[52], he was merely giving a summary of the prosecution case at the outset of his summing-up. Indeed, he had commenced his summing-up by saying, “Let me first summarise the prosecution case for you”[53]. Having briefly summarised the prosecution case, he then concluded this section with the words, “Based on the above, the prosecution say…”[54], before going on to summarise the defence case[55].

38.Later, the judge correctly contrasted the prosecution case on this issue with the applicant’s testimony that he “climbed along the metal cage”, and then “climbed down along the water pipe to the light-well of the 1^st floor”[56]. It was the applicant’s case that at no stage did he struggle[57]. It had been the evidence of Sgt 58194 that he saw the applicant jump but was unable to see from his position where he landed[58]. What followed was a forceful struggle between the applicant and police officers, which lasted two to three minutes[59].

39.The jury could have been under no illusion that the factual issue raised by the contrasting cases of the police witnesses and the applicant was whether the injuries caused to the applicant were occasioned by the manner of his escape, his jumping into the light-well on the 1^st floor and the ensuing struggle with the police upon arrest; or whether they might have been caused by police misconduct towards the applicant later at Kowloon West Police Headquarters. With respect, Grounds 7 and 8 are not based upon a correct understanding of the scheme and structure of the summing-up; nor, indeed, of the evidence, which the judge properly and carefully summarised and addressed. There is nothing whatsoever in these two grounds.

F.2. Ground 6

40.In relation to Ground 6, we cannot accept that the judge, by his repeated references to the inconsistencies between the applicant’s video recorded interviews and his evidence, in particular at the end of his summing-up, rendered the summing-up unbalanced and unfair. The judge went to some lengths to emphasise that the jury were entitled to ignore any view he might have expressed about the facts. He directed them twice in this regard at the outset of his summing-up[60]. Perhaps more significantly, given the attack on his reference to lies and inconsistencies at the end of his summing-up, the very last direction the judge gave before his concluding directions about the verdicts themselves, and before sending the jury out to deliberate, was this[61]:

“Now, all these inconsistencies are relevant when you consider the verdict in this case and I point them out to you so that you may take a closer look at all evidence and decide for yourself. Now, I repeat again, what I said is not the whole of the matter or the evidence and it is your job to read all the documents and consider all the evidence you have and decide the guilt of the defendant. Right. You are not bound by what I said, so you have the duty to decide for your own among the seven of you.”

In light of these repeated directions, where the case did involve obvious lies and inconsistencies, even on the applicant’s own case in evidence, we do not accept that there was any imbalance or unfairness in the summing‑up when read and understood as a whole.

F.3. Grounds 4 and 5

41.We can deal with Grounds 4 and 5 together because both complaints derive from a single sentence in the summing-up, which has been taken out of context and divorced from the other directions in the summing-up as a whole. It is true that the judge told the jury in general terms that when assessing the voluntariness of the 4^th, 5^th and 7^th video recorded interviews, it was for them to decide who had told the truth[62]. However, the judge had earlier given a very full summary of the applicant’s evidence of the assaults and other ill-treatment allegedly meted out to him by police officers, which began after the completion of the 3^rd interview. He commenced his legal directions in respect of the video recorded interviews[63], explaining that the first three interviews were voluntary, meaning that there was “no beating, no assault, no threat, no inducement and no oppression”[64]. He then contrasted the earlier voluntary interviews with what were said to be the 4^th, 5^th and 7^th involuntary video recorded interviews and directed the jury[65]:

“If you think there was or may be assault before the fourth video interview, then the fourth, the fifth and the seventh video interview should fall together.” (Emphasis supplied).

42.In terms of sequence, the impugned sentence came when the judge turned to the video recorded interviews which the applicant claimed were involuntary, and he instructed the jury to “carefully consider the evidence of the Sergeant 6794, 2551 and also the defendant’s evidence. It is for you to decide who told the truth”[66]. However, this was no more than a general invitation to the jury to consider the credibility of each side’s version of events. It cannot sensibly be construed, either expressly or impliedly, as a judicial direction that the jury could only act upon the applicant’s evidence if they were sure of it. Indeed, shortly after this impugned sentence, the judge gave the following direction[67]:

“Of course, the defendant now said in court that all this is invented by him because he was assaulted by police officer(s). All this goes to credibility of the defendant. You should consider carefully. If, after considering all evidence, you think the defendant’s allegation was true, or may be true, I mean the assault, you should disregard the content of the fourth and the fifth VRI. You understand?” (Emphasis supplied)

He then immediately repeated the direction[68]:

“After considering all the evidence in relation to the circumstances of the fourth and the fifth VRI, if you think there may be assault, you should disregard those content.” (Emphasis supplied)

43.Finally, shortly before the jury went out to consider their verdicts, the judge made it plain, yet again, that if what the applicant said was or may be true, they must disregard the 4^th, 5^th and 7^th video recorded interviews[69]:

“Now, if you find there was assault or there may be assault, you should ignore the content of the fourth, the fifth and the seventh video interviews. Right? If you are sure that there was no assault, then you may make use of the content of these three video-recorded interviews. However, you must consider the whole content together with other evidence and to decide what is the truth, what are the facts, right? I said it again. If you are sure that there was no assault, you may rely on the content of those recorded interviews, right, and you should consider the whole video-recorded interview together with other evidence to find out what actually happened at those times. You understand? That is the approach. Right. If you find there may be assault or there was assault then you ignore the content altogether. Right?” (Emphasis supplied)

He immediately went on to give a direction in conformity with Specimen Direction 44A of the Specimen Directions in Jury Trials, promulgated by the Hong Kong Judicial Institute, as derived from R v Liberato[70], which authority was cited with approval in Lee Fuk Hing v HKSAR[71], in the following terms[72]:

“Now, I have summarised the evidence of the prosecution and also the defendant for you. If you accept the defendant’s evidence is true or may be true, then you must acquit the defendant. Right? True or may be true, then you acquit him. If you reject the defendant’s evidence, you should still consider the prosecution evidence to see what conclusions you can infer. That is, even if you reject the evidence of the defendant, it does not automatically mean that the defendant is guilty. You must examine the prosecution evidence carefully and see if the prosecution evidence allows you to draw the only reasonable inference that the defendant committed those offences, or either offence. You understand?”

44.Nor can we accept that the judge’s directions in respect of the allegations of assault by the applicant were inadequate. It is not a fair reading or representation of the summing-up to seize on one reference in the medical report of Dr Choi Man Yan, Teresa (Exh P 266)[73] and contend that it was the extent of the judge’s summary of the alleged assault, whilst ignoring the earlier[74] and subsequent[75] detailing of those assaults and other alleged improprieties. Grounds 4 and 5 are, with respect, wholly unfounded and unrealistic complaints.

F.4. Ground 3

45.Ground 3 avers that it was wrong for the judge to suggest that the jury could use the applicant’s flight as evidence “probative of the prosecution case when, in view of his illegal status, there was an obvious and plausible innocent explanation for it”. Again, the argument is not a complete or fair representation of what the judge actually said. The direction on flight followed sequentially upon the judge’s directions on lies. As Specimen Direction 43 of the Specimen Directions in Jury Trials expressly makes clear, the directions on flight are analogous to the directions on lies: see HKSAR v Mo Shiu Shing[76]. Since similar considerations applied, it is necessary to see how the judge first directed the jury on the question of lies. On that issue, the judge said this[77]:

“Now, a defendant may lie for many reasons and there may possibly be innocent reasons for him to lie. He may lie to bolster a true defence, to conceal some disgraceful conduct or out of panic or confusion. The defendant in this case mentioned that he was afraid that his II, or illegal immigrant status was disclosed. He did not want to implicate his employer or the landlord. Right? Now, if you think that there is or may be an innocent explanation for the defendant to lie, then you would disregard the lies. It is only if you are sure that the defendant did not lie for an innocent reason, then his lies can be regarded as evidence in support of the prosecution case. Understand?”

The judge then repeated the direction and continued[78]:

“Now, I have told you the defendant said he covered up all this because of his II or illegal immigrant status. You must consider that carefully. Right. And you must think whether this amounts to an innocent reason to lie.”

46.From the question of lies, the judge immediately went on to deal with the question of flight, because similar considerations applied[79]:

“Right. Flight. Now, the defendant escaped, according to the police, by climbing along the iron cage and then he said he climbed down, but the police said he jumped down to the light‑well on the first floor. Now, escape from a crime scene is not automatically an indication of guilt. Similar to lies, a person may escape for many reasons, including innocent reasons. It is only if you are sure that the defendant escaped not for an innocent reason, then you may use the fact he escaped to support the prosecution case. You understand?

If there is an innocent explanation why he escaped, then you should not rely on this fact of escape or flight – we call it “flight” – to draw any inference. You understand? The principle is similar to lies, right?”

47.With respect to the complaint now being made, which we note was never voiced at trial by either counsel, the jury would have understood that as with the question of lies, if they thought the applicant may have escaped or fled because of his illegal status, they should disregard the matter of his flight. It was only if they were satisfied that he did not escape or flee for that or any other innocent reason, that the evidence of the applicant’s flight was capable of supporting the prosecution case. There is no substance in Ground 3.

F.5. Ground 2

48.We come then to Ground 2 and the argument that the judge should have explicitly told the jury that they could not make use of certain lies told by the applicant when there was an obvious and plausible explanation for them. In particular, Ms Draycott cited the obvious deceit involved in assuming a false identity and the obtaining of his tenancy and employment using a false Identity Card, as revealed in his 1^st, 2^nd, 3^rd and 6^th video recorded interviews. In argument before us, she posed the question in relation to each of these matters, “How is this probative of murder?”

49.In the first place, with respect, the judge never said that lies were probative of murder. All he ever said, quite correctly, was that lies could, in certain prescribed circumstances, be evidence “in support of the prosecution case”[80]: moreover, he directed them that they should not conclude that a witness was dishonest because he gave inconsistent evidence[81], or that he was guilty because he had lied[82]. Secondly, we think that juries must be credited with some degree of common sense. It would be absurd to suggest that because a defendant lied about his identity, having obtained a false Identity Card, on the strength of which he subsequently obtained a job in 2011 and entered a tenancy agreement in 2014, that such a lie was supportive of a case that he murdered the deceased several years later. Prosecuting counsel made no such suggestion, although he did refer to the applicant as a “pathological liar”[83], and it is inconceivable that the jury, knowing that he was in Hong Kong unlawfully, could have used the fact that the applicant had years before obtained and used a false identity to support an inference that he was guilty of murder years later. By contrast, the potential lies which did support the prosecution case were myriad; in particular, as to his whereabouts in the evening of 1 May and the early hours of 2 May 2016, his repeated journeys to and from the building where he lived and his admissions as to the non‑existence of “Ah Hoi” in the 4^th, 5^th and 7^th video recorded interviews.

50.We do not think there was any realistic danger of the jury adopting the impermissible line of reasoning suggested by Ms Draycott in respect of inconsequential lies that had nothing to do with the murder and, accordingly, we reject Ground 2. We now turn to Ground 1, on which most of the argument before us centred.

F.6. Ground 1

51.There is a superficial attraction to the notion that if the jury rejected the applicant’s testimony in court, they could still consider an alternative line of defence put forward in his video recorded interviews, specifically in the 4^th, 5^th and 7^th video recorded interviews. Where, for example, a defendant denies murder on the basis that the killing was an accident, or was brought about at the hand of someone else, it would still be open to a jury to consider an account that the defendant was provoked, which had been put forward in interview. Thus, in HKSAR v Huang Xiang Rong[84], the appellant denied in evidence that she had murdered the deceased on the basis that she was not a party to any agreement to kill or cause grievous bodily harm, nor was she present at the time of the killing. The Court held that the judge had erred in not leaving open to the jury an alternative verdict of manslaughter by way of an unlawful act, which ‘defence’ she had disclosed in a contested, mixed out‑of-court statement.

52.However, this argument requires careful analysis and a proper appreciation of the facts and issues at trial, for this is an unusual permutation of this ground of appeal. In his 4^th VRI, the applicant claimed, for the first time, that someone by the name of “Ah Hoi” had killed the deceased. Sometime after 9 pm on 1 May 2016, he said he had entered his flat to find the deceased being pinned face-down[85] on the floor of the sitting‑room[86] by Ah Hoi, who was kneeling over her and holding a knife[87]. She was still barely alive when the applicant saw her[88], and as Ah Hoi stabbed her[89]. The applicant asked what Ah Hoi was doing, but was told it had nothing to do with him[90]. Ah Hoi then stabbed the deceased again in the neck and she was dead[91]. At no stage during the killing did the applicant move from his position inside the flat by the front door[92]. Since there was blood on the floor, Ah Hoi then picked up the blood-stained clothes and floor rags and told the applicant to throw them away[93]. Ah Hoi further instructed the applicant not to say anything and he would clean the place up for him[94]. The applicant then took the rubbish away and disposed of it in a nearby rubbish bin[95]. He described the bag of rubbish as “half-full approximately, not even half-full”[96], and “not heavy”[97].

53.Notwithstanding that he had just witnessed a murder in his own home, the applicant maintained that he went off to play mah-jong in Pei Ho Street in Sham Shui Po, and did not return home until after 1 am on 2 May 2016[98]. Seeing that the body had been removed on his arrival home[99], and that his flat had been cleaned up as promised by Ah Hoi[100], but realising that there was no food at home[101], he remained in the premises for about half an hour[102], before going out for some noodles in Fuk Wing Street[103], also in Sham Shui Po.

54.The applicant, in his 4^th VRI, also gave a general description of Ah Hoi as about 45 years old, slightly more than 1.6 metres in height, a bit fat, with an ordinary hairstyle and no remarkable facial features[104]. He explained that he did not call for help, nor did he alert the police, for fear that he would be arrested for not having a valid Identity Card[105].

55.In his 5^th VRI, the only significant additional matter of significance was that the applicant confirmed that a photograph or screenshot, taken at about 9:48 pm on the night of 1^st May 2016, showed him on one occasion taking out what he claimed was “trash”[106], consisting of floor cloths and old clothes stained with blood[107]. (It is worth noting at this stage that both PW3 and PW4 also identified the applicant from this particular screenshot, thus adding strength to the quality of their own identifications).

56.The 7^th VRI was a lengthy interview lasting more than two hours, at the commencement of which the applicant was formally arrested and cautioned for the murder of the deceased. In response to the caution, the applicant said he had nothing to say[108]. What followed, however, was a series of questions and answers concerning the detail of what the applicant had said in the 4^th and 5^th video recorded interviews, his relationship with the parties concerned, his telephone calls on 1 May and his movements on 1 and 2 May 2016. For present purposes, it is not necessary to go into those answers, other than to observe that he adhered to his story that Ah Hoi had murdered the deceased.

57.What is important to note at this stage – and we shall return to this matter in due course – is that the applicant was not, in his 4^th, 5^th and 7^th video recorded interviews, advancing an alternative ‘defence’ to murder: at most, he was admitting to being present witnessing a murder by somebody else, a crime in which he took no part. So far as Count 2 was concerned, which need not have been on the indictment at all but for the fact that the body has never been found, he was arguably admitting being an accessory after the fact by disposing, not of the body, but of some blood stained floor cloths and clothes associated with it[109]. Of course, the jury were never directed to consider any accessorial basis of liability on Count 2, and clearly convicted him on the sole and primary basis put forward throughout by the prosecution that he had actually disposed of the body, having first murdered the deceased.

58.It is then necessary to see how the defence was conducted at trial. The applicant gave evidence-in-chief that the entire version he had given about his witnessing of Ah Hoi killing the deceased in his sitting‑room in the 4^th, 5^th and 7^th video recorded interviews was false[110]:

“… I made up a story to deceive them to avoid further beating from them. I invented a version that I finished work, I went home. I said that I saw Ah Hoi. Ah Hoi was pointing a knife against auntie. Holding a knife and pointing at auntie. I said that I saw him poke auntie with the knife. I said that I helped Ah Hoi by picking the clothing and bloodstained cloth and went for dumping …

I invented this version. And I also told them after the dumping, I went to play mah-jong. So for all these things that I said, I was forced by them because I had been beaten up and these policemen did not treat me as a human. So I’ve got no alternative and I was forced to tell lies. In reality, I did not see anything like this. Because at that time I really could not bear the way that they beat me.”

A little later, he reiterated[111]:

“And the things that I told were simply an invented story just to avoid for being further beaten up.”

At the end of examination-in-chief, the applicant was asked whether the Ah Hoi mentioned in his video recorded interviews was the same as one of the clansmen who had occasionally accessed his flat[112]:

“Q. Now, just one last question. The Ah Hoi you mentioned in evidence, Victory Hoi, one of the four clansmen you had described in your evidence, was this Ah Hoi the same as the Ah Hoi mentioned in all your VRIs?

A. Different.

Q. The one you mentioned in your VRI Ah Hoi was a sea, 三點水 right, that “海”, as I can see from the transcript.

A. That’s right. That Ah Hoi was invented.”

59.In cross-examination, the applicant again stressed that the version of events concerning Ah Hoi was untrue[113]:

“Q. Not only did the, you say, police force you to blame another person for the murder they forced you to say that you had nothing to do with the murder.

A. That’s right. I said so only because I was under his leading.

Q. They forced you to say that you had nothing to do with the murder.

A. But he beat me up and actually I did not do it. I did not do it at all, so how can I say I did it? I said so only because I was under his leading otherwise I wouldn’t have said so.

Q. They forced me to blame Ah Hoi.

A. I wasn’t forced to blame particularly Ah Hoi, but Ho, 6794, said to me, “Look I believe that you yourself alone could not do so many things”.

Q. Do you remember the evidence you gave where you said, “51200 said, ‘Say it is Ah Hoi. Say it is Ah Hoi who killed aunty. You must say this’”. That was your evidence.

A. At that time I was in the room where I was beaten up. It was under the leading of 6794 I said that version, I told that version. After I told that version in that room, he and other cops did not beat me further and after I told that version, Sergeant 51200 said to 6794, he said, “Enough, enough. Big Sir says enough. It’s sufficient to do it”.”

60.A few questions later, prosecuting counsel asked the applicant about his relationship with his aunt[114]:

“Q. Did you like your aunt?

A. Okay, pretty good. She was a nice person.

Q. You didn’t mind making up a false story about her being murdered.

A. I got no alternative. I was forced to do it. I did not want to say it out of my own initiative.

Q. So you had no concerns, worries, attacks of conscience about telling the police that she had been murdered.

A. It’s not about worry because all these things were not true.”

61.Finally, prosecuting counsel asked the applicant about the 7^th VRI[115]:

“Q. In the seventh interview you persisted with the story about Ah Hoi.

Q. Right.

Q. You were still inventing the story, were you?

Q. That’s right.

Q. You invented the story about your relationship with Ah Hoi.

Q. That’s right.

Q. Yes. You said that you met Ah Hoi alone. None of your families knew him and you called him Hoi Gor.

Q. That’s right, all were invented, yes.”

62.It is important to bear in mind that the applicant was not simply alleging that what he had said in the 4^th, 5^th and 7^th video recorded interviews was involuntary: his case was that it was also untrue and that he himself had made it up by inventing a fictitious person called Ah Hoi, whom he falsely claimed to have witnessed murdering his aunt. The significance of this point is that even if the jury found that the 4^th, 5^th and 7^th video recorded interviews were not involuntary, the defence case was that what the applicant had said about Ah Hoi, whether voluntarily or involuntarily, was nevertheless untrue. His evidence before the jury was that after work on 1 May 2016, he had returned home feeling tired, had a shower and some noodles, watched a little television, gone to bed and fallen asleep. He awoke sometime after 1 am on 16 May and went out for a night snack, before going for a massage. He subsequently returned home via a 7-Eleven store, where he purchased some cigarettes, and went back to bed[116]. He was on leave the following day[117]. Accordingly, it was the applicant’s case, given in evidence, that he did not kill the deceased, nor did he witness Ah Hoi killing the deceased. Moreover, Ah Hoi and the events he described in his 4^th, 5^th and 7^th video recorded interviews were figments of his own imagination.

63.Even if the jury accepted what the applicant had said about witnessing Ah Hoi murdering his aunt in the 4^th, 5^th and 7^th video recorded interviews as voluntary, it was nevertheless an exculpatory account that was not made on oath nor tested in cross-examination; moreover, it had been decidedly disowned as false by the applicant himself in his evidence before the jury. We ask, in those circumstances, how any weight at all could be attached to mere assertions about Ah Hoi, when there was no supporting evidence from the applicant, or from any other source, as to his existence. The judge, in our view, rightly questioned as unfounded in fact the proposition that Ah Hoi had murdered the deceased.

64.Moreover, the prosecution did not at any stage accept the existence of Ah Hoi either. Their case throughout was that the applicant had acted alone in single‑handedly murdering his aunt, for whatever reason, and then disposing of her body by making several trips out of the flat to dispose of it. This was supported by PW3 and PW4’s evidence positively identifying the applicant in the CCTV footage leaving (and, on one occasion, entering) the Iskra Building on a number of occasions during the late evening of 1 May and the early hours of 2 May 2016, carrying bags and suitcases.

65.It should, therefore, be clearly understood that neither party to the trial proceedings was suggesting that Ah Hoi had killed the deceased. Although it was the applicant’s case that someone else must have killed her because he himself did not, it was no part of anyone’s case at trial that the killer was Ah Hoi. Indeed, it was both the prosecution’s position and the applicant’s evidence that the applicant was not a passive witness to a murder committed by Ah Hoi, because Ah Hoi did not exist. Accessorial liability was never part of the prosecution’s case on either Count, nor was it ever an issue placed before the jury. Standing by the door witnessing the final moments of a killing does make the witness an accessory to murder. Moreover, the argument that the jury could have convicted the applicant of aiding and abetting the prevention of the lawful burial of a body in Count 2, assuming the mere disposal of blooded floor cloths and clothes even goes that far, which we do not think it does, is equally unrealistic: it was never anyone’s case that the applicant was an accessory to the prevention of the lawful burial of the deceased’s body. Indeed, the jury must have convicted the applicant on the basis that, having murdered the deceased himself, he then went about disposing of her body, thus preventing the lawful burial of her body.

66.Unlike the position in Huang Xiang Rong, the applicant was not in his video recorded interviews advancing an alternative set of circumstances which, if believed, could have resulted in an alternative verdict. Rather, as Mr Leung put it in oral argument before us, the applicant was, by way of his 4^th, 5^th and 7^th video recorded interviews, advancing a “different version of someone else did it”; a version which, at trial, neither he adopted nor the prosecution accepted.

F.6.1. The application of HKSAR v Chau Yui Ming

67.The responsibility of a judge in such circumstances as these has in fact been recently and comprehensively addressed by Ma CJ, on behalf of the Court of Final Appeal in HKSAR v Chau Yui Ming[118], where the issue was identified as:

“… whether there was a duty on the Trial Judge to have required a single count of trafficking in dangerous drugs to be amended so as to enable the jury to decide on different charges instead of only a single charge, it being said that there was evidence to support different factual scenarios and notwithstanding that this was not the course submitted by either the prosecution or the defence”.

Ma CJ went on to note, however, that that issue raised “broader questions as to the approach which should be adopted in relation to alternative verdicts”[119].

68.Observing that “[t]he way that the defence is run on the facts is obviously relevant in determining whether there is sufficient evidence in support of an obvious alternative verdict”, Ma CJ considered that it was unhelpful, not to say confusing, for a judge to have to direct a jury on alternative options based on vague expressions such as “possible alternatives”, “possible scenarios”, “alternative defence scenarios” or “secondary defence scenarios”[120]. Of this type of expression, he said[121]:

“Apart from being imprecise and uncertain, it can give rise to considerable practical difficulties in application because it can lead to a real potential for confusion on the part of the jury. Where, for instance, the defence’s evidence and approach to the evidence is contrary to such alternative or possible or secondary factual scenarios, it would be confusing and wrong for a judge to have to direct a jury on those alternative factual scenarios. Were it otherwise, this would invite ingenious attempts to identify alternative scenarios, particularly after trial, in order to impugn a summing-up, these allegations bearing little or no resemblance to what was the reality at trial.” (Emphasis supplied)

Ma CJ continued[122]:

“There was no alternative defence run by the appellant: the only defence he ran was that he had nothing to do with the drugs and that he was framed.”

At the risk of too simplistic an adaptation of these latter words to the circumstances of the present appeal, there was no alternative ‘defence’ run by the appellant: his only defence was that he had nothing to do with the murder. In Chau Yui Ming, Ma CJ went on to observe that, of the other factual scenarios referred to by defence counsel in his final submissions, they “were not alternative defences at all but mere speculations”[123]. It seems to us that the judge in the present case may have been trying to discourage speculation when he told the jury, in response to defence counsel’s closing address, that since on both the applicant’s and the prosecution’s case Ah Hoi was a fictitious person, he could not be the killer.

69.In our judgment, the judge was correct in his direction to the jury. Had he said nothing, it would have been an exercise in speculation for a jury to consider unsupported assertions that someone called Ah Hoi had murdered the deceased, with the applicant looking on, when the applicant himself disclaimed such assertions, and when there was no other evidence to suggest that such a person ever existed. Indeed, the CCTV footage evidence stood testament to Ah Hoi’s non-existence, since no one had ever purported to identify him entering or exiting the building. For the same reason, the judge was plainly correct to describe as “flimsy” the possibility that the person in dark clothing, whose misfortune it was to appear momentarily in the CCTV footage going in and subsequently coming out of the Iskra Building, might also be the murderer. To be fair to defence counsel, he did on this last matter agree with the judge that the suggestion was “very far-fetched”[124], for which there was “no evidential basis”[125].

F.6.2. The application of the proviso to Ground 1?

70.Upon analysis of both the evidence and the applicable law, therefore, we find there is ultimately no merit in Ground 1 of the appeal. Although there was argument from the parties at the appeal on the issue, we should state that we did not consider that the proviso to section 83(1) of the Criminal Procedure Ordinance was even engaged. But if we are wrong on this matter, and the proviso was engaged, we would have had no hesitation in applying it, despite the fact that we are dealing with an offence of murder, and notwithstanding that the verdicts were each returned by majority verdicts, albeit different majorities. Assuming for a moment that, rather than an alternative view of the facts, it were to be suggested that there was an “obvious” or “viable” alternative ‘verdict’[126] arising from the applicant’s unsupported assertions in his 4^th, 5^th and 7^th video recorded interviews, we consider that such a ‘verdict’ would have been “so incredible, tenuous or uncertain that no reasonable jury could have accepted it”, to cite the words of Chan PJ on behalf of the Court of Final Appeal in Ho Hoi Shing v HKSAR[127], which were themselves derived from the judgment of Lord Clyde on behalf of the Privy Council in Von Starck v The Queen[128], and subsequently applied by Lord Bingham in the House of Lords decision in R v Coutts[129].

71.It must be remembered, as Bokhary PJ on behalf of the Court of Final Appeal in HKSAR v Lam Chi Kwong[130]described it, “the proviso itself is an instrument of justice”[131]. An appellate Court is concerned with the reaction of the hypothetical reasonable jury, not necessarily the jury in question, and the Court’s view of what such a jury would think of the evidence. The test is “whether a reasonable hypothetical jury, properly instructed would, on the evidence, without doubt convict or would inevitably come to the same conclusion”[132]. In applying such a test, Bokhary PJ held that “the realism and common sense with which jurors are expected to approach their task must be attributed to the proviso’s reasonable hypothetical jury”[133].

72.It is further to be noted that Bokhary PJ considered that there was no reason, in applying these principles, why the proviso could not be applied to confirm a conviction “even though there has been a misdirection on how the jury should deliberate”[134]. We would need to consider, even if we assumed the judge should not have made the impugned remarks, how a reasonable hypothetical jury would have decided the case if the remarks had not been made; in other words, whether a reasonable hypothetical jury, applying realism and common sense, would inevitably have convicted the applicant. Even if we were to make the assumption, which we do not in fact accept, that the judge erred in his remarks, we consider that such a jury would still inevitably have convicted on the evidence before them.

73.The evidence and inferences against the applicant in the present case were very strong indeed. Although there was no obvious motive for the killing, there was clearly presence and opportunity, as well as witness evidence that the applicant made five trips into or out of the Iskra Building with bags and suitcases in the late hours of 1 May and the early hours of 2 May 2016. There were multiple blood stains of the deceased in the applicant’s flat, as well as mixed bloodstains of the applicant and the deceased on his clothing. There was the extraordinary telephone message left by the applicant shortly after midnight on 1 May 2016, some 19 hours before the deceased entered the Iskra Building and was never seen again, enquiring about the location of a refuse dump. And, of course, there were copious lies, as well as his flight, which were capable of supporting the obvious inference that he had murdered his aunt and disposed of her body.

74.Whilst the applicant’s lies could not prove the counts on the indictment by themselves, once the jury were satisfied that PW3 and PW4 had correctly identified the applicant leaving or returning to the premises on five occasions carrying bags or suitcases, and that the applicant’s evidence that he did not leave or return five times but only once was, therefore, a lie and not a mistake or explicable for some other reason, such lies were telling, and compelling, evidence in support of the prosecution case.

G. Conclusion

75.Whilst we grant leave to appeal on Ground 1 as being reasonably arguable, we dismiss the appeal. In respect of all other grounds of appeal, leave to appeal against conviction is refused.

(Andrew Macrae)	(Ian McWalters)	(Kevin Zervos)
Vice President	Justice of Appeal	Justice of Appeal

Mr David Leung SC, DPP and Mr Simon Kwong SPP, of the Department of Justice, for the Respondent

Ms Charlotte Draycott SC, instructed by Au Yeung, Cheng, Ho & Tin, assigned by the Director of Legal Aid, for the Applicant

[1] Admitted Facts – Part 1, para 3: Appeal Bundle (“AB”), p 12.

[2] Admitted Facts – Part 1, para 5: AB, p 12.

[3] Admitted Facts – Part 1, para 4: p 12.

[4] Admitted Facts – Part 2, paras 12-13: AB, p 22.

[5] AB, p 48S-T.

[6] Admitted Facts – Part 1, para 19: AB, p 14.

[7] Screenshots at AB, pp 332-333.

[8] Although there were some discussions between the judge and respective counsel for both sides as to whether it was a hammer in the photograph: AB, pp 341-344.

[9] AB, pp 294N-295I.

[10] AB, p 32P-Q.

[11] AB, pp 298P, 300E and 301M-N.

[12] AB, p 298M-N.

[13] AB, p 300P-Q.

[14] AB, p 301N-O.

[15] AB, p 293O.

[16] AB, p 300O. In particular, in Room A there were 13 bloodstains, of which 11 contained the DNA of the deceased, and 2 the DNA of the applicant: AB, p 31I-K, p 60O-Q, p 95-8N-O.

[17] AB, p 31K-M; AB, pp 300U-301A.

[18] AB, p 62O.

[19] Admitted Facts Part 1, para 38i: AB, p 17.

[20] AB, p 294L-M.

[21] AB, p 202P-T.

[22] AB, p 203B-C.

[23] AB, p 63H-L.

[24] AB, pp 63T-64A.

[25] AB, p 64I-J.

[26] AB, pp 64S-65B.

[27] DPC5988 (PW10) testified that the applicant jumped from a height of about 3 to 4 meters: AB, p 55I.

[28] AB, pp 128T-129A.

[29] AB, p 70N-O.

[30] AB, p 155F-H. See also the photograph at AB, p 338.

[31] AB, p 312C-L.

[32] AB, p 317J-Q.

[33] AB pp339N-340K

[34] AB, p 30–p 62-1B.

[35] AB, p 62-1G–p 73L.

[36] AB, p 73P–p 95-5.

[37] AB, p 95-6–p 95-13.

[38] Including his account of having been punched by a team of police officers before and during the 4th VRI (AB, pp 69C-70G).

[39] AB, p 70N-U (the impugned directions under Ground 4). It should be noted that following these directions, the judge also set out the injuries sustained by the applicant according to the medical report and the factors relevant to an assessment of whether his allegations of police impropriety were or might be true (AB, pp 84G-85G).

[40] AB, p 83M-U (the impugned directions under Ground 5).

[41] AB, pp 86Q-87B.

[42] AB, p 91H-Q.

[43] AB, p 91R-U.

[44] AB, p 92B-D.

[45] AB, p 92J-M.

[46] AB, p 95-6Q-R.

[47] AB, p 95-10H–p 95-11G.

[48] The applicant’s former mother-in-law.

[49] AB, p 95-7O-Q.

[50] AB, p 30Q.

[51] AB, p 55G and p 84M-N.