HKSAR v. Tsang Cheung-yan
Read the full judgment text of CACC 361/2019 on BabelCite. This Court of Appeal judgment was delivered on 3 November 2021.
1. The applicant (“D1”), together with Lau Keith (“D2”) and Cheung Sin Hang (“D3”), were jointly charged with murder [1] (Count 1), and preventing the lawful burial of a body [2] (Count 2). They all pleaded guilty to Count 2 but not guilty to Count 1. A trial accordingly took place before P Li J (“the judge”) and a jury. On 13 December 2019, the applicant was unanimously convicted on Count 1; D2 and D3 were acquitted of murder but were unanimously convicted of manslaughter.
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CACC 361/2019 [2021] HKCA 1656 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 361 OF 2019 (ON APPEAL FROM HCCC NO. 459 OF 2016) ________________ BETWEEN
________________ Before: Hon Macrae VP, Zervos and Anthea Pang JJA in Court Date of Hearing: 3 November 2021 Date of Judgment: 3 November 2021 Date of Reasons for Judgment: 3 December 2021 ________________ R E A S O N S F O R J U D G M E N T ________________ Hon Anthea Pang JA (giving the Reasons for Judgment of the Court): Introduction 1.The applicant (“D1”), together with Lau Keith (“D2”) and Cheung Sin Hang (“D3”), were jointly charged with murder[1] (Count 1), and preventing the lawful burial of a body[2] (Count 2). They all pleaded guilty to Count 2 but not guilty to Count 1. A trial accordingly took place before P Li J (“the judge”) and a jury. On 13 December 2019, the applicant was unanimously convicted on Count 1; D2 and D3 were acquitted of murder but were unanimously convicted of manslaughter. 2.By a Notice of Appeal filed on 20 December 2019, the applicant sought leave to appeal against his conviction. 3.At the conclusion of the hearing on 3 November 2021, we dismissed the appeal, saying that we would give our reasons in due course. This we now do. Prosecution case 4.In the morning of 4 March 2016, Cheung Man Li (“the deceased”)[3] told his cohabited girlfriend (“PW1”) that he was going to Tsuen Wan to meet a friend (“the applicant”)[4] who had promised to give him HK$5 million. Thereafter, PW1 lost contact with the deceased whose body was, on 29 March 2016, found embedded inside a cement block discovered in Flat 9D, DAN6[5], Fui Yiu Street, Tsuen Wan (“the flat”)[6], of which the applicant was the tenant and in which he resided with his friends D2[7], D3 and Miss Ho (“PW2”)[8]. 5.It was the prosecution case that, in the early hours of 4 March 2016, the applicant, D2 and D3 had a discussion about how to rob the deceased and dispose of his body. That same morning, they bought ropes, plastic bags and dichloromethane (“DCH”) and kept them in the flat. They also got a pair of shorts soaked in dichloromethane to test the smell. Later that same day, they jointly killed the deceased with intent to kill or cause him grievous bodily harm (“GBH”). At trial, PW2 was called as an immunised witness for the prosecution. 6.PW2 described herself as a secretary and sworn daughter of the applicant[9], who provided her with free accommodation in the flat[10] and paid her $8,000 per month for taking minutes of the meetings or gatherings held in the flat, in which the applicant, D2 and D3 took part[11]. She said that at some of the meetings, she had heard the applicant, D2 and D3 discuss about criminal activities relating to drug trafficking and forged documents[12]. She said that the applicant raised the matter of killing the deceased for a reward of US$30 million at some of those meetings as early as in December 2015 but she took it as a joke[13]. On 4 March 2016, the deceased visited the flat. She was at the mezzanine floor at the time and did not witness the killing at the lower floor. It was the applicant who told her that the deceased was dead[14], saying that he, D2 and D3 had killed the deceased[15]. 7.CCTV recordings of DAN6 captured the applicant, D2 and D3 bringing wooden planks, bags of cement and sand to the building from 4 to 10 March 2016 and trying to push a cement block into the lift on 8 March 2016. The three of them left Hong Kong for Taiwan on the night of 10 March 2016. With the assistance of the Taiwan authorities, they were arrested by the police on 12 April 2016 upon their return to Hong Kong. Under caution, the applicant said “[PW2] did not carry out the act. (She) had knowledge (of it) at the very most. I did help, but I was not the mastermind. The mastermind was [D2]. I just helped to deal with the corpse.”[16] A total of five video-recorded interviews (“VRIs”) were subsequently taken from the applicant. 8.At trial, Dr Poon, a pathologist, estimated that the deceased died a few weeks prior to 29 March 2016 but due to the advanced stage of decomposition, he was not certain about the cause of death, which included the depressant effect of dichloromethane on the central nervous system; suffocation due to the covering of the deceased’s mouth and/or nose and putting a pillow case and plastic bags on the head of the deceased; the cerebral blood clot found at the left cerebral hemisphere of the deceased; and cut wounds at the left lower chest and abdomen which ruptured the heart, the lung, the diaphragm and the liver. 9.It was an admitted fact that the applicant, D2 and D3 had no previous convictions[17]. Pre-trial applications 10.It is relevant to point out that counsel for D2 had made an application for severance and, as his fallback position (in case the application for severance was refused), a second application for redacting the prejudicial contents in the VRIs of his co-accused. After hearing the parties, the judge refused the severance application but granted the second application. The judge said:[18]
11.This direction to redact the contents of the applicant’s VRIs now becomes Ground 2 (infra) of the applicant’s grounds of appeal and it is convenient to set out here what the applicant stated in those redacted parts. In summary, the applicant claimed that it was D2 who stored syringes and drugs in the flat for D2’s own consumption and for use in Lan Kwai Fong so that he could drug his unsuspecting victims in order to steal or rape. The applicant further said that he had told D2 that if he wanted to use drugs on the deceased, D2 could do it but he himself would not do it. Further, the applicant stated that on the day of the killing, he was on the mezzanine floor and he pretended to inject alcohol into the deceased by using D2’s syringes. Defence case 12.The applicant elected to testify and so did D2 and D3. 13.The applicant said that he came to know the deceased in 2007, describing him as his business partner in various businesses. On the night of 3 March 2016, he was asked by the deceased to invest in an “Australian project”. However, he thought that the deceased was going to cheat him and he mentioned this to D2 and D3. D2 therefore came up with a plan to rob the deceased in Kwun Tong which transpired to be unworkable and was aborted, although some ropes, gloves and dichloromethane were bought at the request of D2 for robbing the deceased on some other occasion. On 4 March 2016, the deceased came to the flat to discuss the Australian project. Since the applicant did not want to join the project, he asked D3 to read the business documents and he himself took a rest at the mezzanine floor. At one stage, he heard bumping and banging sounds and went down to the lower floor. He saw D2 on top of the deceased and cover the deceased’s face with his right hand, while D3 was underneath the deceased. The applicant denied knowing that D2 had applied dichloromethane to the deceased but admitted that he had (under D2’s coercion) injected alcohol into the deceased’s leg twice[19] and put a pillowcase on the deceased’s head[20]. The applicant adduced the expert report of Dr Beh[21] to show that injections of alcohol could not be the cause of death. 14.In his evidence, the applicant also confessed to have cheated others which might put his character in issue. 15.For the sake of completeness, the defence cases of D2 and D3 could be briefly stated. In respect of D2, he said it was D3 who straddled the deceased and applied dichloromethane. D2 was underneath the deceased (with D3 on top) and could not do anything. In respect of D3, he said it was D2 who straddled the deceased and applied dichloromethane. He just pulled the deceased away to stop a fight between D2 and the deceased. He was underneath the deceased and could not move. Both D2 and D3 said there was no plan to kill (or rob) the deceased. Summing-up 16.The judge’s summing-up spanned more than 120 pages of transcript and took 3 days to deliver. 17.Regarding PW2’s evidence, the judge repeatedly directed the jury that she had an interest to serve and that they should be careful in assessing her credibility[22]. 18.In order to assist the jury in understanding how the criminal liability of the defendants, jointly or individually, could be established, the judge provided the jury with a written Question Trail[23], supplemented by his comprehensive directions couched in the following terms:[24]
19.Of the relevance of expert evidence in the present case, the judge told the jury that:[25]
20.Further, it is clear from the judge’s direction that the applicant’s injections of alcohol into the deceased could not have caused death[26] and that if the jury was not satisfied that there was a joint enterprise to use dichloromethane on the deceased, the applicant’s own acts would not make him guilty of murder or manslaughter[27]. 21.Before leaving the judge’s summing-up, for the purpose of Ground 3 (infra), it is relevant to highlight the judge’s direction on the “good character” of D2 and D3:[28]
22.In respect of the applicant, the judge did not give such a direction but when summarising the applicant’s evidence to the jury, the judge pointed out that “he has no criminal record”[29] and “D1 admitted he was dishonest and unscrupulous”[30]. 23.The jury deliberated for 3 days. When the court re-convened on the morning of 13 December 2019, the jury raised two questions which the judge answered as follows:[31]
Grounds of Appeal 24.By his Perfected Grounds of Appeal filed on 14 September 2020, Mr Richard Donald, counsel for the applicant here but not below, advanced four grounds of appeal:
Applicant and Respondent’s Submissions 25.By Ground 1, Mr Donald submitted that, on the basis of individual liability, the conduct of the applicant as demonstrated by the evidence could not have amounted to murder. Accordingly, he could only have been convicted of murder on the basis of joint enterprise which would then necessarily involve a similar conviction of murder in respect of D2 and D3. Since both D2 and D3 were only found guilty of manslaughter, Mr Donald submitted that there was an inherent inconsistency in the verdicts of the jury who found the applicant guilty of murder, but D2 and D3 guilty of manslaughter only. 26.Mr Derek Lai, with him Ms Jacqueline Chan, for the respondent, however, submitted that it was neither impossible nor improper for the jury to have reached different verdicts for different participants in this joint enterprise. Mr Lai argued, for example, the fact that both D2 and D3 ran a cut-throat defence might have rendered the jury unsure of their individual state of mind at the time and hence acquitted them of murder. On the other hand, there was sufficient evidence for the jury to find that the applicant participated in the joint enterprise with the intention to kill the deceased. 27.In respect of the editing of the applicant’s VRIs, Mr Donald complained that the judge made a ruling which was entirely beneficial to D2, yet wholly prejudicial to the applicant and against his wishes, hence unfair to him. In particular, Mr Donald said that matters relating to D2’s prior knowledge and experience in using substances similar to dichloromethane were relevant to both the applicant’s defence and matters of credibility. While accepting that trial counsel for the applicant, when asked by the judge in relation to the application for editing, refused to disclose the applicant’s defence, Mr Donald emphasised that the applicant has a right not to disclose his defence before trial. 28.On the other hand, Mr Lai submitted that the judge rightly exercised his discretion to order parts of the applicant’s VRIs to be edited as those parts were not relevant to the applicant’s defence. There was no evidence to suggest that the applicant had injected dichloromethane into the deceased; quite the contrary, when asked about buying dichloromethane, the applicant only said that he had previously used the substance for sticking together acrylic bookshelves and that it was D2’s idea that dichloromethane should be bought. Mr Lai further submitted that the issue of credibility is more apparent than real because D2’s previous misdeeds were brought out in the evidence of both the applicant and D3; and that D2 had been subjected to cross-examination as to his bad character by counsel for D3. 29.In respect of Ground 3, while accepting that the judge had no general duty to include a good character direction in his summing-up, Mr Donald complained that the judge was unfair to the applicant because D2 and D3 benefited from such a direction whereas the applicant did not, although all three of them had no previous convictions. 30.Mr Lai, however, emphasised that the personal background of the applicant was very different from that of D2 and D3 in that, in his own evidence, the applicant admitted making money through unscrupulous means. In the circumstances, it would be an affront to common sense if the jury were to be directed as to the good character of the applicant. Mr Lai added that, in any event, the judge had discussed with counsel about his proposed directions and no complaint was made at that time. 31.For the final Ground 4, Mr Donald’s complaint was that there was no mentioning in the judge’s summing-up as to Dr Beh’s expert report which stated that the injection of alcohol would not have caused the death of the deceased. This omission, it was said, was particularly damaging because Dr Poon said he was unable to tell the precise cause of death and therefore, there was a risk that the jury might have wrongly considered that the injection of alcohol could have been the cause of death. 32.Mr Lai disagreed and pointed to the summing-up where the judge directed the jury that it was both Dr Poon and Dr Beh’s evidence that the injection of alcohol could not have caused the death of the deceased. Discussion Ground 1 (Inconsistent Verdicts) 33.In HKSAR v CT[32], the Court of Final Appeal observed that:[33]
34.Mr Donald accepted that for a complaint on factual inconsistency, the above italicised part is the test to be applied. He further accepted that the burden is on the applicant to show that the verdicts are in fact inconsistent and that the inconsistency is such that an appellate court could not permit it to stand. 35.In seeking to demonstrate to this court that the guilty verdict of the applicant was in fact inconsistent with the not guilty verdict (of murder) of D2 and D3, Mr Donald set out at paragraph 35 of the applicant’s written submissions the following:
36.Based on the above, Mr Donald argued that there was inherent inconsistency in the jury’s verdicts “by finding the Applicant guilty of murder despite not being in a joint enterprise or causing death.”[34] (emphasis added) 37.This submission assumes that in finding the applicant, but not D2 and D3, guilty of murder, the jury must have rejected the existence of a joint enterprise. However, is this a correct assumption? 38.In the Question Trail provided to the jury, the first question was couched in these terms: “Was there a joint enterprise – agreement or common intention – to apply DCH and inject alcohol into J?” In other words, the jury was not directed to consider in this first question whether there was a joint enterprise to murder the deceased by applying DCH and injecting alcohol. The joint enterprise raised for consideration by the jury, as a starting point, was simply a joint enterprise to apply the substances, not a general joint enterprise to murder. 39.Then, according to the judge’s directions, if the jury was sure that there was such a joint enterprise, they then had to consider the defendants’ intentions in doing so: “What was the intention of the defendants in applying DCH and injecting alcohol? Was there an intention to kill or an intention to cause GBH?”. In this connection, the judge further directed the jury in these terms after he had explained the Question Trail:[35]
40.What is clear from the above is that the jury had been directed that even if they were sure that there was a joint enterprise to apply DCH and inject alcohol (joint enterprise to administer the substances), they could not jump to the conclusion that there was a joint enterprise to murder. Instead, the jury was to go on to separately consider the individual intention of each of the defendants when taking part in the joint enterprise to administer the substances. 41.Finally, the jury was instructed that if they were not even sure that there was such a joint enterprise to administer the substances, they had to go to Part C of the Question Trail which asked them to “decide the conduct of each defendant according to the evidence individually” and “decide their individual intention”. If it was proved that a particular defendant had the intention to kill or cause GBH and his conduct caused the death of the deceased, then that defendant should be found guilty of murder. 42.Thus, the assumption made in Mr Donald’s complaint is not borne out. The finding of there being a joint enterprise to administer the substances does not necessarily entail a guilty verdict in respect of the murder charge against all the participants in that joint enterprise. 43.In our view, the judge’s direction accords with the established principles and is a correct application of the principles to the evidence in this case. It was pointed out in Sze Kwan Lung & Others v HKSAR[36] that, in a joint enterprise situation, one participant may be convicted of murder even though the actual killer is acquitted outright or convicted of manslaughter. The Court of Final Appeal also referred to the decision of the High Court of Australia in Osland v R[37] and said:[38]
44.More recently in HKSAR v Chan Kam Shing[39], the Court of Final Appeal, when describing the differences between traditional accessorial liability and joint enterprise, made these observations:[40]
45.In the circumstances, Mr Donald’s complaint that “there was inherent inconsistency in the jury’s verdicts by finding the applicant guilty of murder despite not being in a joint enterprise and causing death” would seem, with respect, to have resulted from a misunderstanding of the effect of the judge’s directions. Contrary to Mr Donald’s submission, the fact that D2 and D3 were not found guilty of murder did not mean that the jury must have found that the joint enterprise to administer the substances was not proved. According to the judge’s directions, the existence of such a joint enterprise and the requisite intent for murder had to be considered separately. The two were not bound up together. 46.The jury was entitled, after considering the evidence, to find that there was a joint enterprise to administer the substances but that the defendants’ individual intentions in taking part in the enterprise differed. Thus, the manslaughter convictions of D2 and D3 could not be relied upon to suggest that the jury must have found the joint enterprise to administer the substances non-existent. Rather, it could have been the result of the jury finding the applicant to have had the intent to kill or to cause GBH when participating in that joint enterprise whereas, for D2 and D3, the jury could not be sure of such an intent, although they were sure that these two defendants also participated in the joint enterprise to administer the substances. 47.We agree with Mr Lai that on the evidence as a whole in the present case, the jury was perfectly entitled to reach the conclusion that the applicant was a party to the joint enterprise to administer the substances; and that, unlike D2 and D3, he had the intent to kill or cause GBH to the deceased because there was evidence from PW1 that the deceased was reportedly going to get HK$5 million from the applicant on the day of the killing and it was the applicant who initiated the discussion of killing the deceased for reward[41]. The applicant himself also said that there was some disagreement on money with the deceased and that on 4 March, the deceased wanted to borrow money from him. Further, there were IOUs which would appear to relate to loans taken out by the applicant from the deceased and which the applicant tried to explain when giving evidence.[42] When summing-up the case, the judge directed the jury in these terms:[43]
48.Moreover, on the evidence adduced, the applicant could properly be regarded by the jury as the leader of the gang. When the applicant testified, he himself admitted providing accommodation and food to D2 and D3, and at times, also granting loans to D2.[44] When D2 gave evidence, he said he trusted the applicant and would not think of offending the applicant, although he insisted that he was not relying on the applicant[45]. Finally, for D3, he said he admired the applicant, thinking that he was rich and influential. He also described the applicant as the leader and that everyone depended on the applicant financially.[46] Therefore, there was nothing unreasonable or illogical if the jury had come to a finding that the applicant was the mastermind in overall control of the events which took place on 4 March. If a distinction was to be drawn between the applicant and the other two defendants, his “leader” status and the suggested motive would be a solid foundation for the jury to distinguish the applicant from D2 and D3. 49.It should also be noted that it was the applicant who brought the deceased to the flat and prior to that, he was actively involved in searching for a place to kill the deceased; arranging for the purchase of items like ropes, dichloromethane and bags; and conducting the testing of the odour of dichloromethane. In addition, the applicant quickly responded to D2 and/or D3’s summoning for assistance by carrying downstairs the syringe and alcohol,[47] and subsequently, he also played a significant part in the disposal of the deceased’s body. 50.In view of the totality of the evidence adduced and the judge’s directions, we do not agree that the jury’s conclusion that the applicant was guilty of murder whereas D2 and D3 were only guilty of manslaughter was one which “no reasonable jury which had applied their minds properly to the facts of the case could have returned”. Quite the contrary, it was a conclusion which the jury, having examined the evidence and faithfully followed the judge’s directions, was perfectly entitled to reach. Ground 2 (the redacted VRIs) 51.In R v Tan Siew Gim[48], the Privy Council referred to Lobban v R[49] and stated that where the prosecution put in evidence a mixed statement of a defendant, containing admissions as well as explanations of an exculpatory nature:[50]
52.In the present case, the judge had this principle in mind but took the view that the redacted portions of the applicant’s VRIs were irrelevant to any issue at trial, and when giving the ruling, he said,
53.Given the stance of the applicant and that there was, at the time, nothing to indicate that the redacted parts were relevant to the applicant’s defence or his general credibility, we do not think that the judge could be criticised for making the now impugned ruling. In any event, we accept the respondent’s submission that insofar as the presence of syringes in the flat is concerned, the applicant told the jury that he required them to inject steroid so that he could improve his concentration and muscle power.[52] In respect of the use of DCH on the deceased, it was not a live issue at all and also, it was never suggested that the applicant himself had anything to do with the DCH. In these circumstances, the redacted parts could not have assisted the applicant in his case. 54.Although Mr Donald further suggested that the redacted portions were relevant to “matters of credibility”, it is unclear what those matters were. If by “matters of credibility”, Mr Donald was saying that the redacted parts would help to call D2’s character into question, then as submitted by Mr Lai, the jury had already got the evidence from the applicant and D3 as to D2’s triad association; theft of properties; and using “knockout drops”.[53] 55.In short, when analysed in its proper context, we do not agree that there was any prejudice caused to the applicant in respect of the judge’s ruling to redact certain parts of his VRIs. Ground 3 (the good character direction) 56.This ground can be dealt with very shortly. We should first reiterate that it is always a matter of discretion as to how a trial judge is to approach the question of good character which best suits the circumstances of the case and that such a discretion is a wide one.[54] In the present case, the applicant admitted making money through unscrupulous and dishonest means, not just on a one-off basis but over a period of time. The fact that this admission came directly from the mouth of the applicant and was put clearly and squarely before the jury must realistically have had an impact, irrespective of the extent, on the jury as to the character of the applicant. If, with that impact already operating on the minds of the jury, they were then directed that the applicant was more credible and less likely than a person with a criminal record to commit an offence, it would not only confuse them but would be an affront to common sense. The jury would inevitably question why they were directed to consider the applicant’s credibility and propensity when he himself had admitted carrying out dishonest acts which were clearly of a criminal nature. 57.Moreover, the question as to how to direct the jury on the “good character” of the defendants was raised for discussion with counsel and the direction finally given was the result of such a discussion. At the time, counsel for the applicant not only did not put up any objection, but in fact said, “That is very generous”. 58.This ground is simply not arguable. Ground 4 (the defence expert’s report) 59.Again, this ground can be disposed of shortly. The judge directed the jury in these terms when dealing with the expert evidence:
60.In the circumstances, there is obviously no room for Mr Donald to suggest that “there was a real risk that the failure by the learned Judge to draw to the jury’s attention the evidence of Dr Beh in conjunction with Dr Poon meant that there was a risk the jury could have still considered the injection of alcohol by the Applicant to be a cause of death”. Conclusion 61.Having considered the grounds of appeal advanced on behalf of the applicant, we refused to grant leave in respect of all the grounds and the appeal was dismissed accordingly.
Mr Derek Lai, SADPP and Ms Jacqueline KK Chan, counsel on fiat, of the Department of Justice, for the Respondent Mr Richard Donald and Mr Kim McCoy, instructed by Ng & Co, assigned by the Director of Legal Aid, for the Applicant [1] Contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212. [2] Contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221. [3] The deceased had a nickname, “Ah J” or “J”. [4] The applicant has a nickname, “Ah T”. [5] DAN6 is an industrial building. [6] The flat consists of a living room, a kitchen and a toilet on the lower floor and a mezzanine floor. [7] D2 is also referred to as “Ah Ho”. [8] PW2 has a nickname, “Siu Cho”. [9] Appeal Bundle (“AB”), page 63C-D. [10] AB, page 65A-B. [11] AB, page 58I-J. [12] AB, page 58J-K. [13] AB, page 58L-M. [14] AB, page 60C-D. [15] AB, page 63S-T. [16] The applicant’s post-recorded statement: at AB, page 184. [17] AB, page 26, at paragraph 54. [18] AB, pages 1962N-1963G. [19] AB, page 106D-E. [20] AB, page 106J. [21] AB, pages 2019-2023. [22] AB, page 47P-S; page 65P-S. [23] AB, pages 1988-1992. [24] AB, pages 147S-155D. [25] AB, page 48K-N. [26] AB page 149B-E. [27] AB, page 153 A-D. [28] AB, page 147O-P. [29] AB, page 100B-C. [30] AB, page 100L. [31] AB, page 160P-U. [32] (2019) 22 HKCFAR 225. [33] At page 238. [34] Paragraph 37 of the applicant’s written submissions. [35] AB, page 155D-F. [36] (2004) 7 HKCFAR 475. [37] (1998) 197 CLR 316. [38] At page 485B-G. [39] (2016) 19 HKCFAR 640. [40] At paragraphs 33 and 37. [41] AB, pages 56D-F and 58L-M. [42] AB, pages 101M-102M. [43] AB, pages 54L-55I. [44] AB, pages100M-101A. [45] AB, page 114E-G. [46] AB, page 125 F-G, P-Q. [47] AB, pages 58O-59S. [48] [1995] 1 HKCLR 299. [49] 6th April 1992 Privy Council Appeal No. 23 of 1993. [50] At page 303. [51] AB, page 1963A-B. [52] AB, page 105Q-R. [53] AB, pages 144T-145K. [54] Tang Siu Manv HKSAR (No 2) (1997-1998) 1 HKCFAR 107. [55] AB, page 48K-N. [56] AB, page 149B-E. [57] AB, page 153A-C. |
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