HKSAR v. Wahaj Fyaz
Read the full judgment text of CACC 87/2018 on BabelCite. This Court of Appeal judgment was delivered on 7 March 2022.
1. The applicant stood trial before Toh J (the judge) and a jury on an indictment containing one count of murder of Wiji Astutik Supardi (the deceased) on or about 7 June 2015, contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212 (Count 1), and one count of preventing the lawful burial of the deceased on or about 7 June 2015, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221 (Count 2)
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CACC 87/2018 [2022] HKCA 316 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 87 OF 2018 (ON APPEAL FROM HCCC NO 314 OF 2016) ________________________
________________________ Before: Hon Macrae VP, Zervos and Anthea Pang JJA in Court Date of Hearing: 22 November 2019 Date of Judgment: 7 March 2022 ________________________ J U D G M E N T ________________________ Hon Zervos JA (giving the Judgment of the Court): Introduction 1.The applicant stood trial before Toh J (the judge) and a jury on an indictment containing one count of murder of Wiji Astutik Supardi (the deceased) on or about 7 June 2015, contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212 (Count 1), and one count of preventing the lawful burial of the deceased on or about 7 June 2015, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221 (Count 2). 2.On 15 March 2018, the applicant was convicted of both counts by unanimous verdicts of the jury. He was sentenced to life imprisonment on Count 1, and 3 years and 5 months’ imprisonment on Count 2, which was ordered to run concurrently with the sentence on Count 1. 3.On 26 March 2018, the applicant filed a notice of application for leave to appeal against his conviction on both counts. 4.The hearing of this leave application was listed to be heard on 12 April 2019. However, prior to the hearing, the applicant discharged his legal representatives and as a consequence the hearing was vacated and a new hearing was subsequently fixed. 5.The applicant is now represented by Mr Trevor Beel of counsel, who, with the leave of the court, filed Amended Perfected Grounds of Appeal dated 17 July 2019. The trial proceedings 6.Prior to the applicant’s trial, the judge conducted a voir dire to determine the applicant’s challenge to the admissibility of a post-record in the police officer’s notebook of the applicant’s statement under caution, and three video records of interview and a video reconstruction, in which the applicant participated. After a four-day hearing, the judge ruled that the out-of-court statements were admissible. The trial proper commenced on 24 November 2017, but after 8 days of hearing, on 5 December 2017, the judge discharged the jury and ordered the applicant’s trial be re-fixed before a different jury. 7.The applicant’s second trial commenced on 1 March 2018 and after 11 days of hearing concluded on 15 March 2018. The prosecution case 8.The prosecution case was that in the morning of Monday, 8 June 2015, the body of the deceased was found wrapped in a mattress cover lying on the pavement at 1 Changsha Street, Mong Kok.[1] The deceased’s body was discovered by a cleaner who testified she had not seen anything of that description on the previous day when she was cleaning the street.[2] At about 10:49 am that day, an ambulance officer attended the scene and after examining the body confirmed there was no sign of life. 9.At about 1:00 pm that day, Dr Chiao Wing-fu (PW17) (Dr Chiao), a government pathologist, attended the scene and conducted a preliminary examination of the body. He found the body was in a state of early decomposition with extensive bruises and cuts on her hands and fingers. He estimated the time of death was about one day prior to the preliminary examination. 10.The deceased was an Indonesian national who had come to Hong Kong to take up employment as a domestic helper. However, at the time of her death she had ceased working in that capacity, and had made an application for asylum as a torture claimant.[3] 11.The applicant is a Pakistani national who at the time of the offence lived in a room at the top floor of the building at 1 Chang Sha Street, Mong Kok. It was not in dispute that the applicant and the deceased were in a relationship at the time of her death. It was acknowledged, even by the applicant himself, that the relationship between them was a turbulent one and there were incidents of previous acts of violence by the applicant on the deceased.[4] 12.The issue at trial was whether the applicant killed the deceased, or alternatively whether the deceased died of some other cause unrelated to the applicant. There was no direct evidence implicating the applicant in the deceased’s death. The prosecution case consisted entirely of circumstantial evidence, including forensic and medical evidence, as well as the applicant’s undisputed admission that he had assaulted the deceased at about the time of her death. The jury were invited to draw the only reasonable inference from the evidence that it was the applicant who had inflicted the injuries found on the deceased which caused her death, and who had subsequently disposed of her body in the street. 13.It was an admitted fact that, at about 11:30 am, on 7 June 2015, the day before the deceased’s body was discovered, the applicant checked into a room at a guesthouse in Chungking Mansions, Tsim Sha Tsui.[5] 14.Several days later, at about 4:10 am, on 10 June 2015, police officers located the applicant inside a female toilet at Cafeteria Bay, Tuen Mun, in the company of another person, Shahbaz Khan (PW18), both of whom were in the process of consuming drugs.[6] The applicant was arrested for the murder of the deceased and under caution he replied in English: “On Saturday night, I had an argument with my wife. I slapped her on face and kicked her on the ground. We both had drugs.”[7] 15.The applicant subsequently participated in three video records of interview and a video record of a reconstruction. The interviews and the reconstruction were not challenged by the applicant at his trial, and were admitted into evidence by agreement of the parties.[8] 16.It was admitted by the applicant that prior to the death of the deceased, he had assaulted her at the staircase near the rooftop of the building but denied he had killed her. He stated he only kicked the deceased once to the chest after slapping her, whereupon she fell down the stairs.[9] He said they quarrelled over a man living in a flat downstairs, from whom he claimed the deceased had obtained Ice, and this led to him kicking her.[10] He said he went after her and she said she was alright. He then brought her back up to the roof, where they smoked Ice together for another two hours.[11] As they always argued, he decided to leave their place of abode and rent a room at Chungking Mansions.[12] He claimed after that occasion, he never went back to the roof. He also admitted that in the past, he had assaulted the deceased and had also used a small knife to cut her face.[13] 17.During the course of the applicant’s third interview, the video record of interview of PW18 was played to him in order for him to give a response, if any, to what PW18 had said about him.[14] The interview commenced with the applicant being informed that his room at Chungking Mansions had been searched by the police. He was taken to items found in a bag which he said belonged to PW18.[15] He confirmed that PW18 was his friend.[16] He identified another bag that was seized from the room which belonged to him.[17] He was questioned about the identity of a person in a photograph produced to him that was carrying a bag similar to his.[18] He was shown other photographs that depicted a person whom he said he did not know. 18.After these matters had been canvassed with the applicant, the police officer played the video record of interview of PW18 which was conducted on 10 June 2015. PW18 said in his interview that he was called by the applicant who told him he wanted to go to Tuen Mun and then to China because he had killed his girlfriend.[19] He was questioned at length about his dealings with the applicant and what the applicant had told him about killing his girlfriend. 19.During the course of the playing of PW18’s interview, the applicant would from time to time interrupt and comment about what had been said by PW18. When PW18 stated that the applicant had told him he had to go to Tuen Mun and meet someone, after which he would go to China because he had killed his girlfriend, the applicant interrupted and said “he is lying, I did not say this”.[20] Thereafter there were other occasions he interrupted making comments about what had been said by PW18.[21] 20.Later on in the recording, PW18 stated that he and the applicant took a taxi to Tuen Mun. He stated the applicant called his friend and waited for him. He said they were scared and hid in the toilet. At this point, the applicant interjected and said he went to the toilet to consume Ice and he was not afraid.[22] He added that “a scared person would never sit somewhere in hiding, he would keep his eyes open.”[23] He said he would not be consuming Ice if he was scared and PW18 was lying.[24] The applicant made further comments about PW18’s account of them consuming Ice in the toilet.[25] 21.After the applicant had a toilet break,[26] the interview continued with him asking how much longer it would take to finish. He was told about one hour, to which he said he did not want to watch it anymore because PW18 was “telling all lies.”[27] The interview was then terminated. 22.This will be a matter of some significance later in the judgment in respect of the grounds of appeal because the third video record of interview was placed before the jury without objection from the applicant. A part of it was redacted,[28] but not the part that concerned PW18’s video record of interview. The testimony of the deceased’s friends 23.Four of the deceased’s friends testified for the prosecution (PW12, PW13, PW14 and PW15). They were fellow Indonesians, who became acquainted with the deceased in a Nepalese bar in Jordan in early 2014.[29] The four rented a small sub-divided flat in Jordan and the deceased would on occasion stay with them.[30] 24.Later in early 2015, they learnt the deceased had a boyfriend, the applicant, whom they referred to as “WD”.[31] The deceased then started to live with the applicant in a place in Mong Kok.[32] They described the relationship between the two as “full of quarrels”,[33] and after one or two months of them being together, they started to notice that the deceased had bruises on her face and body.[34] When she was queried about them, the deceased said she was assaulted by the applicant because he was jealous and suspicious of her having another man, which she denied.[35] The physical assaults, they said, happened on many occasions, and as a consequence the deceased would come and stay with them. But each time she would return to the applicant.[36] 25.There was a time when the deceased sustained a long cut on her face which required numerous stitches. When she was queried about the cut, the deceased said it was “about the jealousy”. She stayed with her friends for a few days but then returned to the applicant.[37] 26.Some months prior to the deceased’s death, PW12 told the deceased she was not welcome at the flat anymore because of what was happening. This was the last time she saw her alive.[38] 27.PW13 recalled an occasion, about two or three weeks before the deceased’s death, when she saw the applicant and the deceased quarrelling loudly in the street. The applicant slapped and pulled the deceased’s hair, as she was screaming and trying to run away.[39] 28.PW14 recalled another occasion, shortly before the deceased’s death, when the applicant and a male friend of his came to the flat in search of the deceased, who was not there at the time. PW15 was also present. The applicant told PW15 to call the deceased. The two of them were not allowed to leave and at the time the applicant told his friend to slap the face of PW15, which he did. The deceased soon returned and the applicant took out a flick knife and played with it. It was then the deceased told PW14, that that was the knife the applicant had previously used to cut her face.[40] The deceased then left with the applicant and his friend.[41] PW15 also recounted in her evidence this incident in the flat.[42] It was the last time that both of them saw the deceased alive.[43] 29.All of the four friends testified that the deceased lived with the applicant at the time of her death.[44] 30.We should point out that the judge when addressing the evidence from the deceased’s friends reminded the jury in her summing-up that the past incidents between the applicant and the deceased and the deceased’s statements about them were background evidence:[45]
31.It seems that the evidence of the previous arguments and fighting between the applicant and the deceased and the applicant’s jealousy was relied on by the defence to explain why he left his residence and moved into the guesthouse and to suggest that there was the involvement of another person.[47] This evidence was also relied on by the defence to show that the applicant had quarrelled with the deceased about her obtaining drugs from a male downstairs in the building and this provoked him in assaulting her.[48] The testimony of Shahbaz Khan 32.As the evidence of PW18 features predominantly in this appeal, it is necessary to briefly provide a history of the proceedings and an overview of the circumstances that led to PW18 being called as a witness and ultimately declared hostile. 33.As already noted, the present trial was the second trial that the applicant faced. Early in the proceedings, the applicant offered to plead guilty to the offences of manslaughter on the basis of diminished responsibility and preventing the lawful burial of the deceased. The prosecution rejected the offer and defence counsel then acting for the applicant withdrew from the case. New counsel, Mr James Sherry, was assigned to represent the applicant. In the proceedings at the first trial, the applicant challenged the admissibility of the police officer’s notebook entry and the three video records of interview and the video record of the reconstruction. One of his principal grounds of objection was that he was under the influence of Ice and suffering from an abnormality of the mind.[49] After a voir dire from 20 to 23 November 2017, the judge ruled that the applicant’s out-of-court statements were admissible. One of the witnesses called by the prosecution was PW18, who had been difficult to locate, but once located expressed a reluctance to give evidence against the applicant. He was warned by the judge and gave evidence under immunity. 34.The case proceeded to trial on 24 November 2017, during which PW18 (his trial designation was PW14 in the first trial) was called as a prosecution witness. Mr Sherry opposed the application to turn PW18 hostile on the basis that his evidence was not inconsistent with his statement. After hearing submissions from counsel, the judge ruled that PW18 should be treated as a hostile witness. He was then further examined by Mr Donald and Mr Sherry in turn. 35.Later, the applicant’s third video record of interview was produced and played before the jury. It appears there was discussion about whether it was appropriate to play the interview as a consequence of PW18 having been declared hostile. Both counsel agreed it should be played in order to put before the jury the applicant’s response to the accusations made by PW18 in his video record of interview.[50] It is important to note that parts of the video recordings and the relevant transcripts that were considered prejudicial to the applicant had been redacted. This did not include PW18’s video record of interview and there was no objection from Mr Sherry.[51] 36.In the applicant’s first trial, it appears he intended to raise the defence of diminished responsibility. It was for this reason, that prosecuting counsel called, before the close of the prosecution case, Dr Amy C Y Liu, an expert psychiatrist, as a rebuttal witness in relation to the applicant’s mental state. She testified the applicant admitted to her that he killed the deceased and disposed of her body, believing that she was a monster who wanted to kill him. She expressed the view that the applicant’s account of what he experienced should be interpreted with caution and that he was not suffering from an abnormality of mind at the time of the killing.[52] Dr Liu’s evidence was in response to the disclosure by the defence of the reports of two psychiatrists, Dr Li Cheuk Wing and Dr Fan Tak Wing, who were to be called on behalf of the applicant. Both described a similar account from the applicant of the offence to the one he had given to Dr Liu, but they were of the view that he was suffering from an abnormality of the mind at the time of the killing and when he participated in the video records of interview.[53] 37.The judge raised the question whether calling Dr Liu as a rebuttal witness in the prosecution case, to whom the applicant had made an admission, was unfair to him. She received submissions from counsel on the issue. Mr Sherry in his written submission explained that the defence took no objection to Dr Liu being called at that stage in order for her to give evidence in accordance with her report. Although, he indicated that if the judge remained of the view the jury should be discharged he would make no further submission on the matter.[54] The judge ruled that what had taken place would result in unfairness to the applicant and discharged the jury on 5 December 2017. 38.The second trial commenced on 1 March 2018. It would appear that the defence decided not to run diminished responsibility. We can only assume that counsel’s instructions were such that he was no longer able to advance this defence before the jury. Instead, the defence case was that either a third person killed the deceased or she died of an overdose of Ice. The jury were invited to consider as an alternative to the offence of murder, the offences of manslaughter by provocation or by unlawful act on the basis of the applicant’s admission that he had quarrelled with the deceased and assaulted her at the material time. 39.At the outset of the prosecution case, the Admitted Facts were read out to the jury, in which the parties agreed to produce as an exhibit the applicant’s third video record of interview. The prosecution, again had difficulty locating PW18 in order for him to attend court to give evidence. He was eventually found and brought before the judge on 7 March 2018. He explained that he had been unwell, but the judge ordered that he be remanded in custody and taken to see a doctor. In the meantime, the out-of-court statements of the applicant were played to the jury, including the third video record of interview. No objection was raised by the defence. 40.PW18 was scheduled to give evidence the next day on 8 March 2018. However, Mr Sherry objected to him being called as a witness. He submitted it was an inevitable consequence that PW18 would be declared a hostile witness and cross-examined on his statement, in which he alleged the applicant made a confession to him. He further submitted that in the circumstances it would be improper to call him.[55] 41.Mr Donald resisted the application on the basis that it was unknown whether PW18 would be declared hostile, and in any event he would provide relevant evidence as to what took place at the time when he and the applicant were arrested.[56] 42.After hearing submissions from counsel, the judge refused the application, being satisfied that the purpose of calling PW18 was not to bring before the jury a prior inconsistent statement which was inadmissible to prove facts against the applicant.[57] 43.PW18 was called as a witness and initially answered questions in relation to his arrest together with the applicant in the small hours on 10 June 2015, inside a female toilet at Cafeteria Bay, for the offence of possession of a dangerous drug.[58] In the course of being questioned, he stated that he did not want to give evidence, and was reminded he had been given an immunity from prosecution on condition that he give full and true evidence at the trial of the applicant.[59] He continued to say that he did not want to give evidence or could not remember, but from time to time he would answer questions. He said at the time of his arrest he was intoxicated by drugs, and hence could not remember what had happened.[60] He said he went with the applicant to Tuen Mun only because he wanted to get a free supply of drugs from him.[61] He added that he did whatever he was told by the police. Upon further questioning about matters concerning the applicant, he asserted that he did not want to answer questions and could not remember anything. 44.This resulted in an application by the prosecution to treat PW18 as a hostile witness.[62] Mr Sherry in response suggested that PW18 refresh his memory by reading his non-prejudicial statement in the following exchange with the judge:
45.PW18 was shown his statement and responded by saying that he did not want to be asked anything. He said he was “under the drug spell” and did not remember anything.[64] He was asked if he wished to refresh his memory by reading his statement but he said no.[65] 46.The judge granted the application to treat PW18 as a hostile witness.[66] 47.Mr Donald then proceeded to cross-examine PW18. He showed PW18 his witness statement but PW18 said he did not want to answer any questions. At one stage, PW18 acknowledged that the signature on the witness statement was his but added that he did not remember anything as he was “under the drug spell” and “really scared”. He said that he was desperately waiting for the police to release him so he could go and have drugs.[67] 48.Mr Donald put to PW18 matters that he had mentioned in his witness statement,[68] such as how he befriended the applicant,[69] what the applicant told him about his volatile relationship with the deceased,[70] the confessions made by the applicant about beating the deceased to death[71] and the applicant’s plan to flee to China.[72] However, when these matters were put to PW18, he said he did not wish to answer. 49.Mr Sherry raised no objection to the questioning by Mr Donald, or to the approach taken in dealing with PW18 after he had been declared hostile. 50.When it came to cross-examination by the defence, only a few questions were asked of PW18, who said he did not want to be asked anything. The following exchange took place:
The forensic evidence 51.It was an admitted fact that a forensic examination was carried out on a number of exhibits seized by the police. It was determined by the government forensic pathologist that flakes of brown polyurethane foam, which were taken from the mattress cover that was wrapped around the deceased, matched the foam of the mattress that was located at the rooftop of 1 Changsha Street. He also determined that flakes from a mattress cover matched flakes that were found on a pair of blue jeans and a black T-shirt which were found inside a rucksack belonging to the applicant. The rucksack had been seized from the applicant when he was arrested.[74] 52.Furthermore, evidence from a government chemist established that the mattress cover had corresponding burn marks in identical positions with the mattress.[75] It was therefore incontrovertible that the mattress cover came from the mattress on the rooftop. The autopsy 53.Dr Chiao in his autopsy report[76] found the deceased had sustained extensive recent injuries (72 items) all over her body, including lacerations to her scalp, cut wounds on her face and upper limbs, and bruises all over her body. Almost all of the deceased’s ribs were fractured, except the left first and right first to third ribs, with 50 ml of blood detected in her right chest cavity.[77] 54.Dr Chiao was of the view that the cause of the deceased’s death was “multiple injuries”. The extensive injuries found on her body were consistent with them being caused by an assault on her. The multiple shallow cuts on her upper limbs, mainly on the back of her forearms and hands, were consistent with being defensive injuries, resulting from fending off a sharp weapon during an attack. Fractures of ribs, to the extent they had occurred, meant the deceased would have suffered from severe respiratory dysfunction prior to her eventual death. Although there was “Ice” detected in her cavity fluid, indicating she may have consumed Ice sometime before her death, it remained unclear whether she was in fact under the influence of “Ice” at the time of her death. 55.Dr Chiao testified the injuries found on the deceased were recent injuries, in that they were inflicted or took place within one day of the autopsy.[78] They were not caused by a single impact, nor a single fall, but were a result of assaults that came from different directions.[79] Defensive injuries found on her arms indicated she had to put up her arms to fend off an attack with a sharp weapon.[80] 56.Dr Chiao explained that none of the injuries alone would have been severe enough to cause instantaneous death, and had the deceased got earlier medical attention, she would have had a chance of surviving.[81] However, he was of the view the deceased died of “multiple injuries” because both lacerations on the scalp (that could have caused considerable loss of blood if not treated), and the rib fractures (that could have caused respiratory dysfunction) together could have contributed to her death.[82] 57.In response to the applicant’s account of his assault on the deceased in the three video records of interview and the video reconstruction, Dr Chiao expressed the following view:[83]
58.On the assumption the injuries were all caused by falling down the stairs, Dr Chiao said it would be very difficult for her to get up, go upstairs and smoke Ice again because the extensive rib fractures would have caused her difficulty in breathing immediately.[90] 59.Dr Chiao said there was obvious bleeding at the site of the fractures, which showed that they were made when the deceased was still alive.[91] He did not agree that the injuries, in particular the fractures of the ribs, could have been caused after her death when her body was being carried from the roof to the scene.[92] 60.Dr Chiao ruled out the possibility of an overdose of Ice being the ultimate cause of death,[93] because there was no pulmonary oedema, brain haemorrhage or death of heart cells (the signs of death from a drug overdose).[94] The defence case 61.The applicant did not give evidence, although he relied on the answers that he gave in his video records of interview. He called a defence expert witness, Dr Beh Swan Lip, (DW1), a pathologist. 62.In his testimony, Dr Beh said he was unable to pinpoint the critical injuries which would have caused the death of the deceased, as many of them were potentially fatal.[95] However, he opined that the minor bleeding in the right thoracic cavity suggested the injury to the ribs had occurred shortly before death, while no bleeding on the other side suggested the injury probably occurred after death.[96] He further said the fractures to the ribs could have happened whilst the deceased was being conveyed, or dragged down the staircase to the street, if the front or back of the torso was hitting and bumping against the steps.[97] 63.Dr Beh agreed that in the autopsy conducted by Dr Chiao, no sign of Ice overdose was found.[98] However, abnormal heart rhythm could be a possible cause of death in a case of an overdose of Ice, but it was not something that would be revealed by an autopsy.[99] He also agreed that the death of muscle cells was another sign to look for in an overdose case, but it would be difficult to assess the state of the muscle cells because the body was decomposed.[100] He accepted it was not possible to test this as a cause of death because of the state of decomposition, and even if there was indeed a high reading, because of decomposition one would not be able to interpret it.[101] 64.Dr Beh explained that overdose of Ice might also lead to high fever, which would damage the brain, but added that “we will never know in this case.”[102] He could not rule out the possibility the deceased died of an overdose of Ice, because “we just don’t have sufficient information.”[103] He nevertheless agreed under cross-examination that the injuries found on the deceased also supported the conclusion she could have been taken down to the street with potentially fatal injuries and left to die.[104] He agreed with Dr Chiao that the cause of death was multiple injuries;[105] just slapping and falling down a flight of stairs would not result in all the extensive injuries found on the body;[106] and the 72 injuries to the deceased were definitely not self-inflicted and were consistent with her being attacked.[107] He accepted the wounds on the deceased’s arms were consistent with defensive injuries.[108] 65.Dr Beh opined there was a possibility the body was wrapped after death.[109] He accepted the rib fractures would have been extremely painful and the deceased would have been struggling to breathe. However, he could not say for sure the deceased would not have been able to smoke Ice as “drug addicts behave strangely, unlike normal people.”[110] 66.In his closing address, Mr Sherry highlighted to the jury what the applicant had said in his video records of interview. The applicant stated that he was with the deceased at the rooftop smoking Ice in the evening of Saturday, 6 June 2015 and left sometime in the morning on Sunday, 7 June 2015. Mr Sherry noted that this had been supported by CCTV footage. The applicant stated that after he left and checked into the guesthouse, he did not return to the rooftop. 67.Mr Sherry submitted that because kicking the deceased down a flight of stairs could not have caused all the injuries she sustained, there was a possibility an unknown third party might have come along, after the applicant had left, and killed the deceased and disposed of her body in the street.[111] It was an admitted fact in the defence case that the building located at 1 Changsha Street was an old-style walk-up tenement building, with 12 flights of stairs of approximately 109 steps from the street level to the roof top.[112] It had been accepted that the single flight of stairs from the rooftop consisted of 9 steps and was 144 cm in height. The applicant had stated in his out-of-court statements that he had quarrelled with the deceased because she had obtained drugs from a male downstairs. It was also an admitted fact in the defence case that a Pakistani male lived in the building at 1 Changsha Street who knew the applicant and the deceased, and that the police had not investigated another Pakistani male who also lived in the building. 68.Mr Sherry drew the jury’s attention to the occasions when the applicant had stated in his video records of interview that he did not kill the deceased. He also noted that the applicant denied making the confession as claimed in the video record of interview of PW18. He further told the jury that they should reject outright the evidence of PW18 because of his unwillingness to answer questions, although he reminded the jury that PW18 said the following about his video record of interview: “That’s when I was arrested by the police. I was frightened. I was a drug addict. I just wanted to get more drugs and get it over and done with”. 69.Mr Sherry also in his closing address referred to the alleged confession by the applicant to PW18, who he submitted to the jury was lying:
70.Mr Sherry also submitted in his closing address that the deceased could have died from an overdose of Ice, for which he relied on Dr Beh’s evidence. The grounds of appeal 71.Mr Beel, on the applicant’s behalf, initially advanced four grounds of appeal but after consideration of the grounds he limited them to three. 72.The ground that was not pursued was Ground 3.[114] That ground alleged the judge erred in allowing the reception of prejudicial hearsay evidence from PW12, PW13 and PW15, which did not go to the deceased’s state of mind, nor provide background evidence, and may have led to an impermissible line of reasoning by the jury as to propensity, which could not be cured by a direction from the judge. 73.Ground 1 concerns the subject of inferences. It is complained:
74.Ground 2 concerns the subject of inadmissible evidence. It is complained the judge erred in law and wrongly allowed for inadmissible and highly prejudicial evidence to be put before the jury, namely:
the reception of which could not properly be cured by any direction from the judge. 75.Ground 4 concerns the subject of expert medical evidence. It is complained the judge erred in law and made a material misdirection to the jury in relation to the expert testimony given by Dr Beh. In particular, the judge failed to properly and fairly place Dr Beh’s evidence in juxtaposition to the expert testimony of Dr Chiao. 76.We will deal with each ground in turn. Ground 1: Inferences 77.This ground is broken up into three parts. Ground 1A 78.In Ground 1A, it is contended the judge failed to give to the jury any or any sufficient directions on the process of inferential reasoning. 79.Mr Beel argues this was a case where a direction on inferences was necessary because there was no direct evidence of guilt, and consequently the prosecution could only invite the jury to draw such an inference from the primary facts proved. He relies on various statements of principle concerning inferential reasoning in Tang Kwok Wah v HKSAR.[115] The difficulty with this argument is that the judge did give the jury a proper direction on the drawing of inferences. 80.As a fallback, Mr Beel argues because the direction was given before the judge gave the standard direction on the burden and standard of proof, it was therefore unhelpful to the jury. He adds she did not give the direction in the proper context of the case, nor did she give easily understandable everyday situations or examples to the jury so they could better understand the concept of inferences. He claims this confused the jury and did not assist them at all. 81.Mr Beel also argues that the judge erred in law by not explaining to the jury what “reasonable” meant in the context of the test of drawing of inferences, that they could only do so if it was the “only reasonable inference from the proven facts”. 82.Ms Vinci Lam, SC, for the respondent,[116] in response submits it is not normally necessary to give a special direction to a jury on how they should approach circumstantial evidence. She contends that where the prosecution case depends on circumstantial evidence, it is usually sufficient for the jury to be directed that they may not convict an accused unless they are sure of guilt. She adds, in exceptional circumstances, where a special direction on the drawing of inferences is called for, it is normally sufficient to tell the jury that no inference can be drawn against the accused unless it is the only reasonable one to be drawn. 83.Ms Lam submits there is no legal requirement that the jury should be given some explanation as to what the word “reasonable” means in a legal context. She points out that “reasonable” is an ordinary word which does not require any further explanation. She adds that none of the authorities that address the issue of inferential reasoning give the word “reasonable” a special meaning in this context. 84.Ms Lam refers to HKSAR v Lee Cheuk Hei,[117] where the Court of Appeal, having reviewed the decision of Nguyen Anh Nga v HKSAR,[118] noted that it did not change the law in respect of the legal content of the directions that are required in relation to inferences, which should be tailored to the circumstances of the case. She, therefore, dismisses the suggestion the judge gave inaccurate or inadequate directions on inferences to the jury. She points out the judge repeatedly reminded the jury that they could only draw an inference against the applicant if it was the only reasonable inference to draw from the facts proved. She submits that the jury would have been under no misapprehension as to when and how they could draw an adverse inference against the applicant. Ground 1B 85.In Ground 1B, it is argued the judge’s dismissal and criticism of the submission advanced by the defence, that a third party might have been responsible for the death of the deceased, suggested to the jury there was a burden of proof on the defence, which amounted to a material misdirection. 86.Mr Beel submits that even though the judge had put forward to the jury the defence contention that a third party might have been responsible for the death of the deceased, she also warned the jury not to speculate, “which means thinking up theories without hard evidence to back it up”.[119] She also repeated the term “hard evidence” in this context on a few other occasions.[120] He argues that the use of the term “hard evidence” implies a standard such as “good” or “strong” evidence, which suggested to the jury that it was of a different standard to mere evidence, and hence wrongly implied or placed a burden on the defence to prove, with “hard evidence”, that a third party might have killed the deceased. 87.Mr Beel further submits that although the judge initially left the issue to the jury to consider, he then expressly directed them to specifically disregard it by reminding them to look for “hard evidence” and asking the rhetorical question: “Is that a form of speculation, members of the jury?” 88.Mr Beel contends there was a gap in time between the last contact the applicant had with the deceased and the discovery of her body, and therefore it was not speculation for the defence to raise such a possibility with the jury. He further contends that the way the judge directed the jury on the matter was not fair comment by her, but rather a direction on the law. He submits that it was for the prosecution to satisfy the jury that there was no third party involvement or other intervening act. He refers to DPP v Woolmington.[121] It was, therefore, a material misdirection for the judge to imply that there was a burden upon the defence to produce evidence of a third party’s involvement before it could be considered. 89.Ms Lam in response submits that the impugned parts of the direction needed to be placed and understood in the overall context of the summing-up as suggested in HKSAR v Fok Ka Po Joe.[122] The judge at the outset of the summing-up directed the jury that the issue was whether the applicant inflicted the fatal wounds on the deceased, and that they needed to be sure that it was the applicant who caused the injuries on the deceased which led to her death.[123] The judge correctly directed the jury on the burden and standard of proof,[124] and explained that if they were not sure of any of the elements of the offence of murder, the applicant should be found not guilty.[125] 90.Ms Lam further submits that when the judge first mentioned “hard evidence”, she was actually distinguishing between drawing an inference on the one hand, and engaging in speculation on the other.[126] In using the term “hard evidence”, the judge was making no more than a reference to “reliable evidence”.[127] She contends the judge was entitled to ask the jury not to speculate in the absence of “reliable evidence”, and no criticism could be made of it. As the applicant concedes, no complaint was made as to the judge’s directions on the burden of proof, and the reference to “hard evidence” by the judge therefore could not be construed as implying any reversal of burden resulting in prejudice to the applicant. Ground 1C 91.In Ground 1C, it is argued that the judge erred in law by failing to properly or adequately sum up the defence case to the jury, in particular, she failed to properly set out the two possible defence scenarios that: (i) a third party was responsible for the death of the deceased; and (ii) in the alternative, the deceased had died from a drug overdose, in the process of which she suffered external injuries and had been subsequently moved by a third party thereby causing further injuries to her ribs. 92.Mr Beel submits that there was evidence to support the two defence scenarios. This evidence consisted of the following:
93.Mr Beel submits, therefore, the judge’s direction to the jury to the effect that there was no evidence to support these two possible scenarios was a material misdirection. 94.Ms Lam in response submits the judge did not err in directing the jury that the suggestion of “killing by a third party” was mere speculation. Despite the various matters that the applicant seeks to rely upon, she submits that the estimated time of death was no more than an estimate, and the mere fact that he checked into a room at about 11:30 am on 7 June 2015, the street cleaner’s general evidence as to when she first noticed the mattress cover, and that there were Pakistanis living in the same building, would not have elevated such a suggestion to a realistic possibility that obligated the judge to leave it to the jury to consider. 95.Ms Lam further submits that the test laid down by the Court of Final Appeal in HKSAR v Ho Hoi Shing[130] would also apply in determining the threshold of putting a defence case to the jury. As the judge rightly pointed out to the jury that, although the rooftop was an open area to which anybody could have access, it made no sense for a third party to have killed the deceased on the rooftop, rolled her up in the mattress cover, and cleaned up the place before disposing of her body in the street.[131] On the evidence, it is submitted that the judge rightly categorized the defence suggestion as mere speculation. Discussion 96.The judge gave clear and precise directions to the jury on drawing inferences. Mr Beel’s argument is that the judge failed to give an example of drawing an inference and failed to define what was meant by the word “reasonable” when summing-up to the jury. 97.The judge told the jury:
98.The judge went on to explain to the jury the importance of the meaning “the only reasonable inference”, and this is apparent from her comments in the following passage:
99.Throughout the summing-up, the judge constantly reminded the jury that they could only draw an inference if it was “the only reasonable inference to draw from the proven facts.”[134] There was no need to give examples as the judge made it abundantly clear to the jury the approach they should take when drawing an inference. 100.Nor was there any need for the judge to explain to the jury what was meant by the word “reasonable”. It is a word that is plainly and readily understood and does not have any meaning beyond its ordinary one in the context of the phrase “the only reasonable inference.” We note Mr Beel was unable to produce any authority to support his proposition that “reasonable” had a special meaning in the context of this phrase which needed to be defined for the jury. 101.At the conclusion of the summing-up, the judge informed the jury if they had any query on the law or the evidence they could submit a written question to her. We note no query was raised by the jury with the judge about the drawing of inferences. 102.It is also complained the judge failed to fairly present the defence case to the jury. The defence case had various layers to it. First, it was advanced by the applicant that he assaulted the deceased prior to her death but left her alive and did not kill her. It was also submitted that the applicant had quarrelled with the deceased and she had provoked him, leaving open a finding of manslaughter by reason of provocation or by an unlawful act. Secondly, the deceased was killed by an unknown third party. Thirdly, the deceased died of a drug overdose, ostensibly relying on Dr Beh’s evidence. 103.In his closing address to the jury, Mr Sherry submitted that a third party “may have been” responsible for the death of the deceased, or that the deceased may have died of a drug overdose.[135] However, it is in respect of the judge’s handling of the defence contention that a third party had been responsible for the death of the deceased that Mr Beel is most critical. 104.Mr Beel argues the judge’s dismissal and criticism of the defence contention implied there was a burden of proof placed upon the defence, which amounted to a material misdirection. He submits that when the judge put forward to the jury the defence contention that a third party had been responsible for the death of the deceased, she also warned the jury not to speculate and added, “which means thinking up theories without hard evidence to back it up.”[136] He notes the judge repeated the term “hard evidence” on several other occasions and submits the use of the term implies a standard, such as “good” or “strong” evidence, and thereby suggested to the jury this was a different standard to mere evidence. He argues this wrongly placed or implied a burden on the defence to prove with “hard evidence” that a third party had been responsible for the death of the deceased. 105.It is appropriate to refer to the judgment of Ma CJ, with whom the other judges agreed, in HKSAR v Chau Yui Ming,[137] in which he set out the circumstances when it would be appropriate for a trial court to address defence scenarios and alternative verdicts. He said:
Ma CJ then went on to note that Lord Rodger of Earlsferry in R v Coutts referred to a “viable” alternative verdict. [139] 106.The principles as stated by Lord Bingham of Cornhill, which Ma CJ quoted with approval, make it clear that the obligation on a trial judge is to leave to the jury, “subject to any appropriate caution or warning, any obvious alternative offence which there is evidence to support.” The rule is confined to alternatives that are “obviously raised by the evidence”, and not to alternatives “which ingenious counsel may identify through diligent research after the trial.” 107.It was put to the jury by Mr Donald that there was no evidence of the involvement of a third male, while Mr Sherry in his closing address submitted that they “heard the evidence that there is a third person. You have heard evidence of arguments concerning this third person. It is an admitted fact that a Pakistani male lives downstairs and not just one but two.”[140] Mr Sherry referred to the evidence of the applicant previously assaulting the deceased. It was the defence case, and this was highlighted by the applicant in his video records of interview, that because of the history of fighting between the applicant and the deceased, he moved out of their residence and checked into a guesthouse in Chungking Mansions. It was also the defence case that the defensive injuries on the deceased may have been inflicted on previous occasions when the applicant assaulted the deceased.[141] To this extent the defence were relying on the previous physical altercations between the applicant and the deceased. 108.It needs to be borne in mind that the reference to a third person only arose in the context of the applicant’s out-of-court statements that he had quarrelled with the deceased about her relationship with a Pakistani male who lived downstairs, from whom she would obtain drugs. In other words, it was only relevant in relation to the possible defence of provocation and it was not suggested that anything else had taken place or occurred between the other Pakistani male and the deceased that in some way connected the other Pakistani male to her killing.[142] It had also been stated in the defence admitted facts that two other Pakistani males lived in the building but that can hardly be said to be a matter of any real factual significance. 109.There was no credible evidence of the involvement of an unknown third party in the killing of the deceased. The issue for the jury was whether they were sure on the evidence the applicant was guilty or not guilty of the murder of the deceased. 110.The suggestion that the deceased died of a drug overdose flies in the face of the multiple injuries the deceased sustained (72 injuries to different parts of her body, causing internal and external injuries, with nearly all of her ribs fractured), including extensive defensive injuries, which indicated she tried to fend off a repeated attack on her. The defence pathologist, Dr Beh, not only acknowledged that the multiple injuries sustained by the deceased were due to being beaten, but he also agreed the deceased had defensive wounds.[143] 111.We find no substance in this ground of appeal. Ground 2 112.By Ground 2, it is argued the judge erred in law by wrongly allowing inadmissible and highly prejudicial evidence to be put before the jury. This argument concerns the allegations made by PW18 in his video record of interview, which had been played to the applicant during his third video record of interview, and the written statement of PW18, which had been read out by the prosecution during the examination-in-chief of PW18, which was not adopted by him. 113.Mr Beel submits that the reception of this evidence should not have been allowed and could not be properly cured by a direction from the judge to the jury. He notes that PW18 had been declared a hostile witness in the first trial. On that basis, there was a strong possibility that when PW18 was called to testify in the second trial, he would again be treated as a hostile witness. He submits that the third video record of interview should not have been played to the jury, unless and until, PW18 had adopted the assertions attributed to him in the interview. However, when PW18 testified at trial, he did not come up to proof in respect of the alleged confession made by the applicant to him. He further submits that the third video record of interview should not have been put before the jury as it had no probative or evidential value. 114.We observe at this juncture that the applicant’s third video record of interview was adduced into evidence by way of an admitted fact and played before the jury, without objection, when the police officer who conducted the interview testified at trial. 115.Mr Beel contends the defence objected to the prosecution knowingly calling a witness, who would be hostile, on the basis that they were endeavouring to put before the jury a prior statement that was inadmissible to prove facts against the applicant. He refers to the principle to this effect stated in R v Blewitt.[144] 116.Whilst there was objection by the defence to calling PW18 as a witness, the judge, after hearing argument on the matter, found that the prosecution were not merely calling PW18 in relation to what was said to him by the applicant, but also to give relevant evidence in relation to his activities with the applicant soon after the death of the deceased and the circumstances of them going to Tuen Mun, where they were apprehended by the police. In his evidence, PW18 confirmed that he was arrested with the applicant at the relevant time and location; that they were in possession of drugs; and that he met the applicant at Chungking Mansions prior to going to Tuen Mun.[145] He had also expressed his reluctance to testify; that at the time of this incident he was intoxicated; that he did not recall anything that had happened; that he was with the applicant for free drugs; and that he could not recall why they went to Tuen Mun.[146] Similarly, when his statement was put to him pursuant to the request of defence counsel, PW18 refused to answer questions.[147] 117.Mr Beel complains that the judge when ruling that PW18 should be treated as a hostile witness, failed to lay down any restrictions or parameters on the nature and form of the questions to be asked of him. It is submitted that the judge would have been aware of the potential hostility of PW18, and the undesirable consequences of putting the issue of the alleged admissions before the jury in circumstances in which they would serve no evidential value. Despite PW18’s unequivocal reluctance to answer questions, the prosecution kept on reading his statement in full in front of the jury. 118.In the circumstances, Mr Beel argues the judge should have considered issuing a warning for contempt, thus allowing PW18 to reflect on the consequences of his actions before considering whether or not to proceed on the basis that he was a hostile witness. That was an approach suggested by the English Court of Appeal in R v Thompson.[148] He also relies on the decision of the English Court of Appeal in R v Honeyghon and Sayles,[149] in advancing his argument that putting to PW18 his prior statement, an undisputed hostile witness, for no real purpose, amounted to putting in prejudicial matters before the jury that had no probative value. This was a course which the judge should not have allowed. 119.In her summing-up to the jury, the judge directed them in line with Specimen Directions 26.1 as to PW18’s testimony and assertions in his video record of interview, but Mr Beel argues that these directions did not apply, as they are meant to deal with a situation where a witness has given evidence inconsistent with his prior statement, which is put to him to assess his reliability. However, no issue of reliability arose because there was no testimony on the main issue for which PW18 was called to testify. Notwithstanding that the judge told the jury that what was contained in the statement was not evidence, Mr Beel submits she did not make it clear to the jury what evidence the court was referring to when she said “… so you may think you should reject his evidence altogether and not rely on anything that he has said.”[150] 120.The terms of the judge’s remark are important. What she said was:
121.It is contended by Mr Beel that by placing the alleged admissions to PW18 before the jury, no direction by the judge could have cured the prejudice that resulted. He submits the jury should have been discharged. 122.In respect of the allegations made by PW18 in his video record of interview, which had been played to the applicant during the third video record of interview, it is submitted by Ms Lam that it is a matter of some significance that the third video record of interview was adduced into evidence by way of an admitted fact.[152] Mr Sherry on behalf of the applicant agreed to adduce into evidence by way of admitted fact the third video record of interview, and made no attempt to redact the impugned parts. In this regard, it is also important to note that the applicant has not in the present application suggested that his trial counsel was flagrantly incompetent. It has to be assumed, therefore, that this was a tactical decision made by experienced counsel as part of the defence case. 123.It is submitted by Ms Lam that a voluntary, mixed statement should be before the court in order to place whatever admissions it contains in context, to give a balanced picture and to enable the jury to consider the entirety of its contents in deciding where the truth lies; and even a voluntary, exculpatory statement would be admissible for the purpose of showing the reaction of an accused to police enquiries.[153] Ms Lam submits that the admissibility of the third video record of interview must be considered in the context of the present case where the applicant, had in his earlier video records of interview given mixed statements to the effect that he had arguments with the deceased and had assaulted her without killing her. Also, as the judge rightly observed in her summing-up, the purpose of replaying PW18’s video record of interview to the applicant was to give him the opportunity to respond to the allegations made by PW18,[154] which the applicant said were lies.[155] On that basis, she argues that the third video record of interview was admissible. 124.In respect of the allegations made by PW18 in his written statement that was read by prosecuting counsel in front of the jury, Ms Lam accepts that Blewitt is good law and it would be improper for that to be done for the sole purpose of getting before the jury a prior inconsistent statement which was inadmissible to prove facts against the applicant. Nevertheless, Ms Lam submits that this was not the situation in the present case. PW18 was expected to give factual evidence as to how he met the applicant at the guesthouse where he was staying after the deceased’s body was found; what the applicant confessed to him about beating the deceased before she died; the applicant’s plan to go to Tuen Mun and leave Hong Kong, taking with him his personal belongings packed in his bag; how he was invited to travel to Tuen Mun with applicant; and how he and the applicant ended up in the female toilet on the beach consuming drugs. In Blewitt, the evidence which the hostile witness in that case was called to give was that the accused went into hiding, rather than to introduce the prior inconsistent statement of the hostile witness. Accordingly, the prosecution was entitled to adduce such evidence. 125.Ms Lam submits that in similar circumstances, the purpose of calling PW18 was primarily to show the applicant’s intention to flee, and to ask about any explanations given by the applicant for so doing. On this basis, the reasoning in Blewitt applies to the present case and there was nothing improper for prosecuting counsel to examine PW18 with reference to his prior inconsistent statement. 126.Ms Lam further submits that one could not have reasonably anticipated that PW18 would be hostile in the second trial, as he had agreed with most of his witness statement at the first trial, except what the applicant allegedly confessed to him. In other words, PW18 had the potential to be a hostile witness but that did not prevent the prosecution from calling him to testify. Ms Lam relies on R v Saheed Alade Olumegbon[156] for the authority that the prosecution are entitled to call a witness who may have the potential to be hostile and to see whether in fact he will be, notwithstanding that he has earlier given evidence after being declared hostile. The judge has a duty to encourage witnesses to perform their duty to help the criminal process, and to ensure that evidence which is of probative value is not substantially outweighed by its prejudicial effect and to strike an appropriate balance. 127.It was submitted that the mere fact that the applicant refused to answer questions whilst putting to him his previous statement would serve no evidential purpose. The trial judge retains the discretion in common law to allow cross-examination of a witness who refused to cooperate: Thompson, or professed to have no recollection: Honeyghon and Sayles – which was exactly what happened in the present case with PW18, who claimed that he was intoxicated and could not remember anything.[157] In addition, as PW18 claimed that he was assaulted by the police in the course of investigation, which was similar to the applicant’s allegation against the police, it was submitted that the prosecution was therefore entitled to cross-examine PW18 in order to undermine any of his evidence that might lend support to the applicant’s case of police impropriety. 128.During his evidence, PW18 stated that he wished to be punished by the court rather than give evidence. Ms Lam makes the point that it would have been in the circumstances of this case unrealistic for the judge to issue a warning for contempt. 129.Ms Lam contends that, without the benefit of hindsight at that time, no one in the trial would have reasonably expected that PW18 would turn hostile to the extent that he did not agree with most of his statement. Notwithstanding the claim that prejudicial information had been placed before the jury, it is submitted that defence counsel did not make any application to discharge the jury. On the other hand, the jury was reminded by both prosecuting and defence counsel in their respective closing addresses about the evidential value of PW18’s testimony[158] and, more importantly, the judge in her summing-up directed the jury that what PW18 said in his statement and video record of interview was not evidence as he had not adopted it. She even reminded the jury that they could consider rejecting his evidence altogether and not rely on anything he had said.[159] Ms Lam adds that there was no doubt that the jury would have followed the judge’s directions and simply ignored PW18’s evidence altogether. Accordingly, any prejudice that may have resulted to the applicant would have been remedied. Discussion 130.The decision to treat a witness as hostile brings into conflict two important principles of the criminal law: on the one hand the court must encourage a citizen to perform his or her duty to assist in the detection of crime and the prosecution of offenders and must not appear readily to accept a reluctance or refusal to give evidence which it is believed can serve the interests of justice, and, on the other hand, in the interests of the fairness of the proceedings as a whole, the court has a duty to ensure that evidence should not be led or statements made whose value in proof of the issues the jury have to decide was substantially outweighed by the prejudice they were likely to cause.[160] 131.It is a principle of the common law that a party may not cross-examine his own witness unless the court is of the opinion that he is hostile.[161] A witness is hostile if he is “not desirous of telling the truth to the court at the instance of the party calling him.”[162] 132.The common law has been supplemented by section 12 of the Evidence Ordinance, Cap 8, which reads:
133.In R v Thompson (1977) 64 Cr App R 96, the English Court of Appeal held that if a witness, by his conduct in the witness box, shows himself decidedly adverse, it is in the discretion of the trial judge at common law to allow him or her to be cross-examined, but in each particular case there must be some discretion in the judge as to the mode in which the examination should be conducted, in order to best answer the purposes of justice. Accordingly, a witness who retracts evidence supportive of the prosecution’s case or purports to have no recollection, may be treated as hostile, and the prosecution is entitled to call such a witness to explore the possibility that the witness will return to his original statement.[163] 134.It is clearly apparent in the way PW18 conducted himself that he displayed unmistakable signs of hostility.[164] In respect of the admissibility of the third video record of interview, it must be borne in mind that the applicant did not testify or call any factual witness. The three records of interview thus represented his case and were vital in presenting his defence to the jury. This may explain the tactical decision by the defence not to raise any objection to the playing of the third video record of interview. In the earlier video records of interview the applicant exonerated himself, and in the third video record of interview he gave his response to the allegations made by PW18 that he killed the deceased. On that basis, the third video record of interview was admissible and it was not necessary for the prosecution to wait until PW18 adopted it. In fact, the judge had explained to the jury the purpose of showing PW18’s evidence to the applicant. 135.However, because of what had taken place in respect of PW18, the judge emphasised to the jury that what he said was not evidence and should not be relied on. Having previously explained to the jury that they must decide the case only on the evidence which had been placed before them in court,[165] the judge then directed the jury in clear terms as to the approach they should take in relation to PW18’s evidence:
136.It seems to us that the judge made it perfectly clear to the jury the way in which they should approach the evidence or lack of it of PW18. She followed Specimen Direction 26.l in respect of a hostile witness.[167] 137.There was nothing improper for the prosecution to call PW18 in the second trial, despite his apparent reluctance in the first trial. In R v Mann,[168] Lord Widgery LCJ said:
138.In Honeyghon and Sayles, the court referred to earlier cases and came to the view that:
139.The mere fact that PW18 had been reluctant to testify in the first trial was not necessarily a sufficient reason to preclude the prosecution from calling him in the second trial. It would depend upon the particular circumstances relevant to this issue. Although as noted in Honeyghon and Sayles, this practice is subject to the rule laid down in Blewitt that it would be wrong in principle for the prosecution to knowingly call a witness who was hostile so that it could put before the jury a prior statement that was in itself inadmissible. As pointed out by Ms Lam, PW18 was called to give evidence on other factual matters that were less controversial than the alleged confession by the applicant. 140.The applicant also submits that given the attitude of PW18 in the examination in chief in the second trial, the judge should have considered issuing a warning of contempt before deciding whether or not to proceed with him on the basis of hostile witness. But this proposition is not supported by Honeyghon and Sayles. In that case, a witness who gave an inconsistent statement and a witness who said he forgot what happened were treated no differently, whilst a witness who simply refused to speak at all might be dealt with by way of “contempt”:
141.However, what needs to be emphasised is what the Court held in the following paragraph:
142.The judge, in exercising her discretion in favour for PW18 to be cross-examined on his prior inconsistent statement, might have also been influenced by the fact that the third video record of interview was already adduced into evidence through the admitted facts, which included what PW18 had said in his statement, and the defence had made no application to redact the alleged confession to PW18 from the third video record of interview. The content of PW18’s statement was already before the jury when the judge permitted that PW18 be cross-examined in relation to it. 143.In accordance with the practice as laid down in HKSAR v Apelete No 2,[170] Mr Beel confirmed before us that he had spoken to trial counsel for the applicant in relation to the conduct of the defence case. Having had the benefit of speaking to him, he stressed that he was not levelling any criticism against his handling of the defence case, but nevertheless sought to question the fairness to the applicant of inadmissible and highly prejudicial evidence going before the jury. 144.The way the defence case was conducted and what was in issue at trial has an important bearing on the arguments now advanced by Mr Beel. 145.Mr Beel did not put before the Court what had taken place in the first trial. In fact, he stated that he preferred this information not be before us. We consider it is important to know what took place in that trial in order to understand the defence stance in relation to PW18 at the second trial.[171] Subsequently, it reveals that the defence did not go into the second trial blind as to the possibility of PW18 being uncooperative as a prosecution witness. That fact is clearly apparent from the record of the proceedings. 146.The ultimate issue therefore becomes whether the judge’s directions to the jury in terms of Specimen Direction 26.1 were sufficient to avoid the misuse by the jury of PW18’s oral testimony and what was contained in the third video record of interview. In considering this matter, it should be noted that the judge in her summing-up, clearly avoided mentioning anything more than what was necessary about PW18 and made no mention at all of what was said by him in court. In fact, she directed them to reject his evidence and not rely on anything he said at all.[172] 147.While the circumstances relating to PW18 were unusual, when considered in their proper context, we are satisfied that no material irregularity arose to render the trial unsafe or unsatisfactory. Ground 4 148.In Ground 4, it is contended that the evidence of the two pathologists conflicted with each other as to the deceased’s cause of death and this had not been properly put before the jury by the judge. 149.Mr Beel submits that the evidence of Dr Chiao and Dr Beh was fundamental for the jury to understand whether the deceased had died as a direct consequence of violence inflicted upon her (as opined by Dr Chiao) or whether the deceased had possibly died from an accidental cause (as opined by Dr Beh). 150.In supporting this argument, Mr Beel gives an outline of what he contends was the correct account of the respective opinions of Dr Chiao and Dr Beh. 151.In respect of Dr Chiao’s expert evidence, Mr Beel notes that Dr Chiao was of the opinion that the cause of death was “multiple injuries”, although there was no injury severe enough to cause instantaneous death. Dr Chiao explained the overall pattern of the deceased’s injuries was consistent with having been assaulted and there was no evidence the deceased died from a drug overdose. 152.Mr Beel highlights that Dr Chiao agreed that the laceration injury pattern to the deceased’s head could have been caused by repeated falls by a person who was intoxicated. He notes Dr Chiao agreed that the applicant’s fight with the deceased or the deceased falling down a flight of stairs as claimed by the applicant could have caused lacerations, bruises and abrasions to her body, but could not satisfactorily explain all of her injuries, in particular the extent of the fractures to her ribs. He notes Dr Chiao was of the view the lacerations to the deceased’s head would have resulted in a lot of blood loss, and taken together with the fractured ribs, could have contributed to her ultimate death. 153.In respect of Dr Beh’s expert evidence, Mr Beel notes Dr Beh was of the view that whilst the combination of the lacerations to the head and the fractures to the ribs were potentially fatal, they were not injuries which would have prevented a conscious person from obtaining help from someone. 154.As for the head injuries, Mr Beel notes Dr Beh observed there was no evidence of bleeding inside the deceased’s skull, resulting in loss of consciousness and an inability to breathe, thereby causing death. It was Dr Beh’s opinion there was no evidence to show the deceased had lost a lot of blood. 155.As for the fractures to the ribs, Mr Beel notes Dr Beh observed that as there was 50 mls of blood in the chest cavity there were two possible scenarios: (i) death occurred very soon after the fractures, or (ii) the fractures were post-mortem and unrelated to death. If the fractures of the ribs were post-mortem, this could have been caused by the deceased’s body being dragged down the flight of stairs of the building, consisting of 109 stairs. 156.In respect of the presence of Ice in the deceased, Mr Beel notes Dr Beh agreed with Dr Chiao’s opinion as to the possible causes of death by a drug overdose, which were not present, however Dr Beh was of the opinion that another cause of death by a drug overdose would be from heart failure, which could not be detected by an autopsy. Dr Beh could not rule out the possibility that death had resulted from a drug overdose. 157.In light of Mr Beel’s description of the evidence of the two pathologists, he submits when there is conflicting expert evidence on an issue that is central to the determination by the jury on the question of guilt or innocence of an accused, assistance can be gained in how, and how not, to address the jury from the guidance set out in R v Platt;[173] R v Sado;[174] and R v Henderson.[175] 158.Mr Beel primarily relies on the Court of Appeal’s observations in Henderson on the approach a judge should take when directing a jury on evidence of experts where their evidence is crucial in deciding the issue before them. The Court considered three appeal cases, all involving allegations of “shaken baby syndrome” and the approach a judge should take in ensuring that the expert medical evidence crucial to the issue was properly before and explained to the jury. When discussing how a judge should direct the jury on the expert medical evidence, Moses LJ, giving the judgment of the Court, noted that there were two particular features of the content of the summing-up which were important:
159.Mr Beel contends the judge’s directions to the jury in relation to the conflicting evidence of Dr Chiao and Dr Beh were deficient in that she did not clearly and properly set out for the jury the issues they had to resolve, and wrongly left it to them to decide in effect which expert they preferred, which was contrary to the principles stated in Henderson. 160.Mr Beel also contends the judge failed to invite the jury to consider the applicant’s account that the deceased had fallen down a flight of stairs, which could account for the ante-mortem rib fractures, and the removal of her body after death from the rooftop down the entire flight of stairs, which could account for the post-mortem rib fractures. 161.Mr Beel finally contends the judge inadequately addressed the evidence of Dr Beh concerning the possible cause of death being a drug overdose, by simply saying “there was no evidence of that” without telling the jury it was Dr Beh’s opinion, a view he formed on the basis that he could not rule out the possibility of it in the absence of evidence from the autopsy. He complains the judge merely told the jury that Dr Beh “did not go so far as to say that she died from a drug overdose, only that he could not tell whether her death may also be influenced by the amount of methamphetamine in her system.” He argues in the circumstances, the jury should have been directed they had to be sure the deceased did not die from a drug overdose before they could convict. 162.Ms Lam takes issue with Mr Beel’s description of the expert evidence, and with his attempt to equate the present case with the case of Henderson. That case was concerned with a relatively new medical condition at that time, shaken baby syndrome, which was the subject of controversy amongst medical experts, and where the medical evidence was the sole determining factor of the guilt or innocence of the accused. She submits that the mere fact that medical evidence of the parties has been given with some degree of divergence during the course of a trial does not mean that the jury has been presented with complex testimony of a technical nature, which requires special directions by the trial judge. The fact that there are conflicting views held by members of the medical profession on the cause of death does not, of itself, render a case complex or difficult. See Younas v HM Advocate.[177] 163.Ms Lam submits that there is no substance in the principal complaint of the applicant that the judge failed to direct the jury properly in relation to the suggested possibilities that some of the rib fractures had occurred post-mortem as well as ante-mortem; and that the deceased might have died as a result of an overdose from Ice. 164.As to the suggested possibility that the ribs were fractured post-mortem, Ms Lam submits that in fact both doctors shared the view that the extensive fractured ribs would have caused breathing difficulties for the deceased and that this could have been fatal. Dr Beh’s opinion did hold true at least in respect of the right chest cavity of the deceased, in which blood was found (indicating ante-mortem injuries). She adds that even if some of the rib fractures occurred post-mortem, this did not undermine the prosecution case that the killing of the deceased took place on the rooftop and her body was transferred down onto the street, which might have caused further rib fractures because of her body being dragged or bumped in the process. 165.Nevertheless, Ms Lam points out that the judge specifically mentioned to the jury that the issue of the rib fractures was one of the matters that they needed to consider and decide upon. In doing so, the judge highlighted to the jury the differences between the experts on this matter. She submits that it was therefore unrealistic to suggest that the jury might fail to appreciate there was an issue as to when the rib fractures took place and the different views of the experts on the matter. 166.As to the suggested possibility that death of the deceased was caused by a drug overdose, Ms Lam submits that there was no conflict between the two experts because they essentially agreed that there was no medical evidence to express an opinion on the matter. She argues that the judge was correct in directing the jury that there was no evidence that the deceased died as a result of a drug overdose from Ice. Discussion 167.We agree with the submissions of Ms Lam. It is quite apparent that Mr Beel’s description of the evidence of the two pathologists did not accurately reflect the state of their evidence. 168.It should be noted that Dr Chiao attended the scene where the deceased’s body was found and carried out a preliminary examination. He noted that the deceased was in a state of early decomposition and he estimated that the time of death was about one-day prior at 13:00 hours on 8 June 2015. On 11 June 2014, he conducted an autopsy on the deceased which was the subject of a report. He listed 72 injuries on the deceased’s body, and concluded that the cause of death was due to “multiple injuries”. He explained that the autopsy revealed multiple blunt force injuries, in the form of lacerations, abrasions and bruises, on different parts of the body. The lacerations on the head were associated with intracranial bleeding while the bruising on the body and upper limbs were associated with extensive rib fractures. There were also multiple shallow cut wounds on her face and upper limbs, which were caused by sharp objects. The cut wounds on the upper limbs were mainly located on the back of the forearms and hands. The pattern and location of these wounds were consistent with being defensive injuries. He made the following remarks at the conclusion of his report:
169.Dr Chiao was asked to express a view about the state of the injuries in relation to the applicant’s account in his video record of interview of his argument with the deceased, during which he slapped her face twice, kicked her chest, causing her to fall backwards down a flight of stairs. He was of the opinion that the extent and severity of the injuries to the deceased were not limited to the outline of the applicant’s assault on the deceased. Dr Beh agreed with Dr Chiao’s comments on the consistency of the injuries found in the autopsy with the scenario given by the applicant. 170.Dr Beh’s opinion was primarily based on Dr Chiao’s reports as well as other case materials. He noted from the autopsy report, amongst other things, that the skull of the deceased was intact but there was 10 ml of subdural haemorrhage and localized subarachnoid haemorrhage over the brain, and that the extensive multiple fractures of the ribs as found would mean that the deceased would have been struggling to breathe. As to the cause of death, he said, amongst other things:
171.The reason why this ground was bound to fail was because the edifice of the applicant’s argument is constructed on the shaky foundation of an incomplete and inaccurate description of the expert evidence of the two pathologists. This ground of appeal fails. The proviso 172.We are of the view that the applicant’s grounds of appeal are not sustainable, but if we are wrong, particularly in respect of Ground 2, we would have invoked the proviso and dismissed the appeal. The test is would a reasonable and properly instructed jury, acting on the evidence properly to be placed before or received by it, with nothing wrongly excluded or wrongly admitted, inevitably convict.[178] The task we are required to perform is to consider how a reasonable jury would have decided the case if it was properly directed and if the impugned evidence or event did not arise. The issue is whether the jury would still have convicted the applicant even if a correct direction was given to, or a correct approach was taken with, the jury.[179] 173.We are confident in the view that a jury would have inevitably convicted the applicant on the cogent evidence of the applicant’s guilt that was before them. This consisted of the following:
174.On the basis of the evidence, particularly the extensive nature of the injuries, this would have negated the alternative offence of manslaughter by an unlawful act, and would also have led the jury to conclude that the prosecution had negated provocation, namely the assertion by the applicant that he had a quarrel with the deceased about the man downstairs from whom she obtained some drugs. We are therefore satisfied that a reasonable and properly directed jury would inevitably have concluded that the prosecution had proved the offence of murder, in the sense they would at least be sure that the applicant had the intent to cause really serious injury, and the offence of preventing the lawful burial of the deceased’s body. 175.We also note that there remains the question of the admission to Dr Amy Liu by the applicant that he killed the deceased and disposed of her body. The applicant also made this admission to the two defence psychiatrists, Dr Li and Dr Fan. Conclusion 176.It follows from our analysis of the grounds, and the reasons we have given in rejecting them, that the applicant’s application for leave to appeal his convictions is refused and his appeal is dismissed.
Ms Vinci Lam, SC, DDPP and Mr Ivan Leung, SPP of the Department of Justice, for the respondent Mr Trevor Beel, instructed by Messrs Jal N Karbhari & Co, assigned by the Director of Legal Aid, for the applicant [1] Exhibit P8; It was more precisely an “outer layer of mattress, which had in the inner sponge layer removed”: Exhibit P246, 1 (2). [2] Appeal Bundle (AB), 36L – O. [3] Exhibit P3, Form 8 of the deceased. [4] Summing-up at AB, 27M – P and 32O – U; Testimonies of PW12 – PW15 at AB, 261 – 329. [5] AB, 9, Admitted Facts, at [12]. [6] AB, 38L – 39D. [7] Police notebook entry, Exhibit P165 and P165A. AB, 47Q – R. [8] AB, 9 – 10, Admitted Facts, at [11] and [13]. [9] AB, 18M – P; 48A – P; and 49L. [10] AB, 18N– P; 27I – L; 48F – K; and 49J – O. [11] AB, 35O – Q; 48 B – E, J-K; 49M – O. [12] AB, 48D – E, O; and 49B – F, N – O. [13] AB, 48N – R. [14] AB, 385 – 450, PW18’s video record of interview was shown to the applicant. [15] Counters 81 and 84. [16] Counter 92. [17] Counter 96. [18] Counter 178. [19] Counters 439 – 456. [20] Counter 499. [21] Counters 667; 670; 672; 699; 710; 712; 714; 734; 736; 738; 863; 866; and 884. [22] Counters 863 and 866. [23] Counter 884. [24] Counters 886; 888 and 890. [25] Counters 896; 898 and 900. [26] Counters 955 – 989. [27] Counters 1008 – 1055. [28] AB, 366 – 458 (redacted). [29] AB, 268K – G (PW12); 292J – N (PW13); 308H – I (PW14); 320P – Q (PW15). [30] AB, 291R (PW13). [31] AB, 269O – T (PW12); 293E – I (PW13); 309G (PW14); 321L – P (PW15). [32] AB, 271M – N (PW12); 293Q – 294M (PW13). [33] AB, 271O – P (PW12); 322C – D (PW15). [34] AB, 271Q – U (PW12); 294T – J, 295M – O (PW13); 322E – L. [35] AB, 272A – C (PW12); 295T – U (PW13). [36] AB, 272I – N; 273L (PW12). [37] AB, 273A – G (PW12); 296J – U, 300Q – T (PW13); 322M – U (PW15). [38] AB, 273E – M (PW12). [39] AB, 301D – R (PW13). [40] AB, 311O – 312L (PW14). [41] AB, 313P (PW14). [42] AB, 323F – 326F (PW15). [43] AB, 319D – G (PW14); 326F (PW15). [44] AB, 268J (PW12). [45] We mention this because Ground 3 in the Amended Perfected Grounds of Appeal (originally Grounds 3 and 4 in the Perfected Grounds of Appeal) was not pursued by the applicant. We assume this was done after consultation with trial counsel in accordance with HKSAR v Apelete (No 2) [2019] 5 HKLRD 602. [46] AB, 41G – L. See also AB, 42R – T. [47] AB, 346E-347E, Defence closing address. [48] AB, 27I – R, the judge’s summing-up. [49] See Objections to Cautioned Statements dated 20 November 2017. [50] At 2.30 pm, 1 December 2017. [51] At 2.30 pm, 30 November 2017. [52] See Dr Amy C Y Liu’s report dated 12 September 2017. [53] See Dr Li Cheuk Wing’s reports dated 24 April and 18 November 2017; and Dr Fan Tak Wing’s reports dated 16 and 19 November 2017. [54] See Legal Argument on behalf of the Prosecution dated 5 December 2017; and Legal Argument in Reply on behalf of the Defence dated 5 December 2017. [55] AB, 240D – 243L and 250B – 253O. [56] AB, 243M – 250A. [57] AB, 258B – 260A. [58] AB, 353J – Q. [59] AB, 356B – T. [60] AB, 357G – H. [61] AB, 357P – S. [62] AB, 362D. [63] AB, 360J – 361C. [64] AB, 361E. [65] AB, 361S – T. [66] AB, 362D. [67] AB, 362P – R. [68] The statement was made at 01:25 hours on 20 June 2015. [69] AB, 363A – C. [70] AB, 363C – G. [71] AB, 363M – R. [72] AB, 364F – J. [73] AB, 364S-365E. [74] AB, 8, Admitted Facts, at [8] – [9]. [75] AB, 35G – N; 37P – U. [76] Exhibit P246, AB, 83 – 88. [77] Fractures were found on her left second to tenth and right fourth to tenth ribs, and the ninth to twelfth ribs near vertebral ends on both sides. [78] AB, 89C – F; 133K – O. [79] AB, 50A – C; 90A – C, I – L; 133P – S. [80] AB, 50C – E; 90L – S. [81] AB, 91F – I. [82] AB, 124E – 125E. [83] AB, 93K – 94H. [84] AB, 94N – R. [85] AB, 94R – S. [86] AB, 95A – D, H – N, O – Q. [87] AB, 95E. [88] AB, 95F. [89] AB, 95G. [90] AB, 96D – H; 121C – I; 135L – P. [91] AB, 52A – H; 113K – N, R – T; 122I – N; 123A – 124H. [92] AB, 122T – 123B; 123T – 124E. [93] AB, 130F – I. [94] AB, 131A – J; 132J – S. [95] AB, 141F – 142P; 154C – F. [96] AB, 148H – O; 149C – H. [97] AB, 149F – O; 154H – K. [98] AB, 150S – 151A; 151H – R. [99] AB, 151A – D; 151Q – S. [100] AB, 151E – H; 152J – P. [101] AB, 152J – P. [102] AB, 152E – F. [103] AB, 153H – K. [104] AB, 154L – S. [105] AB, 154P – R. [106] AB, 50K – M; 54P – R; 154S – 155 B; 156I – M; 156T – U. [107] AB, 155F – 156A. [108] AB, 157Q – R. [109] AB, 157O – P. [110] AB, 157R – 158B. [111] AB, 18U – 19 C; 24G – K. [112] It was an admitted fact that the construction at 1 Changsha Street was an old-style “walk up” tenement building, with 12 flights of stairs (109 steps in total) built therein: AB 17, at [7]. [113] AB, 349Q – 350H. [114] Written Argument Against Conviction dated 11 November 2019. See the Amended Perfected Grounds of Appeal Against Conviction dated 17 July 2019. [115] Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209, at [11] – [25]. [116] Appears with Mr Ivan Leung. [117] HKSAR v Lee Cheuk Hei [2017] 5 HKLRD 483. [118] Nguyen Anh Nga v HKSAR (2017) 20 HKCFAR 149. [119] AB, 20K – M. [120] AB, 20N – U, 32J – K. [121] DPP v Woolmington [1935] AC 462, at 480 – 482. [122] HKSAR v Fok Ka Po Joe [2018] 2 HKLRD 1223. [123] AB, 18I – K; 24T – 25C. [124] AB, 21S – 22G. [125] AB, 22E; 23S; 25B – C. [126] AB, 20J – 21A. [127] AB, 32G – K. [128] AB, 37N – P; 340G – I and 341T – 342B. [129] AB, 16-17. [130] HKSAR v Ho Hoi Shing (2008) 11 HKCFAR 354. [131] AB, 20P – S. [132] AB, 20F – H. [133] AB, 20I – L. [134] AB, 20F – H and J – M, and 36A – B. [135] AB, 347S-T. [136] AB, 20K – M. [137] HKSAR v Chau Yui Ming (2019) 22 HKCFAR 368. [138] See [11] and [19] above. [139] See R v Coutts [2006] 1 WLR 2154. [140] AB, 340R – U and 346P – R. [141] AB, 345E – Q, 346I – J and 347F – G. [142] AB, 346L – 347E. [143] AB, 89R-90Q (PW17); 154A-Q, 155J-P and 157Q (DW1). [144] R v Blewitt (1988) 80 ALR 353. [145] AB, 353J – P, Q; 358A, N – P, Q – S; 359J – L. [146] AB, 352O – P; 356S – T; 357G – H, K – L, P – R; 358L – M, T – U; 359F, G – P. [147] AB, 361E – F, N – O, R – U. [148] R v Thompson (1977) 64 Cr App R 96. [149] R v Honeyghon and Sayles [1999] Crim LR 221. [150] AB, 31E. [151] AB, 30L-31E. [152] AB, 9, at [11(c)]. [153] See AG v Li Siu-lam [1989] 2 HKLR 370, at 373E – J. [154] AB, 31B – D. [155] AB, 349R – T. [156] R v Saheed Alade Olumegbon [2004] EWCA Crim 2337, at [18] – [19]. [157] AB, 357G – H. [158] AB, 338D – G, 350A – E. [159] AB, 30 R – E. [160] Honeyghon and Sayles, at 221. See also R v Dat [1998] Crim LR 488. [161] Section 12 derived from s.3 of the Criminal Procedure Act 1865. [162] Stephen, Digest on the Law of Evidence, Article 147, cited and approved in R v Prefas and Pryce (1988) 86 Cr App R, 111, at 114. [163] Ibid., at 222. [164] R v Pestano [1981] Crim LR 397. [165] AB, 19Q – U. [166] AB, 31A – E. [167] Specimen Direction 26.1 reads: “X was called by [the prosecution], but gave evidence which did not support [the prosecution’s] case. [The prosecution] was therefore allowed to treat him as a ‘hostile’ witness — a witness who had in effect ‘changed sides’ — and to cross-examine him to show that he had earlier made statements which are inconsistent with the evidence he has now given in court. The contents of those earlier statements are not part of the evidence in the trial, except for those parts of them which he has told you are true. Those statements were put before you by [the prosecution] to throw doubt on the reliability of his evidence here in court. You have to decide whether you can accept any part of the evidence which he has given in court and, if so, what part of it. If you decide that there is serious conflict between the evidence he gave you and statements previously made by him, you may think that you should reject his evidence altogether and not rely upon anything he has said in the witness box.” [168] R v Mann (1972) 56 Cr App Rep 750. [169] Ibid., 756. [170] HKSAR v Apelete (No 2) [2019] 5 HKLRD 602. [171] It has taken sometime to look into those proceedings which should have been disclosed in this appeal. [172] AB, 31D – E. [173] R v Platt 1981 Crim L R 332. [174] R v Sado (1975) 61 Cr App R 131. [175] R v Henderson [2010] 2 Cr App R 24. [176] Henderson, 229, at [217] – [219]. [177] Younas v HM Advocate [2015] JC 180, at [61] and [63] [178] See Vivien Fan v HKSAR (2011) 14 HKCFAR 641, at [80]. [179] See Lam Chi Kwong v HKSAR (2008) 11 HKCFAR 623, at [29] to [33]. |
Cases cited in this judgment