HKSAR v. Tam Ho Nam (譚浩南)

FAMC No. 6 of 2022

[2022] HKCFA 9

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 6 OF 2022 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 219 OF 2019)

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Appeal Committee: Mr Justice Ribeiro PJ, Mr Justice Fok PJ and Mr Justice Lam PJ

Date of Hearing and Determination: 29 April 2022

Date of Reasons for Determination: 5 May 2022

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.We dismissed this application for leave to appeal after hearing counsel for the applicant, indicating that we would give our reasons for doing so in due course, which we now do.

2.On 19 July 2019, after a trial before Deputy High Court Judge Stuart-Moore and a jury, the applicant was convicted of a charge of murdering his girlfriend, Ms Lau Shuk Fan (“Ms Lau”), at his home on 29 April 2009.  The lengthy delay between the offence and the applicant’s conviction is due to the applicant’s conviction for murder on the same charge in two previous trials having been quashed.  His conviction of murder after his first trial[1] was quashed by the Court of Appeal[2] which ordered a re-trial.  His conviction for murder on the re-trial[3] was quashed by this Court,[4] which ordered a second re-trial leading to his conviction now under appeal.  The applicant’s appeal against his conviction to the Court of Appeal was dismissed on 16 September 2019.[5]

3.The applicant now applies for leave to appeal to the Court of Final Appeal on the ground that substantial and grave injustice has been done to him on the basis that there was a serious departure from accepted norms on the part of the Court of Appeal in dismissing his appeal below.  He complains of three alleged departures from accepted norms in the courts below:

(1)  first, that an undertaking previously given by the prosecution at a pre-trial hearing before the second re-trial was not honoured and adhered to, resulting in prejudicial evidence being improperly admitted (SGI ground 1);

(2)  second, that the trial judge materially misdirected the jury by inviting the jury to choose between the prosecution evidence and the defence evidence on provocation and to find out what was true, contrary to the Liberato principles[6] (SGI ground 2); and

(3)  third, that the trial judge materially misdirected the jury in relation to the contents of two video records of interview (“VRIs”) given by the applicant contrary to the Mushtaq principles[7] and further that, in rejecting this ground of appeal below, the Court of Appeal acted in breach of natural justice by relying on documents not included in the appeal bundle and without giving the applicant an opportunity to address those documents before handing down judgment (SGI ground 3).

4.To put these grounds in context, the issue at the applicant’s trial was whether he should be convicted of murder or of the lesser charge of manslaughter by reason of provocation.  The applicant admitted killing Ms Lau by inflicting at least 50 cut wounds on her with a chopper but denied an intention to kill her or to cause her grievous bodily harm and also relied on the defence of provocation.  His offer to plead guilty to manslaughter by reason of provocation was rejected by the prosecution, who therefore bore the burden of proving that the jury should be sure that this was not a case of provocation if the applicant was to be convicted of murder.  As to provocation, the applicant testified in his own defence.  The gist of his evidence was that he and Ms Lau got in an argument when she threatened to arrange for an unsavoury friend of hers called “Tai Kwai Gor”, who had previously allegedly assaulted and threatened the applicant, to kill him and his family, and when she rebuffed his intimate advances and she fueled his suspicion of her having an affair with his elder brother.  This led the applicant to get a chopper from the kitchen after which he and Ms Lau struggled and he swung the chopper randomly at her.  By their 5 to 2 majority verdict, it is clear that the jury were sure that the prosecution had proved the charge of murder and that the killing was not a case of manslaughter by reason of provocation.

5.Since the application for leave to appeal is made on the basis of substantial and grave injustice having been done to the applicant, the threshold for leave is a high one.  As the Appeal Committee has previously stressed, leave to appeal on this basis is “different and more demanding”.[8] The question is not whether the conviction is safe and satisfactory (with which the intermediate appeal is concerned) but instead whether it is reasonably arguable that there has been substantial and grave injustice, which is “a residual safeguard to cater for ‘rare and exceptional’ cases in which there is ‘a real danger of something so seriously wrong that justice demands an enquiry by way of a final criminal appeal despite the absence of any real controversy on a point of law of great and general importance’.”[9]  This residual ground of appeal is not designed to provide an opportunity to re-argue points of appeal that have previously been addressed and rejected on intermediate appeal “in the hope that the Court of Final Appeal might see things differently”.[10]

6.The above principles are of direct application in the present case, since it is acknowledged, in the applicant’s Amended Notice of Application for Leave to Appeal, that the three SGI grounds now advanced correspond respectively to Grounds 1A, 1 and 2 as argued before the Court of Appeal below.[11] As to those grounds, the Court of Appeal refused leave to appeal to the applicant on Grounds 1 and 2 below and, although they granted him leave to appeal on Ground 1A below, they dismissed the appeal on that ground.

7.Taking SGI ground 2 first, notwithstanding the submissions of counsel for the applicant,[12] this is no more than what counsel for the respondent[13] has described, in his clear and helpful written submissions, as “a wholesale repetition” of submissions made before the Court of Appeal as to whether the trial judge had materially misdirected the jury in that there was a real danger the jury would have been given the impression they could only find provocation established if they considered the applicant’s evidence to be true.  It was contended that that danger, if established, would mean that the trial judge had failed to direct the jury properly in terms of the principles in Liberato, which require the jury to be told that they must find for a defendant if what he says is or may be true and not only when they accept the evidence for the defence is true.

8.The Court of Appeal dealt squarely with this argument below[14] and rejected it.[15]  Nothing in the applicant’s Amended Notice of Application for Leave to Appeal or in the submissions advanced on his behalf persuaded us that it is reasonably arguable the Court of Appeal was wrong in their analysis and rejection of this ground of appeal.  In short, it is not reasonably arguable that the trial judge’s directions, including his additional summary of the evidence when the jury asked for a transcript of the applicant’s testimony during their deliberations, would have left the jury with the impression that they must find for the prosecution if they did not accept that the applicant had established the truth of his evidence.  On the contrary, the trial judge repeatedly instructed the jury to consider what the provocation relied upon “would or might have caused” an ordinary, sober person of the applicant’s age and background to do.

9.Similarly, SGI ground 3 does not provide a reasonably arguable basis for the grant of leave to appeal for essentially the same reasons.  The complaint here, which is the same argument as that advanced in the Court of Appeal below, focuses on the contents of the two VRIs.  It was contended on behalf of the applicant that the jury were not, but should have been, instructed that they should disregard the contents of the VRIs if they thought they were or might have been obtained as a result of oppression or when the applicant was or might have been unfit to be interviewed.   Such a direction was required, it was contended, in order to comply with the common law principles as stated in Mushtaq.[16]

10.However, as the Court of Appeal concluded, in their careful analysis, the key principles of Mushtaq were adequately conveyed to the jury in the trial judge’s directions on the VRIs.[17]  We also agree with the Court of Appeal that, on a fair reading of the summing up, the jury would not have been left with the impression that they must be sure that the applicant was oppressed into taking part in the VRIs before ignoring them[18] or that he bore any burden of proving his allegations of oppression.[19]  The additional argument advanced on behalf of the applicant, that there was a breach of natural justice by the Court of Appeal’s reliance on admitted facts from the previous re-trial and on the clerk’s log of the pre-trial hearing before the second re-trial, adds nothing because the Court of Appeal only referred to those matters to demonstrate, quite properly, the absence of prejudice to the applicant from the alleged omission of a direction to disregard the VRIs if the jury thought they might have been the result of oppression of the applicant.  Since the Court of Appeal concluded there was no such omission, this point is moot.

11.Turning then to SGI ground 1, the argument arises from the fact that, at a pre-trial review prior to the second re-trial, the applicant’s then counsel had objected to part of the anticipated evidence of one of the ambulance men who attended at the scene of the killing.  The applicant had allegedly said to him words to the effect: “My elder brother and my girlfriend have affairs so I chopped my girlfriend”.  The objection was never ruled on because the prosecution undertook not to adduce the evidence of that conversation (referred to as “the Ambulance Conversation”).  Unfortunately, the trial judge appears not to have been made aware of the undertaking and prosecuting counsel at the trial (not Mr Lui) omitted to stop the witness when the trial judge asked him to relate the contents of that conversation in the course of his evidence.  As the Court of Appeal said, it was “regrettable” that the trial judge was unaware of the undertaking from the court file but “even more extraordinary” that prosecuting counsel did not intervene to prevent or mitigate its breach.[20]

12.There is no doubt that this breach of undertaking was an irregularity, as the prosecution now accepts, and the Court of Appeal thus had to consider its effect on the trial. The question for the Court of Appeal on the intermediate appeal, therefore, was whether the admission of the evidence of the conversation rendered the applicant’s conviction unsafe and unsatisfactory.  In answering this question, the Court of Appeal expressed doubt as to whether the undertaking was properly given in the first place, since the evidence was plainly relevant and admissible, but concluded in any event that the prejudicial effect of the Ambulance Conversation was not such as to render his trial unfair.  They agreed with the submission of counsel for the prosecution that its contents were not inconsistent with the defence being advanced by the applicant, namely that the chopping arose out of an argument with his girlfriend over a perceived affair. Accordingly, the Court of Appeal granted leave to appeal on this ground but dismissed the appeal, holding that they would, if necessary, have applied the proviso since they did not believe this evidence made any difference to the jury’s verdict.[21]

13.We agree with the Court of Appeal’s conclusion that the admission of the Ambulance Conversation, in breach of the undertaking, did not render the applicant’s trial unfair and, notwithstanding Mr Cheung’s submissions to the contrary, do not consider it reasonably arguable that the breach of the undertaking resulted in substantial and grave injustice to the applicant.  As already indicated, the evidence of the Ambulance Conversation was relevant and admissible.  The accuracy of the ambulance man’s recollection of the Ambulance Conversation went only to its weight, which was properly a matter for the jury.  The applicant’s own evidence was not challenged on the basis of the contents of the Ambulance Conversation. More importantly, it was, as a matter of substance and contrary to the submissions now advanced on behalf of the applicant, broadly consistent with the applicant’s own evidence as to provocation, both in his oral testimony at trial and in the VRIs.  It had been admitted in both previous trials without objection.  There was only one brief and passing reference to the Ambulance Conversation in the summing up.

14.For these reasons, we refused leave to appeal and dismissed this application.

Mr Eric TM Cheung, Solicitor Advocate, of ONC Lawyers, and Mr Jason Kung, instructed by ONC Lawyers, both assigned by the Director of Legal Aid, for the Applicant

Mr Ira Lui ADPP, of the Department of Justice, for the Respondent