HKSAR v. Wong Chun Man
Read the full judgment text of CACC 28/2020 on BabelCite. This Court of Appeal judgment was delivered on 30 June 2022.
1. The applicant, who was the 2 nd applicant at the appeal before the Court of Appeal and the 2 nd defendant (“D2”) at trial, applies for a Certificate under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 on the basis that three points of law of great and general importance are involved in the Court’s decision of 3 December 2021. The three points of law are as follows:
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CACC 28/2020 [2022] HKCA 978 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 28 OF 2020 (ON APPEAL FROM HCCC NO 199 OF 2019) ________________________
________________________ Before: Hon Macrae VP, Zervos JA and A Pang JA in Court Dates of Written Submissions: 16 December 2021 and 17 February 2022 (Applicant); 7 February 2022 (Respondent) Date of Decision: 30 June 2022 ____________________ D E C I S I O N ____________________ Hon Macrae VP (giving the Decision of the Court): 1.The applicant, who was the 2nd applicant at the appeal before the Court of Appeal and the 2nd defendant (“D2”) at trial, applies for a Certificate under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap 484 on the basis that three points of law of great and general importance are involved in the Court’s decision of 3 December 2021. The three points of law are as follows:
We shall deal with the points in reverse order. Question 3 2.There was oral evidence before the jury from both PW7 and PW8 themselves that they had each pleaded guilty to manslaughter in the present case and that they were awaiting sentence. This was evidence in the case and it was never a matter in dispute. The premise of this elaborate complaint is that the judge erroneously permitted the jury to use PW7 and PW8’s pleas of guilty against D2. Thus, so the argument goes, the judge told the jury that they could rely on the guilty pleas as evidence of the existence of a plan to attack with the group, which necessarily amounted to “evidence in support of the prosecution case against the defendant”. 3.The point is misconceived. Firstly, both PW7 and PW8 not only testified before the jury that they had pleaded guilty to manslaughter, they each specifically admitted the basis of their pleas which was that, on 2 October 2008, they had, together with other persons, attacked Poon Ka-yan, who subsequently died[1]. Secondly, they gave extensive evidence as to what they had each done before and during the attack on the victim. Thirdly, what the judge was giving in the impugned passage of the summing-up was part of a lengthy outline of the prosecution case in respect of a planned attack by the group. He said[2]:
However, he immediately went on to remind the jury of what he had earlier said[4], that the pleas of guilty to manslaughter tendered by the two defendants were “of no effect” since they had not been accepted by the prosecution[5]. The judge did not say, in terms or by necessary implication, that the jury could use the evidence of PW7 and PW8’s pleas of guilty alone in support of the prosecution case against the defendant. 4.Moreover, the judge was careful to remind the jury to “scrutinize (PW7 and PW8’s) evidence with care because they both have reasons of their own for telling the police and now you what they think the police want them to say”[6]. He concluded this aspect of his summing-up by saying[7]:
5.When the summing-up is properly read and understood in context and as a whole, Question 3 does not arise in this case. Question 2 6.The fact that D2 had pleaded guilty to manslaughter upon arraignment, which plea was not accepted by the prosecution, was something that was clearly before the jury, with the consent and at the instigation of defence counsel, from the outset of the case. Indeed, it was a central plank of the defence case, as clearly reflected in the closing speeches of both defence counsel to the jury, that D1 and D2 were in the same position as PW7 and PW8, whose pleas of guilty to manslaughter had been accepted, while their own pleas had not. 7.Both D1 and D2 had been formally arraigned prior to trial, on 9 January 2020, when they each pleaded not guilty to murder but guilty to manslaughter. At a hearing two days earlier, on 7 January 2020, Mr Duncan Percy, counsel for D1, and Mr Steve Chui, counsel for D2, both confirmed to the judge that their clients would be pleading guilty to manslaughter and that the jury should be informed of their pleas by prosecuting counsel in her opening speech to the jury[8]:
8.It is quite apparent that upon arraignment both D1 and D2 entered unequivocal pleas of guilty to manslaughter, which amounted to an admission of guilt to the manslaughter of Poon Ka-yan. Accordingly, and with everyone’s understanding and agreement at trial, Ms Ching opened her case by saying[10]:
In her closing speech, she repeated the point[11]:
9.As for the defence, Mr Percy, counsel for D1, reminded the jury in his closing address that his client had pleaded guilty to manslaughter but not guilty to murder, which plea was rejected by the prosecution[12]; while the principal argument of Mr Chui, counsel for D2, was that there was no difference between his client’s guilt and that of PW7 and PW8[13]:
Earlier, he said of D2’s case that if one were to rely on D2’s admissions alone that he had stepped on the victim twice, “his case was just the same as the two accomplice witnesses, is it not?”[14]. 10.In light of the position adopted by (D1 and) D2’s counsel at trial, the point now sought to be argued is highly artificial and somewhat disingenuous. There was never any issue about the defendants’ unequivocal pleas of guilty to manslaughter upon arraignment. Indeed, the defence wanted the fact of the defendants’ manslaughter pleas to be used by the jury in their favour so as to avoid a murder conviction, a point which was in fact endorsed by the judge himself when he told the jury, “the fact that they were prepared to plead guilty to manslaughter is a factor which you can and should take into account” in deciding whether the defendants were guilty of manslaughter rather than murder[15]. Yet, now it is said that this fact should not have been referred to. Not surprisingly, D2’s counsel at trial never sought to complain about, or raise, this matter with the judge, nor did he counter the obvious implication of his client’s plea, which was an acknowledgment that he at least participated in an attack with others. 11.We do not see that R v Hazeltine[16], which is relied upon by the applicant, is relevant. In that case, the judge told the jury in his summing-up that since the defendant had earlier pleaded guilty to unlawful wounding (before they were placed in charge of the accused), which plea was not accepted by the prosecution, it was not necessary for them to consider this lesser alternative charge[17]. Accordingly, they were simply asked whether the defendant was guilty or not guilty of the more serious count of wounding with intent. The jury found him not guilty in accordance with those directions, but the judge then proceeded to sentence the defendant on the basis of his earlier plea to unlawful wounding, which the prosecution had rejected. The situation in the case before us might have been the same if, having told the jury that D2 had pleaded guilty to manslaughter, which plea had been rejected by the prosecution, the judge had then told them they did not have to consider the alternative charge of manslaughter, and the jury had acquitted altogether. In the present case, of course, the jury convicted of murder. 12.The case of R v Lee[18], which is relied upon by the respondent, is of some interest. There, the judge had directed a verdict of guilty to a lesser offence following the jury’s acquittal of the more serious offence, on the basis that the defendant had earlier entered a plea in their absence to the lesser offence, which plea had been rejected by the prosecution. The late Sir John Smith remarked, in his commentary to this case in the Criminal Law Review[19]:
It may be noted that in his closing address to the jury, counsel for D2, whilst inviting the jury to convict of manslaughter rather than murder, went further and advanced a rather extraordinary and somewhat fanciful submission that he was not guilty altogether; which would no doubt have rather baffled the jury since it was being simultaneously impressed upon them that the defendants had been prepared to plead guilty to the manslaughter of Poon Ka-yan. 13.Indeed, we were somewhat mystified how it was that Mr Chui was even able to make a submission that his client was not guilty altogether, when he must have received instructions that his client was guilty of manslaughter in order to have represented him when he pleaded as he did upon arraignment; a plea which has been characterised by Cheung PJ (as he then was) in HKSAR v Chan Chi Ho Lincoln[20] as a “prior, historical fact that there has been made by the defendant an unequivocal admission of guilt”. In R v Asiedu[21], Lord Hughes said of a defendant who pleads guilty that he “is making a formal admission in open court that he is guilty of the offence”. And as the judge himself said, in the exchange before the pleas were entered, the sooner the jury were told of the guilty pleas “the sooner they will know that the defendants were in some way involved and it’s not a question of them running a defence of alibi or they weren’t there and all the rest of it”[22]. 14.The judge was perfectly entitled, given the course that the trial took, to point out that the defendants’ pleas of guilty to manslaughter, which were freely referred to by all counsel and himself and were never in issue throughout the trial, indeed it was part of the defence tactic to rely on such pleas, meant that both defendants must have accepted the fact that they were party to an attack, whether the prosecution accepted their pleas or not. 15.This point, which in any event is an inconsequential and immaterial one in an otherwise overwhelming case against D2, is in our judgment not reasonably arguable. Question 1 16.This Question is a misreading of what the judge actually said. The judge correctly conveyed the essential point in HKSAR v Chan Kam Shing, which is set out at [92] of the judgment of this Court. We do not propose to repeat it. This point does not arise in this appeal. 17.We decline to certify any of the proposed Questions.
Ms Jasmine Ching SPP and Ms Cherry Chong SPP (Ag), of the Department of Justice, for the Respondent The Applicant appeared in person [1] AB, pp 406T-407G (PW7); p 507M-S (PW8). [2] AB, p 48I-M. [3] In fact, the judge here used the name “Siu-fung”, when we think he must have meant “Sai-lun”, who was PW8. It was a slip of the tongue, which in context would not have been misunderstood by the jury. [4] AB, p 36M-O. [5] AB, p 48M-N. [6] AB, p 52K-M. [7] AB, pp 52T-53C. [8] AB, p 643J-645C. [9] AB, 643J-645L. [10] AB, p 628F-H. [11] AB, p 353J-K. [12] AB, p 378G-H. [13] AB, p 401S-U. [14] AB, p 397G-H. [15] AB, p 36Q-R. [16] R v Hazeltine [1967] 2 QB 857. [17] Ibid., at 862C-D. [18] R v Lee [1985] Crim LR 798. [19] Ibid., at 799. [20] HKSAR v Chan Chi Ho Lincoln (2018) 21 HKCFAR 588, at [33]. [21] R v Asiedu [2015] 2 Cr App R 8, 95 at [19]. [22] AB, p 645A-C. |
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