HKSAR v. Kwan Tat Yee (關達儀)

Press Summary (English)

Press Summary (Chinese)

FACC No. 10 of 2023

[2023] HKCFA 44

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2023 (CRIMINAL)

(ON APPEAL FROM CACC NO. 213 OF 2018)

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J U D G M E N T

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Chief Justice Cheung:

1.I agree with the judgment of Mr Justice Gleeson NPJ.

Mr Justice Ribeiro PJ:

2.I agree with the judgment of Mr Justice Gleeson NPJ.

Mr Justice Fok PJ:

3.I agree with the judgment of Mr Justice Gleeson NPJ.

Mr Justice Lam PJ:

4.I agree with the judgment of Mr Justice Gleeson NPJ.

Mr Justice Gleeson NPJ:

5.On 13 August 2016, the appellant and his wife quarrelled. He struck her four times with a knife, and killed her. The fatal wound to her body was 14 centimetres deep, and penetrated the heart and liver. The appellant was charged with murder. In July 2018, he was tried before Deputy High Court Judge Stuart-Moore and a jury. The appellant did not deny that he was guilty of culpable homicide, but contended that it took the form of manslaughter, not murder. By a majority verdict of 5-2 he was found guilty of murder. He was sentenced to life imprisonment.

6.In December 2022, the Court of Appeal refused the appellant’s application for leave to appeal against his conviction. Of the grounds relied on in the Court of Appeal, the only one on which leave to appeal to this Court was granted concerns what is said to have been an omission of the trial judge to give, in relation to certain evidence, what is commonly referred to as a Liberato direction (so called because of its association with the judgment of Brennan J in the Australian case of Liberato v The Queen [1985] HCA 66, 159 CLR 507).

7.The judgment of the Court of Appeal was given by Zervos JA, who concluded that “a Liberato direction was not needed in the circumstances of the present case”. For the reasons that follow, that conclusion was correct. There was no evidence in respect of which such a direction was required or could sensibly have been given.

8.In order to explain that conclusion, it is convenient to make some observations about the history and purpose of the direction, and a more recent elaboration by the High Court of Australia in De Silva v The Queen [2019] HCA 48, 268 CLR 57, and then to consider the forensic context that existed in the present case.

The Liberato direction

9.Leaving to one side charges on issues in respect of which a defendant carries the onus of proof (and, as will appear, there was one such issue in the present case), at a criminal trial the prosecution bears the onus of proving, beyond reasonable doubt, the elements of the offence charged.

10.The elements of an offence are usually established by evidence and, in some cases, admissions. The evidence on which the prosecution relies may be oral or documentary, direct or circumstantial, simple or complex, contested in whole or in part or uncontested. One of the functions of a trial judge’s directions to a jury is to explain the elements of the offence charged, and to relate the evidence of the witnesses, and the arguments of counsel, to those elements. Arguments, and comments by the trial judge, about the evaluation of witness testimony will often be expressed using verbs such as “believe”, “accept”, or “prefer”, and nouns such as “credibility”, “reliability” and “weight”. Such words are the common currency of argument and reasoning. In a criminal trial it is important that they do not obscure the purpose to which such argument and reasoning is directed, that is, a decision as to whether the elements of the offence charged have been established beyond reasonable doubt.

11.In a given case, the evidentiary contest may align closely with the ultimate issue. If X is charged with assaulting Y, in circumstances where there are no witnesses, the prosecution case may consist of the evidence of Y, who may testify to facts which constitute the objective elements of the offence and form the basis of an inference of the necessary mental element. The defence case may consist of the evidence of X. Or, perhaps, X may not give evidence at trial but the prosecution may tender evidence of an out-of-court statement made by X. From that evidence will emerge one or more issues of fact to be considered for the purpose of deciding whether there is proof beyond reasonable doubt of the elements of a criminal assault. Where X and Y have given different accounts of what occurred, it is natural for arguments and reasoning about the evidence to employ verbs and nouns of the kind mentioned above.

12.In a more complex case, the relationship between the direct and/or circumstantial evidence and the ultimate issue may be less direct. In all cases, where testimony is disputed, the jury’s consideration of the strengths and weaknesses of particular evidence must not be confused with the determination of that ultimate issue. A preference for one piece of evidence over another, or confidence in one witness rather than another, may go a distance, small or great, towards a conclusion, but evaluation of evidence is not an end in itself. It is undertaken for a purpose, and that purpose must not be obscured.

13.Liberato involved a charge of sexual intercourse without consent. The principal factual issues included consent, and the accused’s knowledge of absence of consent. Both the complainant and the accused gave evidence. There was a conviction and an appeal. The outcome is not presently relevant. Brennan J considered that there had been a misdirection in the manner in which the trial judge had invited the jury to approach the conflict of evidence between the two principal witnesses. In a passage that has since been cited and applied extensively, Brennan J said ([1985] HCA 66, 159 CLR 507 at 515):

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event), if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.”

14.The observations of Brennan J have been referred to and applied in a number of decisions of this Court (e.g. Sze Kwan Lung & Ors v HKSAR (2004) 7 HKCFAR 475; Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600; Law Chung Ki & Anor v HKSAR (2005) 8 HKCFAR 701; Jim Fai v HKSAR (2006) 9 HKCFAR 85) and of the Court of Appeal (e.g. HKSAR v Wong Wai Man & Ors (No. 2) [2003] 4 HKC 517; HKSAR v Mosen [2011] 1 HKLRD 45).

15.In the case of HKSAR v Wong Wai Man (No. 2), the trial judge had told the jury to disregard any evidence they did not believe to be true. Ma JA said ([2003] 4 HKC 517 at 524) that the proper and usual direction is that the members of the jury are required to take into account not only those parts of the defence evidence that they are satisfied are true, but also to take into consideration those parts of the defence evidence that may be true. He went on to point out that the proper treatment of the defence evidence is particularly acute in situations where the jury has to deal with conflicts between the evidence adduced by the prosecution and the defence. There, he said, the position was as stated by Brennan J in Liberato.

16.Included in the form of specimen directions used in this jurisdiction, under the heading “Defendant Who Has Given and/or Called Evidence” there appears the following, introduced by a reference to the cases of Liberato and Jim Fai:

“The defendant has chosen to give evidence [and to call witnesses]. He was not obliged to give evidence. He was not obliged to call any witnesses. He does not have to prove his innocence. He does not have to prove anything.

However, he has chosen to give evidence [and to call witnesses on his behalf]. You must take what he [and his witnesses] has/have said into account when considering the issues of fact which you have to determine.

It is for you to decide whether you believe the evidence of the defendant [and/or his witnesses] or whether that evidence may be true. I have previously told you that if the account given by the defendant / put forward by the defence is or may be true, then the defendant must be acquitted.

[If prosecuting counsel has suggested or implied that the test for the jury is to decide which version – prosecution or defence – is to be preferred:

It has been suggested to you by counsel for the prosecution that you should decide whose evidence is to be preferred and that the prosecution evidence is to be preferred over the defence evidence. But this is not the correct approach. The prosecution does not discharge its burden of proving its case on the basis that on balance its evidence is to be preferred or is more likely to be true. The prosecution can only prove the guilt of the defendant if you are sure that its evidence is true and if the evidence which is proved to be true makes you sure of his guilt.]

Even if you entirely reject the account [given by the defendant / put forward by the defence] that would not relieve the prosecution of its burden of making you sure by evidence of the defendant’s guilt [in respect of each charge which you have to consider]. So, if you entirely reject the defendant’s evidence and the evidence called on his behalf, put it aside and ask whether the prosecution has proved his guilt on the basis of the prosecution evidence which you do accept. If, on the other hand, you find in relation to an issue in the case that the defendant’s evidence or that called on his behalf is or even may be true, then you are not entitled to find against the defendant on that issue and you must take his evidence into account. It also follows that if you reject part of the defendant’s evidence [and evidence called on his behalf] but find that some of it is true or may be true, put aside the part you reject and concentrate on the defence evidence which you find is true or may be true and on the prosecution evidence which you are sure is true.”

There is a footnote alerting the reader to a qualification that may need to be made to the third paragraph in a case where there is an objective element, such as where provocation is an issue.

17.As acknowledged in what appears above, the problem to be addressed by an appropriate direction may arise because of the way in which counsel have put their arguments. The rhetorical (and, to a jury, perhaps obvious) question: “Which one do you believe?” provides a commonplace example of the problem that may need to be addressed.

18.Such directions are given against a background of other directions concerning the onus and standard of proof, which normally would not only explain those concepts but would also relate them to the evidence and issues in the case. The purpose of a Liberato decision is to convey to the jury, so that there may be no misunderstanding, that when there is conflicting evidence (more particularly, but not exclusively, a conflict between the evidence of a complainant and the evidence of an accused, or an account given in an interview with the police), a preference for some evidence over other evidence does not resolve the ultimate issue, which is whether the prosecution has proved the elements of the relevant offence beyond reasonable doubt. That has commonly been done in Australia by telling the jury that they must acquit, not only if they believe the accused’s evidence (or the evidence relied on by the accused, such as an account of events given in a record of interview) but also if they consider that it may be true. The current standard direction in New South Wales is set out in para 95 of the judgment of the Court of Criminal Appeal in Park v The King [2023] NSWCCA 71.

19.Obviously, telling a jury that they must acquit if they either believe certain evidence or consider that it may be true, or that they are not entitled to find against a defendant in these circumstances, assumes that such evidence is exculpatory. Not all evidence relied upon by the defence at a criminal trial fits into that category. There may be evidence which is supportive of the defence case, but not conclusive. Evidence of that kind would normally be covered by the directions relating the evidence to the issues in the case, including the ultimate issue, and the prosecution’s onus of proof.

20.Equally obviously, telling the jury that they must acquit if they either believe certain evidence, or at least consider that it may be true, is not appropriate where the evidence relates to an issue on which the defence bears the onus of proof.

21.In Australia, a concern arose as to whether the common form of Liberato direction covered the entire range of potential evaluation of the evidence of a witness. It covered belief of the evidence, or an assessment that it may be true, but what of disbelief? Disbelief may still leave unresolved the question that must be answered: has the prosecution, on the basis of evidence that the jury accepts, proved the accused’s guilt beyond reasonable doubt?

22.In De Silva v The Queen ([2019] HCA 48, 268 CLR 57), which was a rape case in which the competing versions of events were in the sworn testimony of the complainant and a police record of interview of the accused, the plurality judgment said (at pp 63-64):

“11. The Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence. Intermediate appellate courts have expressed differing views as to whether a Liberato direction is appropriate in a case in which the conflicting defence version of events is not given on oath, but is before the jury, typically in the accused’s answers in a record of interview. If the trial judge perceives that there is a real risk that the jury will reason that the accused’s answers in his or her record of interview can only give rise to a reasonable doubt if they believe them, or that a preference for the evidence of the complainant over the accused’s account in a record of interview suffices to establish guilt, a Liberato direction should be given. Where the risk of reasoning to guilt in either of these ways is present, whether the accused’s version is on oath or in the form of answers given in a record of interview, the Liberato direction is necessary to avoid a perceptible risk of miscarriage of justice. When an accused gives, or calls, evidence there is a natural tendency for the focus to shift from the assessment of the capacity of the prosecution case to establish guilt to an assessment of the perceived strengths or weaknesses of the defence case. Recognition of this forensic reality suggests that the risk that the jury will reason in either of these ways is more likely to arise in a trial in which the conflicting defence account is on oath.

12. In Johnson v Western Australia, Wheeler JA identified one possible shortcoming in using Brennan J’s statement in Liberato as a template for the direction: a jury may completely reject the accused’s evidence and thus find it confusing to be told that they cannot find an issue against the accused if his or her evidence gives rise to a ‘reasonable doubt’ on that issue. For that reason, it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused’s evidence (if you believe the accused’s account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

13. Whether a Liberato direction is required will depend upon the issues and the conduct of the trial. At a trial where there has been no suggestion, whether express or implied, that the jury’s determination turns on which of conflicting prosecution and defence versions is to be believed, there may be no need to expand on conventional directions as to the onus and standard of proof. As Wheeler JA also observed in Johnson, the expression ‘reasonable doubt’ is apt to convey that a juror who is left in a state of uncertainty as to the evidence should not convict.”

23.The standard form of Liberato direction currently given in Hong Kong, and in Australia, takes up the addition proposed in De Silva. In neither jurisdiction is the direction intended to cover everything a jury will need to be told about the onus of proof. It is a response to a particular, but common, problem.

24.The premise of a Liberato direction is that particular evidence is of such a nature that, if it is believed, or if it may be true, a finding that the prosecution has discharged its onus of proof cannot be sustained. Whether that is so depends upon the forensic context.

The forensic context

25.The trial judge, early in his summing-up, said to the jury:

“So the issue for you is, as it was from the beginning of this trial, is he guilty of murder or is he guilty of manslaughter”.

26.The following summary of the facts is largely taken from the judgment of Zervos JA in the Court of Appeal.

(a)  On 13 August 2016, at a time when they were living separately, the appellant received a visit from his wife. The only other occupant of the flat in which the appellant resided was his sister. The sister was present in the flat at the time of the quarrel and fatal stabbing, although her account of what she saw and heard contained some inconsistences. It was she who called for an ambulance and the police.

(b)  In a recorded police interview on the day after the killing, the appellant said that he married his wife in 2009, and she moved out of his flat in about June 2016, but returned to visit him in the flat from time to time. On the day in question, during a visit from his wife, they quarrelled about the sale of a property in the Mainland, which they had purchased in 2014, and about other domestic matters. The argument became heated. The appellant said there was a box on a table with a knife in it, and he removed the knife intending to peel an apple, but the deceased threw herself at him, causing him to stab her inadvertently.

(c)  The appellant did not give evidence at the trial, but a record of the interview was tendered by the prosecution.

(d)  The appellant’s sister was called to give evidence by the defence. She said that from her room in the flat she heard the deceased scolding the appellant. There was shouting. She left her room to see what was going on. She saw the deceased rush to the appellant. She saw them hitting and pushing each other. She saw a knife with the blade pointed at the appellant. She did not know where the knife came from but someone was holding it. She saw them struggling and she saw the deceased step back, bleeding. She picked up the knife and put it on the floor by the toilet. She then called for emergency assistance.

(e)  Evidently, the knife may have had the sister’s fingerprints on it, and she was at one stage under suspicion herself. When interviewed by the police she did not mention any argument or struggle, and said she did not remember anything after walking out of her room. In court, she said it was only later that she remembered what had happened.

27.At the trial the appellant sought to plead guilty to manslaughter, but this was not accepted. The trial was conducted on the basis that the issue was whether he was guilty of murder or manslaughter.

28.The defence’s acceptance at trial that the appellant was guilty of culpable homicide, albeit in the form of manslaughter, as a matter of law involved a concession that the death of the deceased was caused by a willed act of the appellant, and, further that the case was not one of self-defence. The appellant’s statement in his record of interview that he stabbed his wife (four times) “inadvertently” was not relied on at trial to support an argument that her death was accidental, although there was an issue about intent to kill or cause grievous bodily harm.

29.Three potential forms of manslaughter were raised by the defence at the trial:

(a)   involuntary manslaughter, on the basis that the killing resulted from an unlawful and dangerous act but one that was done without intent to kill or cause grievous bodily harm;

(b)   voluntary manslaughter, where the elements of murder are present, including intent to kill or cause grievous bodily harm but the crime is reduced to manslaughter by reason of:

(i)  loss of self-control (provocation); or

(ii)  diminished responsibility.

30.The prosecution carried the onus of proof (beyond reasonable doubt) on the issues of involuntary manslaughter and provocation. The defence carried the onus of proof (on the balance of probabilities) on the issue of diminished responsibility.

31.As to provocation, the trial judge informed the jury of the issues as to whether the appellant lost his self-control and assaulted the deceased as a result of something she said or did, and whether a person of the appellant’s age and characteristics, who possessed ordinary powers of self-control, facing provocation of the same degree of seriousness as it seemed to the appellant, may also have formed the intention to kill or cause really serious bodily harm to the deceased and have acted on that intention by assaulting the deceased with the intention of killing her or causing really serious bodily harm to her (The Homicide Ordinance, Cap 339, section 4, bears on this, but not in a way that is presently material).

32.As to diminished responsibility, section 3 of the Homicide Ordinance, Cap 339, provides:

“(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.

(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter. …”

33.Both sides called expert evidence. The defence called Dr Nip Wai, who expressed the opinion that the appellant was suffering from panic disorder at the time of the incident. This disorder, he said, was likely to have substantially impaired the appellant’s perception and evaluation of, and reaction to, his wife’s conduct and to have substantially impaired his ability to exercise self-control. The prosecution called Dr Liu Ching Yung, Amy of the Siu Lam Psychiatric Centre. She testified that the appellant’s condition had been diagnosed in July 2016 as atrial fibrillation, and he had been treated for some reactive anxiety. Dr Liu had observed the appellant for a substantial period after he was taken into custody. In her opinion, he did not suffer from any abnormality of mind or any formal psychiatric illness.

34.The evidence of the appellant’s sister was the only in-court testimonial account of what transpired on 13 August 2016. When considered with what she said to the police soon after the time of the incident there were inconsistences, but the primary matter of inconsistency was that she told the police that she could not give them much information about what happened, although she remembered handling a blood-stained knife and calling for emergency assistance. In court, however, she gave an account, albeit one that left substantial gaps in the information, of what she later remembered she heard and saw.

35.Although the sister’s testimony about the incident contained information that could be, and was, relied upon by the defence, even if taken at its highest from the defence point of view, and believed by the jury, it was not conclusive on any issue. As noted earlier, the fact that the deceased died as a result of a willed act of the appellant was not in dispute, and this was not argued as a case of self-defence. The sister’s account of the incident was not inconsistent with a finding, beyond reasonable doubt, that the appellant intended to inflict grievous bodily harm when he stabbed the deceased four times. On the question of provocation, it was not inconsistent with a finding that the appellant’s conduct was, to employ a colloquial term by way of summary of the elements necessary for that line of argument, an over-reaction. And on the issue of diminished responsibility, it was not inconsistent with the evidence of Dr Liu.

36.The issues to be resolved by the jury were those raised by the three potential grounds for a verdict of manslaughter. On one of those grounds, the defence carried the onus of proof. On the other two grounds there was no issue as to which, if the jury believed the evidence of the sister, or thought it may be true, they were obliged to acquit or, to put it differently, were not entitled to find against the defendant.

37.As to the psychiatric evidence, it was opinion evidence. The competing opinions as to the appellant’s psychiatric condition were relevant to all the potential grounds for manslaughter, but were of particular relevance to the ground of diminished responsibility, on which the defence carried the onus. Being opinion evidence, it was neither true nor false. (There was no suggestion that the respective opinions were not honestly held). The trial judge gave the jury appropriate directions on the issues (including, but not limited to, diminished responsibility) to which Dr Nip’s evidence was relevant. He directed the jury about the nature and potential use of expert evidence and said (AB 69-70):

“[I]t is trial by jury, not trial by expert and sometimes experts are right and sometimes they’re not and it is for you to decide in this case who is correct and, if it may be that Dr Nip is correct, well, then, of course you will regard that evidence in favour of the defendant on the issue which Dr Nip has described to you.”

38.The competing expert opinions were supportive of the prosecution and defence cases respectively, but neither was conclusive. It would have been wrong to tell the jury that, if they considered Dr Nip’s opinion may be correct, they must find manslaughter.

39.Counsel at the trial did not seek a Liberato direction concerning the sister’s testimony or any other evidence. No Liberato direction was asked for and, as the Court of Appeal held, none was called for.

The trial judge’s directions

40.In the Court of Appeal, Zervos JA pointed out that the trial judge repeatedly conveyed to the jury that if they had a doubt or were not sure as to the appellant’s guilt of the offence of murder, as to which the elements of the offence were clearly and accurately explained, they must acquit. As to provocation, the judge told the jury that if the appellant “may” have lost his self-control and that, if a person of the appellant’s age and characteristics “may” also have formed the intention to kill or cause really serious bodily harm to the deceased, then the partial defence of provocation would apply.

41.In the Court of Appeal (although not at trial) a complaint was made about a comment of the trial judge when dealing with the (rather large) difference between what the appellant’s sister told the police about the incident in her recorded interview and what she said at the trial. The judge said:

“All right. Well, now, that is the evidence for your consideration. It is looked at this way and that and you must decide what you make of her account. Was what she saying in [court] true or was the truth really what she was saying to the police when she was first spoken to after the event? It is up to you [to] decide.”

42.As has been noted above, nothing in what the sister said, either to the police or in her evidence at trial, even if fully believed, much less if regarded as something that may be true, obliged the jury to acquit of murder and bring in a verdict of guilty of manslaughter. What the sister said in court was more supportive of the defence case than what she said to the police, but even in court she did not profess to be able to give a complete account of what happened, and it was open to a jury to conclude that the effect of her testimony was to explain why the appellant murdered his wife. The statement to the jury that they had to decide what to make of her account, and to consider whether what she said in court was true or whether what she said to the police was true, was made in the context of prosecution and defence arguments, and directions that repeatedly told the jury, without error, how they were to consider the sister’s evidence and relate it to the issues in the case and, in particular, the issue of provocation. In Liberato, Deane J, who agreed with Brennan J, said ([1985] HCA 66, 159 CLR 507 at 519):

“Provided that they are accompanied by clear and unequivocal directions about the criminal onus and standard of proof, express or implied references in a summing up to a ‘choice’ between particular witnesses are, no doubt, sometimes unavoidable and commonly unobjectionable.”

43.An evaluation of the sister’s evidence in the present case could scarcely avoid contrasting what she said in court with what she said to the police about what she saw and heard, and considering which reflected her actual recollection and observations. A confusion between the evaluation of evidence and the resolution of issues (and, in particular, the ultimate issue of whether the prosecution has established the elements of the offence beyond reasonable doubt) is the very thing that a Liberato direction seeks to avoid. Here, in light of the directions on onus and standard of proof, and/or how to relate the evidence to the issues for decision, there was, as the Court of Appeal held, no danger of misunderstanding.

44.In argument, reference was made to a line of Canadian authority described by Paciocco JA in R v D.M., 2022 ONCA 429 at [58] – [66] as requiring a direction that will ensure that jurors properly apply the criminal standard of proof when making credibility and reliability determinations relating to exculpatory evidence on vital issues.

45.It appears that, in the United Kingdom, the problem is dealt with, not by a special direction, but by appropriate directions on onus and standard of proof, relating the evidence in the case (from whatever source) to the issues for resolution.

46.In all jurisdictions, there may arise a risk of a confusion between evaluation of evidence and resolution of issues for decision. In Hong Kong and Australia, the Liberato direction has been adopted to deal with one particular manifestation of that problem, but it has never been suggested that the problem cannot arise in other ways. Directions on onus and standard of proof, relating the evidence to issues to be resolved, need to pay due regard to it. That is why the Court of Appeal, while of the view that no Liberato direction was required, gave careful consideration to the directions of the trial judge in order to be satisfied that there was no risk of misunderstanding.

47.The standard form of Liberato direction does not purport to anticipate and cover all the circumstances in which a specific direction may be required in order to relate particular evidence to the onus of proof.

Conclusion

48.The appeal should be dismissed.

Chief Justice Cheung:

49.Accordingly, the appeal is unanimously dismissed.

Mr Eric TM Cheung, Solicitor Advocate and Mr Anthony Lai (both assigned by the Director of Legal Aid) and Ms Christie Lee (on a pro bono basis), instructed by ONC Lawyers, for the Appellant

Mr William Tam SC, DDPP and Ms Chan Sze Yan SPP, of the Department of Justice, for the Respondent