HKSAR v. Wong Hing Piu

CACC000189/2001

CACC 189/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 189 OF 2001

(ON APPEAL FROM HCCC 393 OF 2000)

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Coram: Hon Stuart-Moore VP, Yeung JA and Jackson J

Date of Hearing: 26 November 2002

Date of Judgment: 10 December 2002

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1.The Applicant was charged with the murder of Chan Sik-hung (the deceased). He pleaded not guilty and was convicted after a trial before Lugar-Mawson J and a jury.

2.The Applicant now seeks leave to appeal against conviction.

3.At about 1.15 p.m. on 2 September 2000, a fight occurred between the Applicant and the deceased in the ground floor lobby of a building in Shanghai Street, Mongkok. There were no other persons involved and, as a consequence of the fight, both the Applicant and the deceased suffered knife wounds. The deceased died from his wounds. The Applicant was arrested not far away from the scene. He was subsequently interviewed and made a number of limited admissions which were video-recorded. A knife was located nearby with bloodstains which matched the blood type of the deceased.

Prosecution's case

4.The respective cases for the prosecution and the defence were summarised by the judge at the outset of the summing up as follows:

"The prosecution say that on 2 September of last year, 2000, following an argument with Lam Pui-hing - who was (the deceased's) wife - in a flat in Shanghai Street, Mong Kok, over the earnings of a prostitute, an argument that took place at around 1 o'clock in the afternoon, the defendant, Jayson Wong Hing-piu, struck her in the face. She used a telephone to summon her husband to assist her in the quarrel. The defendant left the flat before he arrived there. However, he met (the deceased) in the ground floor entrance lobby of the building in which the flat was, they exchanged heated words and then they fought.

The prosecution say that the defendant deliberately used a knife to attack (the deceased) in the course of the fight, intending at the least to cause him really serious bodily harm. He was stabbed three times with the knife - once in the right upper chest, once in the right lower back and once in the right upper thigh. The fight ended and the defendant fled the scene, jettisoning the knife in a gutter nearby. He was soon after spotted by a patrolling police officer in Soy Street, who detained him.

(The deceased) was badly injured as a result of the three stab wounds he received in the course of the fight. They were deep ones, particularly the one to the chest. He was taken to hospital, and despite receiving emergency medical treatment, he died of his wounds within the space of a few hours.

The defendant admits the quarrel and its course. He admits slapping Lam Pui-hing, he admits meeting (the deceased) in the ground floor lobby and then quarrelling and then fighting. It is his case, however, that it was (the deceased) who attacked him first with the knife. He was unarmed but resisted the attack. The fight continued, he banged his head in the course of it which made him slightly dizzy. When he felt (the deceased) leave off his attack, he fled the scene. As he ran, he realized he had a knife in his hand and he threw it away, then he was stopped by the police officer.

He cannot remember how he came to be in possession of the knife, he has no recollection of using it against (the deceased) in the course of the fight, he had no knife with him on that day, he did not deliberately or knowingly use a knife to stab (the deceased). And if he did stab (the deceased), he had no intention of killing him or causing him really serious bodily harm, he only acted in self-defence.

There is no dispute between the prosecution and the defendant that the defendant was himself slashed with a knife in the course of the fight. There were two cut wounds to the left side of his neck. One of those was relatively serious and required suturing. And there was one cut wound to his right forearm. There was also a bite wound to his right wrist." (Appeal bundle pp. 1-2)

5.Three civilian witnesses were called for the prosecution which was founded in part on direct and in part circumstantial evidence. There was no dispute that the Applicant and the deceased had fought and that the Applicant fled the scene with the knife which had caused the injuries from which the deceased died.

6.The Applicant, the deceased, the deceased's wife Lam Pui-hing (PW1) were variously involved in prostitution. It was as a consequence of a falling out between the Applicant, the deceased and PW1 that the confrontation leading to the death of the deceased appears to have occurred.

7.Neither PW1 nor the other prosecution witnesses actually saw the Applicant striking the deceased with the knife but they did, to various degrees, observe the fight between them on closed circuit television monitors which were fixed throughout the premises. It was an agreed fact that each witness watching the incident did so viewing the same scene from one camera, although that they were themselves in different parts of the building when they saw it. The evidence-in-chief of PW1 and PW2 was summarised by the trial judge as follows:

"(Lam Pui-hing [PW1]) said she was watching a closed circuit TV. That she saw the defendant going down a flight of stairs. He was about to reach the entrance to the street, he had two steps to go. She saw her husband appear in the screen just at the entrance. They spoke, she could not hear what they said. Then they started fighting .... later they disappeared from the screen to the right-hand side." (Appeal bundle p. 26)

"(Ma Hing-ping [PW2]) was working at the counter on the 1st floor. There was a TV set there and telephones, and from time to time he looked at the TV set, which showed the situation downstairs, down the staircase .... That around 1.15 p.m. he saw a person walk out of the lift at the 1st floor. It was a male. He was wearing a blue 'fisherman's hat', a T-shirt and jeans, and carrying a bag on his shoulder.

This person got out of the lift and went downstairs. Then he said he heard some loud noises and people using abusive language. He paid attention to the monitor screen. At first he saw this man. He was quarrelling with another person, they were fighting. The other person was a man. He could not see what this other person was wearing. He saw the fight for a matter of several seconds, then the man wearing the fisherman's hat dropped the bag that he was carrying. Then (PW2) saw nothing. Then he saw this man come back and pick up the bag. He said that after he dropped the bag, this man had run to the left-hand side of the monitor screen. He said he could not see the other man involved in the fight at this time. He said he could only see that at the beginning, when he was fighting.

He said that he continued to watch the TV monitor. The next thing he saw was about 10-odd seconds later. The man in the fisherman's hat came back to the lobby. He picked up the bag. He saw him open the bag. He saw him take something out with his right hand. It was something that reflected light. (PW2) was not able to see what it was.

Next on the screen (PW2) said that he saw the man in the fisherman's hat run towards the right-hand side of the screen. He could not see what he had in his hand. What he had in his hand reflected light. He was sure that he could see something in his hand. At that time he could not see the other man on the scene. He said that when the bag was being picked up, he could see the legs of the other man. He walked across the screen from left to right.

It was then that the man in the fisherman's hat came into the picture to pickup the bag. He said that at no time did he see either man 'walk quickly'. That is what he said in examination-in-chief." (Appeal bundle pp. 27-28)

8.One further witness, Ko Kwok-man, was able to see two men fighting but he did not see if either of them was armed.

Defence case

9.The Applicant gave evidence in the trial which was largely consistent with the account he had given to the police during the video-recorded interview.

10.He did not dispute that he had quarrelled with PW1 in the flat and that he had slapped her. He did not dispute also that he met the deceased at the ground floor entrance lobby and had fought with him. It was his evidence that after an exchange of words, the deceased produced a knife and used it to attack him. He swung his bag at the deceased who managed to cut him with the knife. He grappled with the deceased who then bit him. They struggled and rolled on the floor where he banged his head which made him dizzy. When he felt the deceased stop his attack, he was able to free himself and he fled the scene. It was then that he realised that he had the knife in his hand but he did not know how he had got hold of it.

11.The Applicant maintained that he had no idea how the deceased received the three fatal stab wounds. He did not know whether he had inflicted them. He had no intention of deliberately attacking the deceased with a knife. He had not taken or carried a knife with him that day.

Applicant's grounds of appeal

(1) No case to answer

12.Mr Macrae, SC, on the Applicant's behalf, relied on three out of the four grounds of appeal which he had originally settled.

13.His first ground was not pursued, namely that the judge had erred in leaving the issue of murder to the jury.

14.Mr Macrae recognised in argument that this ground, insofar as it suggested that there was no case to answer on the count of murder, was untenable. Indeed, we observed that experienced counsel had appeared for the Applicant at trial and a submission of no case to answer was never made. The evidence was, to use Mr Macrae's description "thin" and coupled with the fact that the jury had been made aware of the Applicant's bad character, he submitted that the circumstances, taken together with his other grounds, were such that the verdict was unsafe or unsatisfactory. This was, he argued, a case where the "obvious" verdict was manslaughter rather than murder.

15.Mr Saw, SC, on behalf of the Respondent, made the general observation that although no one had actually seen the Applicant stab the deceased, there was circumstantial evidence pointing to the fact that the Applicant had the knife with him when he first arrived at PW1's premises and had taken it from his bag in the course of the fight with the deceased. The issues, he realistically suggested, on the safe assumption that the jury accepted that the deceased received the stab wounds in the fight with the Applicant, were whether these wounds were intentionally inflicted and, if so, whether they were inflicted in self-defence and, if not, whether the Applicant was provoked.

16.The Applicant had admitted in his video-recorded interview that he had, at one stage, snatched the knife from the deceased. He did not dispute the fact that, after he had fled the scene, he had thrown away a knife at the junction of Shanghai Street and Soy Street. There had been no evidence and no suggestion of two knives being used in the fight.

17.The Applicant's admission that he had carried a bag when he met with the deceased at the entrance lobby of the building supported the prosecution case that he was in fact the person who Ma Hing-ping (PW2) had seen on the CCTV taking out something which "reflected light" from a bag before chasing after another person to the right-hand side of the entrance to the lobby. The deceased was found injured outside a metal shop which was also to the right-hand side of the entrance to the lobby.

18.If that evidence was accepted, coupled with the evidence that only one knife was used in the attack, the jury could readily have concluded that the object taken from the bag was the knife which was subsequently used by the Applicant to inflict the injuries to the deceased. Given the nature of the injuries, the jury were also entitled to have concluded that the Applicant intended to kill or at the very least to have inflicted grievous bodily harm to the deceased.

19.We consider in the light of these considerations that Mr Macrae's appraisal of his first ground as being one which was not arguable was entirely correct. Plainly, there was sufficient evidence for the trial judge to leave to the jury on the count of murder. Again, as Mr Saw was able to point out in his most able and helpful written submissions, the very fact that Mr Macrae had submitted that manslaughter was the most obvious verdict on the evidence assumed that the Applicant had unlawfully killed the deceased and this further served to demonstrate that the trial judge would not have been justified in withdrawing the count of murder from the jury's consideration.

(2) Provocation

20.In the second ground, it was contended that in directing the jury on the issue of provocation, the judge had erred in "confining the identification or description of a 'reasonable man' to age and sex alone, and by failing to direct the jury that they could also take into account such characteristics of the (Applicant) as they thought would affect the fact and gravity of the provocation on him".

21.Section 4 of the Homicide Ordinance reads:

"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

22.The relevant directions on provocation, so far as this ground is concerned, read as follows:

"There are two questions that you have to consider before you are entitled to conclude that the defendant was or may have been provoked.

Firstly, may the deceased, Chan Sik-hung's conduct on 2 September 2000, that is things he did, or things he said, or both, have provoked - that is caused - the defendant suddenly and temporarily to lose his self-control? If you are sure that the answer to that question is 'No', then the prosecution will have disproved provocation, and provided that the prosecution has made you sure of the ingredients of the offence of murder, to which I have referred, your verdict will be guilty of murder.

If, however, your answer to that question is 'Yes', you must go on to consider the second question.

Secondly, may that conduct of Chan Sik-hung, the deceased, have been such as to cause a reasonable and sober person of the defendant's age and sex to do as he did?

A reasonable person is simply a person who has that degree of self-control which is to be expected of the ordinary citizen and who is sober and who is of the defendant's age and sex. If you think that the conduct would have been more provoking to a person, who, like the defendant, was a middle-aged man of 46, then you must ask yourselves whether a man of that age might have been provoked to do as he did.

When considering the second question, you must take into account everything that was done and/or said according to the effect which in your opinion it would have on that ordinary person.

If you are sure that what was done and/or said would not have caused an ordinary sober person of the defendant's age and sex - I remind you that he was then 46 - to do as he did, the prosecution will have disproved provocation. Then, providing that the prosecution has made you sure of the ingredients of the offence of murder to which I have referred, your verdict will be one of guilty of murder.

If, on the other hand, your answer is that what was done and/or said would or might have caused an ordinary sober person of the defendant's age - 47 now, 46 then - and sex to do as he did, your verdict will be one of not guilty of murder but guilty of manslaughter by reason of provocation." (Appeal bundle pp. 48-50)

A little later the judge went on to say:

"If you, ladies and gentlemen, think that was or may have been the true situation in this case, then you should consider whether or not an ordinary sober person of the defendant's age and sex placed in the same situation would do as he did. If it is your conclusion that such an ordinary sober person would have reacted as the defendant did, your verdict will be one of not guilty of murder but guilty of manslaughter by reason of provocation." (Appeal bundle p. 52)

23.The majority opinion (Lord Steyn dissenting) delivered by Lord Goff in the Judicial Committee of the Privy Council on 26 March 1996 in Luc Thiet Thuan v The Queen [1997] AC 131 at 132 A-B as to the meaning of "reasonable man" was succinctly summarised in the headnote at page 132 in these terms:

".... the reasonable man referred to by section 3 of the Act of 1957 and section 4 of the Ordinance was a person who shared such of the individual characteristics of the defendant as the jury might consider would affect the gravity of the provocation to him but had the power of self-control to be expected of an ordinary man or woman, or young person, as appropriate; that there was no basis upon which mental affirmity on the part of the defendant which had the effect of reducing his powers of self-control below that to be expected of an ordinary person could, as such, be attributed to the ordinary person for the purposes of the objective test in provocation; ...."

24.The Privy Council adopted the approach, at pages 140H-141A, recommended by Professor Ashworth that:

"The proper distinction .... is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused's level of self-control should not."

25.Lord Goff quoted with approval at page 139H-140B the following proposed direction suggested by Lord Diplock in DPP v Camplin [1978] AC 705 at 718 E-F:

"The judge should state what the question is using the very terms of the section. He should then explain to [the jury] that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did."

26.In Luc Thiet Thuan, the issue was whether or not the mental infirmity of the appellant, which had the effect of reducing his powers of self-control below that to be expected of an ordinary person, was such a characteristic for the purposes of the objective test in provocation and, for the reason which clearly emerges from the passages already cited, it was held not to be so. The objective test of a 'reasonable man' was one which did not include characteristics which would render him more likely to lose his self-control.

27.Mr Macrae submitted that the directions given by the trial judge in the present case were incomplete as they had been confined to the effect of provocation on a man aged 46 when there were other somewhat ill-defined characteristics, we feel bound to say, which needed to be considered such as the Applicant's bad character and poor educational background. These, he argued, should also have been taken into account when the jury came to decide whether the objective element of provocation was satisfied.

28.This court has previously, as Mr Saw has pointed out, considered the substance of this ground of appeal and rejected it. It was argued on behalf of the applicant in Kong Kwong-san v HKSAR, CACC 135/1998 (unreported) that this court should follow the decision of the English Court of Appeal (Potts J giving the judgment on 10 July 1998) in R v Smith (Morgan) [1999] QB 1079 which had specifically not followed the analysis of the law set out in the speech of Lord Goff in Luc Thiet Thuan. The court in Kong Kwong-san considered not only that Luc Thiet Thuan was binding upon it but that the approach of Lord Goff was to be preferred to that which had been adopted in the English Court of Appeal's judgment in R v Smith (Morgan). Furthermore, as Mr Saw also reminded us, on 5 February 1999, a point of law of great and general importance was certified by this court, pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap. 484, in the following terms at pages 2R-3D:

"Whether having regard to the resumption of sovereignty over Hong Kong by the People's Republic of China, the Court of Appeal erred in concluding that it was bound to follow the opinion of the Judicial Committee of the Privy Council in Luc Thiet Thuan v. The Queen [1997] AC 131 (at p 145, per Lord Goff of Chievely).

Whether the Court of Appeal erred by failing to conclude that evidence of particular features and/ or characteristics of the Applicant, including mental infirmity of the Applicant ['adjustment disorder'] was admissible in the assessment of whether the partial defence of provocation applied, as well as in the assessment of whether the partial defence of diminished responsibility applied, and in failing to conclude that the Jury should have been directed accordingly."

29.This Court, when granting the certificate in Kong Kwong-san, said at page 2L-O:

"It is however apparent from the reasons we gave that there is a disparity of judicial opinion on the question of the form of directions which should be given by a judge to a jury when giving directions on provocation and where there is some evidence to the effect that the Accused may have some characteristic which may impact upon the gravity of the provocation complained of."

30.On 22 April 1999, the Appeal Committee of the Court of Final Appeal, in FAMC No. 4/1999, refused leave to appeal and observed at page 3:

"In our view, Luc Thiet Thuan is wholly convincing, and there is no reasonable prospect of the Court of Final Appeal disagreeing with the Privy Council on the point in question. It should be mentioned for the sake of completeness that in following Luc Thiet Thuan the Court of Appeal was not proceeding merely on the basis that it was bound by that decision. It said in terms that it also preferred the thinking in that case to that in Smith."

31.There has, however, been a further development in the law of provocation in England with the majority decision of the House of Lords in R v Smith (Morgan) [2000] 3 WLR 654, Lord Hobhouse and Lord Millett dissenting, upon which, for obvious reasons, Mr Macrae placed heavy reliance. At page 661F, Lord Slynn said:

"In my opinion justice requires that personal characteristics should be taken into account in the way I have indicated unless the section precludes it. In my view it does not. Accordingly I agree with the opinion of Lord Steyn in Luc Thiet Thuan v The Queen [1997] AC 131. In my opinion the Court of Appeal in the various cases to which I have referred were right to take the view that personal characteristics other than age and sex could be taken into account when considering whether the reaction to the provocation was that of a reasonable man. It follows that I also agree with the judgment of Potts J on this point in the present case. I would accordingly dismiss the appeal." (Emphasis supplied)

32.Mr Saw observed that the House of Lords' decision in Smith (Morgan) has not been received without critical comment, citing Blackstone's Criminal Practice, Ed. 2002, B.1.21, pages 130-1. To this might be added the useful analysis entitled "Compassion without Respect: Nine Fallacies in R v Smith" appearing in CLR [2001] 623-635. The article concludes with what seems to us to have been a valid overall criticism. With the greatest of respect to their Lordships who were in the majority in that decision, and although the article was not referred to in the arguments of either counsel in the present proceedings, we consider the passage to be worth repeating in this judgment. It reads:

"Like several other recent decisions of the House of Lords in criminal matters, the decision in Smith ..... replaces important moral distinctions in the law with half-baked pseudo-theories and worthy-sounding platitudes. In its attitude to the jury, it manifests an unholy alliance of judicial cowardice and judicial condescension. Cowardice because the ruling passes the moral buck to the jury, remaining as studiously non-committal as possible on the most basic question of the criminal law's moral structure. Condescension because at the same time it reflects unhappy assumptions about the moral sensitivity and wit of jurors, who are thought to be incapable of grasping subtle but important moral distinctions when these are embodied in law and explained systematically in open court. Even leaving aside these unhappy reflections on judicial character, the resulting inclination to hand matters over to the jury without explaining exactly what matters are being handed over threatens the rule of law, because it disables prosecutors and defendants alike from knowing what exactly they are up against in court, and hence from making their case properly according to law. The exercise of the criminal trial - as gradually reshaped by the House of Lords - threatens to descend into an unstructured plea for this or that sympathy vote in place of careful deliberation about the legally specified requirements of criminal liability.

One can readily appreciate how their Lordships feel cornered into such softening-up manoeuvres, especially in controversial areas such as the law of provocation. They are plagued by worries about the continuing aptness and legitimacy of the criminal law in the face of ever-expanding social pluralism (understood as the diversity of people's ways of life and relationships rather than the diversity of their opinions and psychological conditions). Nor should this dimension of social change be ignored. In fact we believe - and will show in another article - that ever-expanding social pluralism is relevant, in several important but relatively narrow ways, to the proper shape of the provocation defence understood as a (partial) moral excuse. It is one thing to recognize this and to set about working out the exact ways in which expanding social pluralism is relevant to the defence, so that one is equipped to devise a jury direction on provocation suitable to modern social conditions. But it is quite another thing - and in our view quite the wrong thing - to respond by throwing one's hands up in horror and inviting an evaluative free-for-all in which anything that induces sympathy by the same token helps to excuse, and in which little more than lip service is paid to the all-important objective (impersonal) standard of the reasonable person in section 3, and hence to the all-important self-respect of criminal defendants." (Emphasis added)

33.On any view, as Mr Macrae accepted, this court is bound by its previous decision in Kong Kwong-san and, if there is to be any review of the law, this can only be achieved in the Court of Final Appeal.

34.However, this possible route to a further appeal is not intended to be taken by the present Applicant as any sort of indication that he has some prospect of success should a further appeal be launched. Mr Saw made the valid comment that in Luc Thiet Thuan and Smith (Morgan) there was a significant common feature. In both those cases, medical evidence had been adduced at trial with a view to establishing that the power of self-control for each of the respective defendants was lower than that of the ordinary person, a feature which was also said to be applicable in Kong Kwong-san.

35.The facts of the present case are distinguishable from those in Luc Thiet Thuan, Smith (Morgan) and Kong Kwong-san in that there was no evidence of any kind suggesting that the Applicant had any relevant characteristics beyond his age and sex which might have been considered by the jury, even if the House of Lords decision in Smith (Morgan) was held in Hong Kong to have been correctly decided. His powers of self-control were to be determined by the jury, without more, in the light of the Homicide Ordinance and the objective criteria of the reasonable man.

36.This ground fails.

(3) Lies

37.The third ground alleged that the judge had failed to give any warning to the jury that lies could never prove guilt in themselves and that persons might lie for reasons other than guilt, in circumstances where there was a real danger that they could have believed that the Applicant's lies went to proof of his guilt on the charge of murder.

38.The Court of Appeal in HKSAR v Mo Shiu-shing [1999] 2 HKLRD 155, on which Mr Macrae placed reliance, laid down guidance as to when a "lies" direction should be given. Particular reference was made at page 164A-D to R v Burge & Pegg [1996] 1 Cr App R 163 where it was observed that:

"This judgment makes it abundantly plain that such a direction is not required in every case even if the jury might conclude that the defendant had told lies. At page 172E Kennedy L.J. said:

'.... the direction on lies ... comes into play where the prosecution say, or the judge envisages that the jury may say, that the lie is evidence against the accused; in effect, using it as an implied admission of guilt .... quite distinct from the run of the mill case in which the defence case is contradicted by the evidence of prosecution witnesses in such a way as to make it necessary for the prosecution to say that insofar as the two sides are in conflict, the defendant's account is untrue and indeed deliberately and knowingly false.'"

39.The Court of Appeal concluded at page 168E-H that:

"(1) In a large number of cases, where an allegation has simply been made against the defendant that he has been lying, this subject can be dealt with by the judge directing the jury in terms that this is an issue which relates solely to credibility, that is, that it is for the jury to decide whose evidence they believe. In such circumstances, no more needs to be said.

(2) Where there is a danger that the jury may believe that lying goes to proof of guilt, usually because the prosecutor has alleged that the defendant has lied and has addressed the jury upon the basis that the lie is supportive of the prosecution's case, a twofold warning should be given to the effect that:

(a) lies can never prove guilt in themselves; and

(b) that persons may lie for reasons other than guilt."

40.Returning to the present case, the trial judge directed the jury as follows:

"It is for you to decide how much weight, if any, to give to the defendant's evidence. You must always remember that even if you were to decide that you did not believe what the defendant told you, that would not relieve the prosecution of its burden of satisfying you by evidence so that you are sure that the defendant is guilty of the charge he faces." (Appeal bundle pp. 13-14)

41.This was repeated in the latter part of the summing-up when the trial judge directed the jury that:

"You must always remember that even if you were to decide that you did not believe a word of what the defendant told you, that would not relieve the prosecution of its burden of satisfying you by evidence so that you are sure that the defendant is guilty of the charge that he faces, and it is most important that you bear that in mind." (Appeal bundle pp. 44-45)

42.Plainly, in the circumstances, no more was required. We are aware that no exception was taken by the Applicant's counsel to the form and content of the judge's directions and it is not suggested that prosecuting counsel sought to rely upon lies as being supportive of the prosecution case. In this regard, we were shown, at our request, the draft of prosecuting counsel's final speech which appeared to confirm that no particular emphasis had been placed on the Applicant's alleged lies. The only reference to lies was to be found in the sentence: "Did you get the impression you were being lied to?"

43.This ground had no substance.

(4) Inferences

44.In his final ground, Mr Macrae submitted that "notwithstanding that the judge had said that he intended to give the jury an appropriate direction on the drawing of inferences (p. 4C-G), he never did so in circumstances which plainly called for, and which the judge evidently thought called for, such a direction".

45.In Tang Kwok-wah v HKSAR [2002] 1 HKLRD 286 at 291-293, the Court of Final Appeal considered it undesirable to define exhaustively the circumstances in which a special direction should be given on how the jury should approach circumstantial evidence or the inferences arising from it. It was held that normally a special direction was not required but that exceptional circumstances might arise, such as those which prevailed in Plomp v The Queen [1963] 110 CLR 234 which called for a special direction. Sir Anthony Mason, NPJ, at 304D-G put the matter in this way:

"Where both direct and inferential evidence are directed to the proof of guilt or a particular issue, the combination of the two will in most cases have a probative force which they will lack if considered separately.

70. Another matter to be taken into account is that the giving of the special direction, unless care is taken, may tend to suggest that different standards of proof apply to direct and inferential evidence.

71. That having been said, the special direction serves to emphasise and to elucidate the general requirement for proof beyond reasonable doubt in its application to circumstantial and inferential evidence. I agree with Mr Saw SC that the Australian case of Plomp v. The Queen (1963) 110 CLR 234 (where the prosecution case was wholly circumstantial) was one in which it was appropriate, desirable and necessary to give a special direction."

46.Plomp was in many ways a very unusual case. At first sight, the victim's death was an accidental drowning. The first part of the headnote summarises the issue the court in that case had to decide which reads:

"There is no difference in principle between cases where the evidence is direct and cases in which it is wholly circumstantial. Where the evidence on a charge of wilful murder is wholly circumstantial and the jury convicts, the question on appeal is not whether the Court of Appeal thinks that the only rational hypothesis open upon the evidence is that the accused is guilty, but whether the Court of Appeal thinks that upon the evidence it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused.

On a charge of wilful murder proof of the accused's motive for the killing may with all the other circumstances be used as evidence both that the deceased was killed and that the death was occasioned by the accused, and it is not necessary to prove that some act of the accused was responsible for the death before evidence of his motive for the killing can be used to prove his guilt."

47.The case with which we are presently concerned was not wholly circumstantial. On any view, the Applicant had killed the deceased with the knife he had thrown away after fleeing from the scene. Mr Macrae virtually conceded that the prosecution had proved manslaughter at least when he effectively said that the Applicant's account of self-defence was a non-starter. There was direct evidence from the Applicant's admissions and there was further direct evidence, limited in value though it may have been, from the video pictures observed by PW1 and PW2. If PW2 was to be believed then, as Mr Saw aptly expressed it, the inference that the Applicant took a knife (the object which reflected light) from the bag the Applicant had admittedly been carrying was so irresistible that effectively there was no other interpretation to be placed on this evidence. Equally, the deep knife blow to the deceased's chest, aside from the two other knife wounds, left very little to be decided by the jury on the issue of intent.

48.In Tang Kwok-wah, Sir Anthony Mason had observed in the preceding paragraph to the one we have cited that in a case such as the one with which we are presently concerned, where the prosecution relied on both direct and circumstantial evidence to establish guilt, a specific direction as to the approach to inferential evidence ran the risk of confusing the jury. The jury should not be asked to "compartmentalise the evidence".

49.In the Applicant's trial, the jury was given a direction as to their approach to the circumstantial evidence they had heard in the following terms:

"Yesterday, when Mr Raffell and Mr Moultrie addressed you, they made reference to the type of evidence which you have received in this case. They referred to it as 'circumstantial evidence'. The point has been made - and it has been made by both counsel - that there is no direct evidence that proves the defendant guilty of the offence with which he is charged.

The position, ladies and gentlemen, is this. Sometimes in a trial a jury is asked to find some fact proved by direct evidence. For example, if there is reliable evidence from a witness who actually saw a defendant commit a crime, or if there is a video-recording of the incident which plainly demonstrates his guilt, or if there is reliable evidence of the defendant himself having admitted the offence, these would all be good examples of direct evidence against him.

On the other hand, it is often the case that direct evidence of a crime is not available and the prosecution relies upon circumstantial evidence to prove a defendant's guilt. Now, that simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say, when taken together, will lead to the sure conclusion that it was the defendant who committed the crime.

It is not necessary for the evidence to prove an answer to all the questions raised in a case. It would certainly be a very unusual case in which a jury at the end of a trial could say, 'Well, we now know everything that there is to know about this case.' But the evidence must lead you to the sure conclusion that the charge which the defendant faces is proved against him.

Circumstantial evidence can be powerful evidence. Indeed, it can be as powerful or even more powerful than direct evidence, but it is important, ladies and gentlemen, that you examine it with care, as you must do with all evidence. And you must consider whether the evidence upon which the prosecution relies in proof of its case is reliable, and whether it does in fact prove guilt, or whether, on the other hand, it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or completely destroy the prosecution case.

And finally, ladies and gentlemen, while talking to you about circumstantial evidence, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence and mere speculation. Speculating in a case amounts to no more than guessing or making up theories without good evidence to support them, and neither the prosecution, the defence, nor you, the jury, should do that." (Appeal bundle pp. 15-16)

50.We consider that no more, in the circumstances of this case, needed to be said.

51.This ground fails.

Conclusion

52.In the light of ground 2, we shall grant leave to appeal, but treating the hearing as the appeal we dismiss the appeal.

Representation:

Mr D.G. Saw, SC, DDPP, and Mr Jonathan Man Tak-ho, SGC, of the Department of Justice, for the Respondent.

Mr Andrew Macrae, SC, instructed by Messrs Tai & Co, for the Applicant.