HKSAR v. Leung Kwok Chung

CACC 216/2023

[2025] HKCA 138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 216 OF 2023

(ON APPEAL FROM HCCC NO 252 OF 2020)

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J U D G M E N T

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1.On 15 November 2023, following a trial before Barnes J (the Judge) and a jury, Leung Kwok-chung, nicknamed “Man Sun Chung” (the applicant), was convicted of the murder of Lee Tai-lung, nicknamed “Tai Lung” (the deceased) by unanimous verdict of the jury. He was sentenced to a mandatory term of life imprisonment. The applicant seeks leave to appeal against his conviction.

2.Before the leave hearing, the parties had been informed that when I was the Deputy Director of Public Prosecutions and Director of Public Prosecutions between 2008 and 2013, this case came within the purview of my office. In response, the parties raised no objection to me hearing the leave application. At the leave hearing, Mr Derek Lai and Mr Dimitri Au-yeung, for the respondent, also mentioned that I had been involved in the grant of immunities in this case, which would have been in respect of an earlier related trial in 2011. Mr Lai informed Mr Joseph Tse, SC, and Mr Charles Chan, for the applicant, of my involvement in the case. Mr Tse was given the opportunity to obtain instructions from the applicant on the matter, and he confirmed that the applicant had no objection to me hearing the leave application.

The case at trial

3.This case concerned a triad killing between rival gangs. It was alleged that, on 4 August 2009, the applicant, together with Lee Wan-kong (known as “Kong Chai”), Lo Chin-wang (known as “Mao Chai”), Lee Chun-kong (known as “Po Chai”) and other persons, murdered the deceased.[1]

4.It was common ground at the trial that the deceased was a senior triad member of Sun Yee On Triad Society, who was attacked and killed outside the Kowloon Shangri-La Hotel in the early hours of 4 August 2009. The attack involved running down the deceased with a vehicle, followed by a group of men chopping him as he lay on the ground.

5.The principal issue at the applicant’s trial was whether he was connected in any way to this attack and guilty of the murder of the deceased. The jury were also directed that should they find him not guilty of murder, an alternative verdict of manslaughter by an unlawful and dangerous act might be considered, on the basis that the intent to kill or to cause grievous bodily harm was not proved against the him.[2]

6.The key witness in the prosecution case was Lam Ka-chun (Lam), PW1 at trial, who testified as an accomplice witness under immunity. He was a former member of the Tai Kok Tsui faction of the Wo Shing Wo Triad Society. He had previously testified as an immunised witness in an earlier related trial in 2011 (the 2011 Trial). He was the only witness who testified as to the involvement of the applicant in the killing of the deceased.[3]

7.The prosecution also called another immunised witness, Man Pui Ying (Man), PW2 at trial, a triad follower of the deceased. He testified as to the background of the deceased and what occurred at the scene of the murder.

8.In the late 1990s, when Lam was around 12 years of age, he followed his childhood friends nicknamed “Ng Tung”, “Sor Kai” and “Po Chai”, and joined the Tai Kwok Tsui faction of the Wo Shing Wo. Ng Tung was Lam’s “big brother”.

9.On 23 July 2006, there was a fight at a bar in Tsim Sha Tsui between two rival triad societies. It involved on one side, the deceased, a senior member of the Sun Yee On, and other members, including Man; and on the other side, the applicant, a senior member of the Wo Shing Wo, and other members. During the fight, the deceased struck the applicant with a bottle, leaving a long scar on his face. After the fight, members of the Wo Shing Wo, including Lam, were instructed to locate the deceased but were unable to find him.

10.Lam testified as to how he came to know the applicant, whom he knew by this nickname, Man Sun Chung. During the period between 2004 and 2009, Lam was assigned to act as a lookout at the gambling stall at Tung Chau Street Park, which was run by the Wo Shing Wo. According to Lam, the applicant and Mao Chai, another senior member of the Wo Shing Wo, were managers of the gambling stall. The applicant would come to the gambling stall 4 to 5 times a week, staying there from less than an hour to several hours.

11.Shortly after midnight on 4 August 2009, Lam received a call from Ng Tung, who told him that “something had to be done”.[4] Lam met other triad members, including Kong Chai, who was driving a salon car (Car A).[5] They went to Lo Kwan Street Park, where other triad members, including the applicant and Mao Chai, were present. Lam heard Mao Chai instruct Ng Tung and Sor Kai, “Don’t chop the head. Don’t chop the neck. Don’t chop the main artery.”[6] He heard the applicant give a similar instruction to them, “Don’t chop vital parts.”[7] Lam agreed in cross-examination that these remarks could mean that it was just to teach a person a lesson and not to kill. As for this exchange, the Judge explained to the jury that the evidence they had to consider was what was seen and heard by Lam.[8]

12.Mao Chai also instructed Kong Chai to act as a lookout. Ng Tung then told Lam that the target was the deceased and that he was to act as a lookout.[9]

13.The group of twelve men remained in Lo Kwan Street Park for about two hours, when the applicant ordered “Let’s go” and everyone got into the three vehicles.[10] Lam, Kong Chai and two others got in one saloon car (Car A). The applicant and three others got into another saloon car (Car B). While Mao Chai, Ng Tung, Sor Kai and Po Chai got into a 7-seater car (the 7-seater). The three vehicles went to the Chinachem cinema at Tsim Sha Tsui East, where they waited for about an hour.[11] Kong Chai then received a telephone call and drove to the slip road next to the Kowloon Shangri-La Hotel, acting as a lookout.[12] A short while later, the 7-seater sped into the forecourt of the hotel and knocked down the deceased. Ng Tung, Sor Kai and Po Chai alighted from the 7-seater, each holding a 50 cm long knife, walked towards the applicant and chopped him repeatedly.[13] Two men alighted from Car B and witnessed the attack.[14] The men got back into their vehicles and fled the scene. The three vehicles had been stolen and they were set on fire after the attack on the deceased.[15]

14.The deceased was certified dead shortly after he was conveyed to the hospital. The forensic pathologist performed an autopsy on the deceased and determined that the cause of death was “multiple injuries”.[16]

15.The applicant did not testify at the trial, his case was that he was out of the jurisdiction at the time of the offence, and he had no connection with the attack. It was alleged against Lam that he never met or knew the applicant, although he knew his name.

Grounds of appeal against conviction

Ground 1: Imbalanced jury directions

16.Mr Tse contends that the Judge’s directions to the jury were overall seriously imbalanced in favour of the prosecution, and she was unfairly antagonistic to the defence, thus conveying to the jury an irresistible impression of guilt on the applicant, rendering the conviction unsafe or unsatisfactory. He argues that this ground is supported by the following matters:

“(1) After reminding the jury of the evidence, the Judge started immediately to analyse the case in favour of the prosecution by emphasising thereby reassuring the jury of the reliability of Lam.[17]

(2) The Judge excessively emphasised unnecessarily the evidence of the triad background of the applicant, that this was a triad revenge attack, and that the applicant was a senior member of a triad society.[18]

(3) While correctly directing the jury that the prosecution did not have to prove motive in a murder trial,[19] the Judge on the other hand unduly excessively reminded the jury of the prosecution's theory that the present case was a triad revenge[20] when she was of the view that there was simply no evidence proving that it was, a view she expressed only at the end[21]. The Judge ought to have directed the jury at the outset that there was insufficient evidence proving this was a triad revenge attack, warned them against speculation, and directed the jury to ignore all the references in the case to a triad revenge attack.

(4) The Judge allotted very little time in the summing-up to explaining to the jury the defence case. When there was any mention of it, often it consisted of only a few sentences, sometimes in a dismissive tone, and was never expressed in a neutral let alone an endorsing tone.[22]

(5) When the defence argued there was no fingerprint or DNA evidence, the Judge reminded the jury of the experts’ evidence that it did not mean there was no contact by a person.[23] Yet the Judge should have also directed the jury that it was equally possible there was no contact as the defence suggested.

(6) The Judge gave the appearance of smearing at the defence argument that as the deceased was a protector of 20-odd establishments in Tsim Sha Tsui, he would have had lots of fights and many enemies.[24] The Judge should have handled this question more fairly by emphasising that this was probable, reasonable, and if accepted what effect it could have on the prosecution’s case that this was a revenge attack by his enemies, and how it could have undermined the prosecution's case that the applicant was involved.

(7) As for the defence submission that the applicant could not have orchestrated the attack since he was not proved to be a senior member of a triad society, the Judge unfairly remarked to the jury that they could consider this ‘if you want to’.[25]

(8) The evidence of Lam was very clear that at the park he only heard about a planned chopping. The defence argued the running down with a vehicle was a deviation from the original plan. However, the Judge dismissed this to the jury by directing, without any evidence, that what Lam did not hear about the running down did not mean this was not part of the plan[26], thereby depriving the jury of having to decide whether there was a deviation.

(9) The Judge incorrectly directed the jury to ignore the 2011 Trial by saying that it was not known ‘who had come to give evidence’ in that trial.[27] The Judge had ignored that it was an admitted fact that Lam ‘gave evidence for the prosecution under immunity in the 2011 Trial’, at which D4 [Yeung Man-ting known as Sor Lo Ting] was acquitted.[28]

(10) The Judge failed to remind the jury that despite Lam gave evidence under immunity in the 2011 Trial, D4 was acquitted of murder.”

17.By way of general observation, when making an allegation that a judge’s directions to the jury were imbalanced, it is incumbent on counsel to frame the ground of appeal put forward with care and accuracy based on clearly reasonable and supportable arguments. The ground should be expressed in accurate and precise terms devoid of any extreme or emotional language. Moreover, it should not be a nit picking exercise conjuring up as many points as possible in an attempt to substantiate an argument of imbalance. Even when there is a basis to take issue with a passage in a judge’s summing-up it is imperative that it be addressed and considered in its proper context. Therefore, the passage complained must not be looked at in isolation but examined in context by reading the summing-up as a whole against the relevant issues and circumstances at trial. With that in mind, I turn to consider the matters raised under this ground.

18.By Ground 1(1), it is complained that the Judge highlighted evidence favourable to the prosecution, emphasising Lam’s reliability as a witness. Mr Tse complains that the Judge did not explain that Lam’s lies were relevant to the defence case that Lam had framed up the applicant. He argued that when Lam initially told the police that the applicant was one of the knifers in the attack, this was his attempt to frame him up. Lam, in his evidence, acknowledged that this was incorrect and explained that the applicant was not one of the knifers. He also argued that Lam had initially stated to the police that someone else had picked him up from his home on 4 August 2009 but later stated it was his “big brother”, Ng Tung. He contended that this showed that Lam was trying to protect Ng Tung. However, Lam gave details of the involvement of Ng Tung in the attack on the deceased.

19.The fact that Lam had previously lied to the police and his probation officer had been extensively addressed by the Judge in her summing-up. She comprehensively summarised Lam’s testimony with appropriate references to the defence challenges of his evidence. This included the Judge detailing Lam’s criminal record and his involvement in triad criminal activities.[29] She emphasised with the jury Lam’s admission that he had previously lied and explained it was for them to decide whether or not he was telling the truth in court:[30]

“Because the defence put the case to Lam saying, ‘You lie. You fabricate this. You lie to the police so you must stick to that version so that you will get your immunity,’ and Lam said, ‘No, no, no, no.’ So because Lam disagree with this allegation, he did not admit that he had lie in court. He admitted he lie outside court when he gave the statements or interview to the police. He say to you that he did not lie in court. He is telling you the truth. Whether you believe it or not is another matter. It is up to you.”

20.The Judge also reminded the jury that he was giving evidence under immunity and that he had made four previous statements in relation to the case.[31] She went into detail in explaining the defence attack against Lam, that he was giving evidence under immunity to avoid prosecution for the murder, and that he was prepared to lie in his evidence against the applicant to protect himself. She instructed the jury: [32]

“So when you consider his evidence before you, you have to remember that he had lie before and also what did he get out of the immunity. He will try to protect himself. So can you believe him? Can you rely on his evidence? It is something for you to decide. But when you consider his evidence, you have to exercise particular caution.”

21.Whilst Mr Tse acknowledges that the Judge did emphasise the defence case that Lam’s evidence against the applicant was a fabrication, he complains that she did not explain in appropriate detail that the defence case was one of a frame up. It is difficult to see in the circumstances of this case the difference between an allegation that Lam fabricated his evidence to falsely accuse the applicant as a party to the killing of the deceased and that Lam framed up the applicant as a party to the killing.

22.The evidence that Mr Tse refers to that showed Lam framed up the applicant was all before the jury, and it was clear to them that the defence were alleging that Lam was falsely accusing the applicant of being a party to the killing. I do not find merit in this complaint.

23.By Ground 1(2) and (3), it is argued that the Judge “excessively emphasised” that this was a triad revenge attack by the applicant and should have restricted the triad references as this was prejudicial to the applicant’s fair trial.

24.Mr Tse accepted that the triad factor was relevant but contended that the Judge overly emphasised the subject. Once it was established that this case involved an attack between rival triads, it would seem that the references to triads were only a reflection of the evidence presented at trial. It was open to the prosecution, based on the evidence, to put its case on the basis that this was a revenge attack by the applicant. It is to be noted that there was no objection to the triad evidence being presented before the jury, except for the applicant being a senior triad. It should be noted that there were occasions when the defence relied on the triad involvement of the prosecution witnesses, Lam and Man. I do not consider that this argument has any merit, bearing in mind the subject matter of the case.

25.Relevantly, the Judge gave an appropriate warning about the triad evidence to the jury.[33] Mr Tse, nevertheless, submits it was not sufficient and did not address the issue of propensity. He refers to the judge’s direction in the 2011 Trial, in which he specifically addressed associating propensity for violence with triads. However, the Judge’s direction was appropriate in the circumstances. She told the jury:[34]

“Now, you may have feelings, strong feelings, about triads, but I must ask you not to base your finding of fact in any way because of your emotional reaction to triads. So you must not prejudice against the defendant just because you have heard that he is a senior member of the Wo Shing Wo triad society or that you heard that he was involved in this gambling store in Tai Kok Tsui in the Tung Chau Park.

In other words, you cannot find the defendant guilty just because he is a triad member. You cannot do that. You must base your verdict on the evidence you saw and heard in this case. So you must base your findings of fact and your verdict on an objective appraisal of the evidence. It is very important. Do not be prejudiced against the defendant. Do not assume that he must be guilty, because he is a triad.”

26.By Ground 1(4), it is complained that the Judge allocated comparatively little time in the summing-up to the defence case. It needs to be remembered that most of the evidence came from Lam, and to a lesser extent Man, and there was no evidence from the defence, although there were the Admitted Facts and the cross-examination by the defence of the prosecution witnesses. Consequently, the Judge’s summing-up reflected the focus at trial on Lam’s evidence and the defence challenges to the prosecution case. It cannot be said that the defence case was not appropriately reflected in the Judge’s summing-up, nor was there any complaint by defence counsel that the Judge had not put the defence case to the jury.

27.Mr Tse relies on the remaining sub-grounds to support his complaint under Ground 1(4):

(i)  The lack of fingerprint or DNA evidence (Ground 1(5)).

(ii)  The Judge “smearing” the defence argument that Tai Lung is a major protector, who would have a lot of fights and many enemies (Ground 1(6)). This sub-ground was sensibly withdrawn during oral submissions.

(iii)  The Judge remarked that they could consider “if you want to” the defence submission that the applicant could not have orchestrated the attack since it was not proven that he was a senior member of a triad society[35] (Ground 1(7)).

(iv)  From what Lam heard about the chopping, the applicant did not intend to kill the person and the Judge dismissed the defence argument that running down the deceased with the vehicle could have been a deviation from the original plan that Lam had heard (Ground 1(8)).

(v)  The Judge incorrectly directed the jury to ignore the 2011 Trial by stating that it was not known “who had come to give evidence” in that trial. It was argued that this was contrary to the admitted fact that Lam gave evidence under immunity for the prosecution in the 2011 Trial. (Ground 1(9) and (10)).

28.It is generally complained that the Judge spent little time and made few remarks regarding the defence case, and that when she did, she was dismissive of the points advanced by the defence. In my reading of the summing-up, there is no basis for this complaint. The defence case was properly reflected in the summing-up by the Judge. Mr Tse illustrates his argument by pointing out that there was no fingerprint or DNA evidence against the applicant, which was a point in the applicant’s favour that was not mentioned by the Judge. The applicant was in Car B, the Honda car, and that this and the other two vehicles had been stolen, which were discarded and set on fire after the attack. The evidence was that the applicant was a passenger in the Honda car and was not involved in the attack. It was stated in the admitted facts that certain items, including the Honda car, had been examined for fingerprints and DNA. The only items from which fingerprint impressions or DNA could be retrieved were in the boot of the Honda car. It was noted that the applicant’s DNA or fingerprints were not found on these items. The Judge drew the jury’s attention to the admitted facts in her summing-up. She mentioned that the applicant’s DNA and fingerprints were not found on any of the items.[36]

29.When addressing the expert evidence on the fingerprints and DNA the Judge explained to the jury:[37]

“But, of course, the major part of their evidence is that in view of the three cars that had been stolen, according to the Admitted Facts, that they have been burnt and so the burning and the heat resulting from the burning would have destroyed any DNA, any fingerprint even if they had been there in the first place. So that is really the point of their evidence.

So basically, they are both saying that the fact that no fingerprint or no DNA was located or retrieved at a particular scene or particular item is not evidence that the person or any person had not in contact, had not been touched. It does not prove the person had not touched it because the person could have touched it and somehow the print all the DNA is not left there. So that is really the purpose of the evidence.”

30.In the above passage, the Judge properly described and explained the expert evidence, having previously reminded the jury that the applicant’s fingerprints and DNA were not found on the items retrieved from the boot of the Honda car.

31.There was a previous history in this case between the two antagonists, the applicant and the deceased. There had been a fight between them during which the deceased had struck the applicant with a whiskey bottle and scarred his face. It was in this context, that the Judge made a concluding remark, which Mr Tse takes issue. Having referred to the prosecution case that this was a revenge attack because of the previous fight, the Judge said:[38]

“Now, the defence suggest there is no basis for Man Sun Chung to attack Tai Lung three years after the fight, so long had already passed. So that is what the defence said. And defence also made a comparison and said, ‘Look, Tai Lung is high up, 426, in Sun Yee On. Who is Man Sun Chung? Who says he is a senior member?’ You only got Lam saying that he is a senior member. You do not know what Man Sun Chung’s actual rank is. They are not on equal footing. Why would Man Sun Chung want to go and attack Tai Lung? That is what the defence suggest to you to consider. Of course, if you want to, you can consider this particular aspect of the comparison.” (Emphasis added).

32.Mr Tse complains that the Judge’s remark “if you want to” reflected a dismissive attitude on her part to the defence case. However, the impugned remark was directed to the comparison in the respective ranks of the applicant and the deceased, and in any event, the Judge went on to explain to the jury:[39]

“But I have already said to you that there is no evidence what exactly is Man Sun Chung’s rank, except from Lam. Lam said that he was a senior member and Lam described him being a boss and everybody is deference to him, greet him as Chung Gor and also had to alert the others that the boss is here. So you infer whether he was at least not a junior member of the triad society of Wo Shing Wo.”

33.There is no substance to this complaint. First, the Judge only made the impugned remark in respect of the comparison point which she went on to explain further to the jury in the following passage. Secondly, the comparison point seems to have little, if any significance, given there had been a previous fight between them.

34.It is complained that the Judge did not properly highlight that there had been a deviation in the plan to attack the deceased, which included running him down as well as chopping him. The Judge addressed this defence point as follows:[40]

“The defence submitted that if you say not to chop the head, not to chop the neck, main artery, vital parts, the intention is not to kill. The intention is just to teach him a lesson. Also, the defence submitted to you that there was a deviation of plan because there is no mention of hitting him or knocking him over with a seven-seater. That was outside the plan because the plan was just to chop him. So that is what the defence suggested to you.

But you must remember Lam’s evidence was not that all he heard was, ‘go and chop this person but don’t chop the neck, don’t chop the head.’ That was not all. His evidence was that there was discussion, which he did not pay attention to. He had no idea what other things were said. But he heard this particular part about do not chop the head, neck and so on, and also not chopping the vital parts and also Mao Chai giving the instruction to Kong Chai to be the lookout. That is all he heard, but does not mean that the plan was just that because he did not hear the others. So you do not know whether it is a deviation or not. So there is no clear evidence on that.”

35.However, the Judge continued to address this matter in assisting the jury on this issue:[41]

“So the evidence that support the knocking over of Tai Lung is a deviation, you just do not know, particularly bearing in mind Mao Chi is the driver. Mao Chai is the one who said not to chop the head and neck and so on. So Mao Chai, did he purposely hit Tai Lung over so that Tai Lung would not be able to get up to run away and could not resist the chopping or it was an accident that he veer off, well, in high-speed veering a bit more and knock him by accident. It is not clear. But there is no evidence to say that it is a clear deviation from the plan. That is all I am trying to explain to you, because Lam did not say, ‘they never said anything about only chopping, no other means.’ You just do not know. But the point, of course, is the evidence shows that both the head injury and the cut wound caused death. So that is where the causing death will come in, the ingredient, this evidence would be relevant.

Now, if you, of course, decide, conclude that knocking down Tai Lung was part of the plan so that he cannot run away, he cannot escape, he would be there on the ground to be chopped by the knifers, then what was the intent? If you knock somebody down and then chop him, is the intent to kill or the intent at least to cause serious bodily harm? So that is on the basis if you accept the part of the plan is also to knock Tai Lung down.

But if you cannot be sure that knocking Tai Lung down was part of the plan, you can only be sure that chopping was the plan, how about that? Then consider what was the plan. You are not talking about one person. You are talking about three people, each armed with not a fruit knife, a long knife. You saw it on the CCTV, you saw that. …”

36.The Judge went on to discuss the issue of murderous intent and joint enterprise. She specifically addressed the question of the joint plan and instructed the jury to evaluate the evidence as to whether the applicant had taken part in the attack, including giving instructions and overseeing the attack.[42]

37.This is yet another minor and inconsequential complaint. It is submitted that the Judge made a factual error about the 2011 Trial, primarily that she ignored that Lam had given evidence for the prosecution under immunity in that trial, at which one of the defendants was acquitted. Particulars of the 2011 Trial were set out in the admitted facts.[43] Whilst the Judge had not gone into the details of these admitted facts, she did remind the jury that some of the arrested persons had been charged, and the results of the trial were in the admitted facts.[44] Mr Tse seems to be making a point that one of the defendants, Sor Lo Ting (D4), who was at the park and got into Car B, was acquitted. The involvement of Sor Lo Ting had been mentioned by the Judge in her summing-up.[45] How his acquittal is relevant to the fact that Lam gave evidence at that trial is difficult to understand. Nothing further is said about the matter, and as noted in the admitted facts, other witnesses also gave evidence for the prosecution under immunity. It was an admitted fact that Lam gave evidence in the 2011 Trial, and it appears that no cross-examination on this point was made by the defence at trial. Even if there had been, given the reference to Lam as a witness in the 2011 Trial was in the admitted facts, it would have been a matter that the jury knew. However, the fact that a witness had previously given evidence in another trial, could and would not be an issue unless it was the subject of cross-examination, a prior inconsistent statement or an issue at trial. As already noted, the indications are that there was no cross-examination. There is no substance to this point.

38.I am not persuaded at all that any of these matters, either individually or collectively, support the applicant’s contention that the Judge’s summing-up was imbalanced, or that the Judge has erred in any way in respect of the individual matters. I do not find this ground or the sub-grounds to be reasonably arguable.

Ground 2: False alibi

39.Mr Tse submits that the Judge, in the summing-up, erred in adopting an erroneous circular approach on the issue of whether the applicant’s alibi was false. He points out that the Judge directed that Lam’s identification (or recognition) of the applicant could prove that the applicant’s alibi was false, and yet she also directed that if the applicant’s alibi was false, that could be used to support Lam’s identification of the applicant. He argues that the Judge’s direction on alibi would only serve to generate confusion and unnecessary difficulties for the jury.[46]

40.The respondent argues that there was no confusion or difficulty on the part of the jury. It is submitted that when considering whether the alibi was false, the jury, as instructed, would be required to consider all the relevant evidence. The respondent submits that the evidence that the alibi was false came from the applicant’s travel records. He left Hong Kong through an Immigration control point on 1 August 2009 without any proper re-entry record. However, he attended the Wanchai Police Station after more than 10 years on 21 January 2020, when he surrendered himself to the authorities. The respondent further submits that there was no real issue of misidentification by Lam of the applicant. In this regard, the jury did not require any assistance to determine whether Lam might have misidentified the applicant. Lam had known the applicant for 5 years and had contact with him on numerous occasions. The respondent finally submits that there was no issue of misidentification as the defence case was that Lam did not know the applicant and that he was lying and framing up the applicant in the murder.

41.The Judge, when directing the jury on alibi, followed the standard direction.[47] She explained to the jury that the applicant was relying on his alibi that he was not in Hong Kong at the material times, adding that if they were to conclude the alibi was false, that in itself did not prove his guilt, which may be invented to bolster a genuine defence.[48] She said:[49]

“Now, I will give you my direction on how to deal with alibi. I must remind you that it is not for the defendant to prove that he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. You must also remember and bear in mind that even if you conclude the alibi was false, that does not by itself prove the defendant’s guilt. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a genuine defence.

So if you decide that the defendant’s alibi is false, that does not prove that Lam’s identification, that is, recognition of the defendant, must be right. But if you decide that the defendant had no innocent reason for putting this alibi forward, then you may treat this false alibi as some support for Lam’s identification, recognition. Of course, if you are sure of Lam’s identification, recognition of the defendant is reliable, it would follow that the defendant’s alibi is false.”

42.The Judge then summarised the circumstances that the prosecution relied on to infer that the alibi was false:[50]

“The prosecution’s case is that, based on the following that I will remind you, it is reasonable to infer that Man Sun Chung had departed Hong Kong on the 1^st and had sneaked back by illegal means to Hong Kong to be present and on 4 August part of the joint plan to attack Tai Lung and then after the attack sneak away from Hong Kong again. That is what the prosecution says.

Now, what evidence are they relying and asking you to draw such a conclusion? First of all, Lam’s evidence that Man Sun Chung was there on the 4^th, both at the park, at the Chinachem, and asking you to draw the inference that he must also be there at the Shangri-La Hotel, the first one. Second one, after Tai Lung was killed, 31 persons were arrested by the police. And so it would be unreasonable to infer that Man Sun Chung would be hanging around knowing that all these people were arrested, so he must have gone away hiding himself somewhere so he had sneak out of Hong Kong after the crime. That is what the prosecution ask you to infer.” (Emphasis added)

43.The Judge listed further matters that the prosecution relied on to show that the alibi was false.[51] She referred to the absence of any record of the applicant either entering or leaving Hong Kong after he was recorded leaving Hong Kong on 1 August 2009; the triad expert evidence that triad members were able to leave and enter Hong Kong illegally; and the applicant entering Hong Kong illegally by appearing over 10 years later in Hong Kong. She pointed out that the prosecution were submitting that with these matters in mind, the jury could be sure that the alibi was false and that the applicant came back to Hong Kong to be present for the attack on the deceased on 4 August 2009. She concluded with the following instructions to the jury:[52]

“So basically, the prosecution is relying on a false alibi, that the defendant engineered this false alibi. So consider whether you can be sure that the alibi is false. If you can be sure the alibi is false, then follow the direction I have given you. If it is false, because by itself it does not prove that Lam must be correct to say that the defendant was there on the 4^th. But if you decide there is no innocent reason for the defendant to make up a false alibi, then you can use that as part of the alibi to support the identification by Lam.

So consider all the evidence, whether you can draw this irresistible inference that the alibi was false, in other words, whether you can accept Lam’s evidence. Because if you find Lam’s evidence true and reliable, Man Sun Chung was there on the 4^th, then he must have come back somehow after leaving 1 August. And then you can decide whether that was a false alibi created by the defendant. And if so, use the direction I have given you.”

44.Mr Tse developed his argument in respect of this ground in oral submissions as follows. He explains that whilst there is no record of when the applicant returned to Hong Kong, at the same time, there is nothing to indicate when he actually returned other than some time before the day he surrendered to the police on 21 January 2020. As the sole evidence that the applicant was present at the park and the attack on the deceased comes from Lam, it is only on this evidence, if accepted, that the applicant’s alibi could be false. He argues that it was wrong to direct the jury that if they found the alibi was false, they could use that evidence to support Lam’s identification of the applicant. This is the basis of his circularity argument.

45.The respondent has not addressed this argument except to rely on the Judge’s final comments in the above quoted passage.

46.The Judge’s introductory directions on alibi were correct. She told them that if the applicant’s alibi was false, that did not prove that Lam’s identification was right; that if they decide that the applicant had no innocent reason for putting forward the alibi, then they may treat it as false as providing some support for Lam’s identification; and that if they were sure of Lam’s identification, it would follow that the applicant’s alibi was false.[53] However, as noted above, when the Judge listed the matters that the prosecution were relying on to show that the alibi was false, the first matter she mentioned was Lam’s testimony that he saw the applicant at the park and at the Chinachem, and that they could infer that he was also at the Kowloon Shangri-La Hotel. After listing other matters, she reminded the jury, “So the prosecution ask you to bear all this in mind to decide whether you can be sure that the alibi was false, that he created the alibi saying that he left Hong Kong on the 1^st, in fact he sneaked back in Hong Kong after the 1^st, definitely before 4 August.”[54] She then proceeded to direct the jury that if they find that the alibi was false “then you can use that as part of the alibi to support the identification by Lam.”[55]

47.The issue is whether the jury would have impermissibly reasoned that the alibi was false, taking into account Lam’s evidence of identification before they had accepted his evidence, and then relied on the false alibi to prove Lam’s evidence of identification. I find this ground of appeal to be reasonably arguable.

Ground 3: Wrongful admission of hearsay evidence

48.It is pointed out by Mr Tse that the bulk of the prosecution’s evidence that the applicant was a senior member of a triad society was from Lam. He contends that this evidence was hearsay or opinion evidence.[56] He argues that there were occasions when this evidence was given to assert the truth of the applicant’s status within the triad society, and was therefore inadmissible hearsay, which the Judge had a duty to exclude from the jury’s consideration, and to give an appropriate and adequate direction for them to ignore it. He submits that the Judge was in error in failing to do so.

49.The evidence before the court was that Lam did not specifically know that the applicant was a senior triad, other than from his dealings with him and observations as to how the applicant conducted himself in the operation of the gambling store and amongst other triad members.[57] Lam said he had been told by his big brother, Ng Tung, that the applicant was a senior triad.[58] However, as already noted, there was other evidence from which to draw the inference that the applicant was a senior triad. It is not without significance that both Lam and Man gave direct evidence of their membership in the triad society to which they belonged and the involvement and activities of others. It was also relevant how they regarded or treated others in the factual matrix of this case, which evidenced their state of mind or belief and would not have offended the hearsay rule[59]: Oei Hengky Wiryo v HKSAR (No 2). As I have already noted, the Judge dealt with Lam’s evidence as to why he regarded the applicant as a senior member of the Wo Shing Wo and the other evidence from which to draw such an inference.

50.I am not satisfied that this ground is reasonably arguable.

Ground 4: Conviction unsafe and unsatisfactory

51.This is a general ground that in the circumstances the conviction is unsafe or unsatisfactory.

52.I do not find this ground reasonably arguable.

Conclusion

53.It follows from what I have said that I do not find the grounds of appeal to be reasonably arguable, except for Ground 2. The application for leave to appeal against conviction is accordingly granted, but only for Ground 2.

Mr Derek Lai, SADPP and Mr Dimitri Au-yeung, PP, of Department of Justice, for the respondent

Mr Joseph Tse, SC, and Mr Charles J Chan, instructed by Ivan Tang & Co, for the applicant