HKSAR v. Liu Kwai Wing

CACC000199/2001

CACC 199/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 199 OF 2001

(ON APPEAL FROM HCCC 301 OF 2000)

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

Date of Hearing: 26 February 2002

Date of Judgment: 28 March 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):

Background

1.On 17 May 2001, the Applicant, aged 40, was convicted on three counts, including the murder of Hung Hing-tong (the deceased), following a trial before Gall J and a jury. He now seeks leave to appeal against conviction.

2.The first and second counts alleged that on 28 January 1999 the Applicant, together with five others, named as Cheung Chi-him (Cheung), Fan Pak-kei (Fan), Cheng Yi-on (Cheng), Lau Yun-keung (Lau) and Lau Wai-ming (Tommy) inflicted grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212, on Yeung Yuk-lan and Yeung Chin-keung respectively. The jury convicted the Applicant of the alternative of assault occasioning actual bodily harm on count 2 having earlier, apparently, been directed that this particular victim's injuries did not amount to grievous bodily harm. The third count alleged murder.

3.The general allegation against the Applicant was that he had given the order to triad subordinates to burn a shop in a busy shopping precinct. He played no physical role in the attack which was carried out by his accomplices. In the event, they fire-bombed the shop resulting in the death and injuries reflected in the counts on the indictment.

4.Lau and Tommy have never been brought to justice. We have been informed that they are still at large. The other three of those named as the Applicant's accomplices, all of whom at the time of these offences were teenagers aged between 16 and 18, pleaded guilty before Nguyen J more than two years ago to the manslaughter of the victim named in count 3 of the present indictment. Their pleas, which were in addition to their pleas of guilty to the other two counts of inflicting grievous bodily harm, were accepted by the prosecution. Nguyen J imposed sentences totalling sixteen years on Cheung and Fan and fifteen years on Cheng. After this, they all sought leave to appeal. Cheung and Cheng were unsuccessful in this regard. Their applications were dealt with on 18 July 2000 in CACC 62/2000 (unreported).

5.Fan's application was ultimately dealt with almost eleven months later. This was as a result of his decision not only to provide information to police but to give evidence against the Applicant who he had named as the culprit responsible for giving the order to launch the arson attack. Seemingly, he was motivated, at least in part, by the severity of his sentence which had left him with a grudge against the Applicant who he blamed for having involved him. Fan's application on 12 June 2001 (also CACC 62/2000) for leave to appeal was heard after he had given evidence against the Applicant. It was on the basis that he had fully cooperated with police and had provided the evidence which secured the conviction of the Applicant that the Court of Appeal reduced his overall sentence by fifty per cent from the twenty-four-year starting point adopted by the judge. The judgment states that:

"(Fan) has, as he said he would, given evidence in the trial of one of the core group of men responsible for ordering the arson attack to take place. We have been told, and we accept that D2's evidence was crucial to the outcome of that trial."

6.Returning to the matter presently before us, Mr Marash, SC, on the Applicant's behalf, subjected a number of the directions given to the jury in the summing up, relating to Fan's evidence, to heavy criticism. We shall return to this aspect having firstly looked at the nature of the case against the Applicant.

7.The Applicant did not give evidence and no other evidence was called on his behalf.

Prosecution's case

8.The prosecution's case against the Applicant depended entirely for its success on Fan's evidence. He alleged that the Applicant and his five accomplices (including Fan) were all part of a joint enterprise, stemming from the order given by the Applicant, to set fire to a shop which sold pirated copies of VCDs in Allied Plaza, 760 Nathan Road, Kowloon. The Applicant had himself sold pirated VCDs from other premises in Allied Plaza from the middle to the end of 1998.

9.By way of general background, the Applicant was, according to Fan, a triad leader in the Sun Yee On Triad Society and the 'big brother' of Lau. Fan's protector in the Sun Yee On was Lau. The other accomplices, Lau's cousin Tommy, Cheung and Cheng were also members of the Sun Yee On Triad Society. Before 28 January 1999, Fan often saw the Applicant. He described their relationship as being "quite good".

10.The premises which were targeted for attack were at Unit G13 on the ground floor of the Allied Plaza where Ngan Kwan-shan sold pirated VCDs. In about mid-January 1999, he had a dispute with 'Ah Ken', who was an employee at another VCD shop in Allied Plaza. Ah Ken was beaten up. Subsequently, Ngan paid him $5,000 as compensation to settle the dispute.

11.At about 11.00 p.m. on 27 January 1999, Fan was telephoned by his big brother Lau who told him that the Applicant had invited him (Fan) to have a late night snack. Fan went to the To Chung Sing cooked food stall in Shek Lei Pui. There, he saw the Applicant, who he referred to as 'Ah Kung', with Lau, Tommy, Cheung and Cheng.

12.The Applicant and Lau were talking about Ah Ken having been beaten up. They were angry because the compensation paid to Ah Ken had been so little. They talked about revenge. The Applicant said something about "burning the shop", which Fan understood to mean, "to destroy the shop by fire". The Applicant told Fan, Cheung and Cheng to do it the next morning.

13.Fan stayed at the cooked food stall for about an hour before leaving. Between 2.00 and 3.00 a.m. on 28 January 1999, he received a telephone call from Lau. As a result, Fan went by himself in a taxi to Lau's address on the Shek Lei (New) Estate. It was after he arrived there that he was given further instructions about what was to be done in the morning. Cheung and Cheng were also present when this was done. It seems that they had taken a separate taxi because, at about 2.30 a.m. that same morning, a taxi driver had picked up three males who asked to go to the Shek Lei (New) Estate. During the journey the taxi driver overheard two of the passengers speaking. The older of the two was saying "Luen Hop" (meaning Allied Plaza) would be "blown up" the following day. He heard the younger passenger complaining that he would no longer have a job and it was suggested that it should be done in the morning when there were fewer people present. The older person said it should be done at noon and that he did not care if people were injured.

14.When Fan arrived at the ground floor of Lau's building, Lau, Cheung and Cheng were already there. They went to a nearby park and talked. Lau told them "to do the job on the next day" in the morning, after 11.00 a.m. Lau told them to "burn the shop at Allied Plaza" and said that Tommy would take them by car to Allied Plaza where Cheng would act as a lookout and Cheung and Fan would be responsible for throwing the "firebomb". Afterwards, they went to Lau's flat on the 6th floor of the lower block of Shek Chun House to stay the night.

15.When they awoke in the morning, Cheung called Tommy to come round to pick them up to do the job. Tommy duly drove the three teenagers, allegedly in the Applicant's car, to the old estate of Shek Lei Pui where he told Cheung to purchase two bottles of thinner. This was done. Tommy then told Cheng to obtain something which could be stuck into the bottles for burning and also some sandpaper to disguise the purpose of the purchase of materials for burning.

16.When this had been done, they all drove to Allied Plaza, driving around it a number of times to locate the shop they had been told to target. Eventually, Cheng pointed out the shop. Cheng was dropped off to act as a lookout inside Allied Plaza, and Tommy took Fan and Cheung to Boundary Street where he parked. He took out the two bottles of thinner and other materials they had acquired to make the "firebombs". When he had finished, he told Fan and Cheung about the escape route.

17.Fan and Cheung took the two bottles of thinner and went inside Allied Plaza. Seeing no sign of police, Cheung asked Fan to shield him while he threw the "firebombs" into the shop. Fan walked in front of Cheung and when they were near the shop, Cheung lit the bottles and tapped Fan on the shoulder. Fan turned around and went away, and Cheung threw one of the "firebombs" into the shop. It appears that the second one was dropped in the corridor just outside the shop. Fan looked back and saw the fire was "big". Afterwards, two broken glass bottle necks were found at the scene, one on the outside of Shop Unit G13 and the other was well inside the shop.

18.It is apparent that when this attack was carried out, there were two members of staff inside the shop. It was at around 12.55 p.m. that the employees of Ngan's shop (Unit G13) heard the sound of breaking glass, and then saw fire and smoke. At that time, the deceased was at a photographic shop (Unit G43) more or less opposite Unit G13. He was close to the area where the lighted bottle of thinner had dropped to the ground outside Unit G13. He was immediately set on fire in the explosion which followed. Stumbling into Unit G13 he came in contact with a woman who also caught fire (count 1). Another passer-by tried to help the deceased and he caught fire (count 2) although he was able to restrict the extent of his injuries to a relative minimum.

19.Cheung and Fan ran away, making their escape through the MTR station. Some of Cheung's clothing had caught on fire and he was slightly injured. Tommy then drove them away. While driving, Tommy called Lau and told him the job had been done but that Cheung's leg had been burnt. Fan and Cheung went to Lau's flat on the 6th floor at Shek Chun House, Shek Lei Pui. Lau told Cheung that he should see a doctor but he first called the Applicant and asked him to come over to see Cheung. About 20 minutes later, the Applicant arrived at Lau's flat with Tommy.

20.At 1.48 p.m. the Applicant and Tommy were photographed by the CCTV camera in lift no. 5 going from the ground floor to the 6th floor of Shek Chun House where Lau's flat was located.

21.The Applicant checked Cheung's injury and told him that he would take him to a doctor. Lau then called Cheng and after a conversation with him, he (Lau) related to the others that several persons had been burned at Allied Plaza and that the situation there was "chaotic".

22.The Applicant, Fan, Cheung and Tommy left Lau's flat. The Applicant was going to take Cheung in his vehicle to see a doctor.

23.At 1.56 p.m., Tommy was photographed in lift no. 5 going from the 6th floor to the ground floor of Shek Chun House.

24.At 2.02 p.m., the Applicant was photographed in the company of Lau, Cheung and Fan in one of the lifts going from the 6th floor to the ground floor in Shek Chun House.

25.Fan then went to his flat in the same housing estate.

26.At 2.37 p.m., the Applicant, Lau and two other persons were photographed in lift no. 5 going from the ground floor to the 6th floor in Shek Chun House.

27.Later that afternoon, Lau called Fan who then returned to Lau's flat. There, he saw the Applicant, Lau and Cheung. Apparently Cheung had been unable to see a doctor. Shortly afterwards, Cheng came to the flat. The Applicant asked how the job had been done and he was told how the "firebomb" had been thrown creating a chaotic situation and a big fire.

28.According to Fan, the Applicant left at around 4.00 p.m. with Cheung to try once more to see a doctor. At 4.22 p.m. the Applicant, Cheung and Lau were photographed in lift no. 5 going from the 6th floor to the ground floor in Shek Chun House.

29.After Cheung had seen a doctor, the Applicant told Fan, Cheung and Cheng that they had to seek shelter and that they would go to Lantau Island where he had arranged for some people to meet them. They drove to Tung Chung, changed cars and were taken from there to Mui Wo in Lantau. They stayed for two or three days at the Ngan King Bungalow House. The Applicant and Lau visited them every night.

30.Subsequently, the Applicant and Lau announced that it was no longer safe to stay there and that another house had been arranged in Yuen Long. In due course, Fan, Cheung and Cheng went by taxi to a house in Yuen Long. They were arrested there on 10 February 1999. During their stay in the Yuen Long house, the Applicant visited them once.

31.Fan did not receive any payment for carrying out the firebombing. He had done it, he said, because the Applicant had asked him to do so as "revenge for Ken".

32.On 1 March 1999, the Applicant was questioned by police as a possible witness. A written statement was taken (Exhibit P99) in which he said that he had been told about the disagreement between 'Ah Ken' and someone he called 'Ah Shan'. It was his understanding that Ah Shan had beaten up 'Ah Ken' and had then paid Ah Ken $6,000 in medical expenses. However, the Applicant told police that when the incident occurred on 28 January 1999, he was at home asleep and that he had no knowledge of who the culprits might be.

33.About sixteen months later, when he was arrested on 22 June 2000, the Applicant was again interviewed. He denied having ever been to Lau's 6th floor flat in Shek Chun House and said that he did not know in which building on the estate he lived. He was evasive in his answers about events between the evening, on 27 January 1999, until after the incident on the following day. He did, however, deny taking Cheung to see a doctor and he said he had only heard about the injury in newspaper reports. He also denied finding a place for his accomplices to lie low in Lantau or finding them a place in Yuen Long where they could continue to hide.

34.The Applicant appeared to admit at one stage that he had been with his wife, Lau and his wife, Tommy and his wife, Cheung who he referred to as 'Him Chai', Cheng who he called 'On Chai' and another (presumably Fan) who he called 'Fei Kei', when he had "night snacks" with them at about 11.00 p.m. on 27 January 1999. He said he had not noticed what the others said. Later, however, he said that he could not be sure that the evening he had been talking about was the night about which police had been making enquiries.

35.The Applicant also admitted, having earlier denied that he had taken any part in a VCD business at Allied Plaza, that he used to have a VCD shop in Allied Plaza from about the middle to the end of 1998 which had closed down.

36.Police then showed the Applicant a number of CCTV photographs taken inside a lift in Shek Chun House between the ground floor and the 6th floor, taken on 28 January 1999 between 2.02 p.m. and 4.23 p.m. He identified Lau, Cheung, Cheng, Tommy and himself in the photographs. When he was asked why he was in the lift with Cheung, he did not at first answer, but then said it was coincidence. When asked why, in another photograph, he was in the lift at 2.02 p.m. with Lau, he had no answer, but then said he couldn't remember.

Grounds of Appeal

Prejudice caused by misdirection about the Applicant's role

37.In his first ground of appeal, which was closely allied to ground 2 to which we do not need to give separate consideration, Mr Marash, SC, complained that the judge had misdirected the jury, to the Applicant's prejudice, by repeatedly using phraseology to the effect that the Applicant had told the persons who carried out the arson attack in Allied Plaza to "blow up" the shop. This, he submitted, carried with it the implication that the Applicant could only have intended to kill or cause really serious bodily injury to someone.

38.The evidence given by Fan was that he had heard a conversation on 27 January 1999 between the Applicant and Lau who were talking about 'Ah Ken' being beaten up. They were looking angry and they were not happy at the small amount of compensation which had been paid. When Fan was asked by Mr Moorfoot, for the prosecution, to continue, the transcript reveals the following passage:

"A. And they said about revenge.

Q. When you said 'they', who do you mean by 'they'?

A. The accused and Lau Yun-keung.

Q. Continue.

A. They were talking and the accused said about burning the shop.

Q. And what did you understand by that?

A. To destroy the shop by fire.

Q. Good. What else was said?

A. Cheung Chi-him, Cheng Yi-on and I were told to do that.

Q. Yes, and who told you that?

A. The accused.

Q. Yes, what else?

A. Nothing else.

Q. Was there any mention about when this was to be done?

A. Yes, it was said on the next day.

Q. Any time of the day mentioned?

A. In the morning."

(Emphasis added) (Appeal bundle p. 169)

39.A little later in chief, when Fan was dealing with events immediately after the arson attack, he described how Cheung's leg had been burnt and how they made their way back to Lau's flat in Shek Lei Pui. Lau then telephoned the Applicant so that the Applicant could take a look at Cheung. This was done about 20 minutes later when the Applicant arrived at the flat with Tommy. Later, Cheng also came to the flat. An unsuccessful attempt was then made to take Cheung to see a doctor. Before Cheung was able to see a doctor later in the afternoon, there was a conversation in the flat which was when Fan returned to the flat after taking a shower in his own home. The transcript reads:

"Q. And what happened when you went back?

A. When I entered the house I saw Lau Yun-keung, the accused, and Him Tsai, and a few minutes later, On Tsai also arrived. We talked and the accused asked us how we had done the job and he asked On Tsai what was the situation about.

Q. Tell us as much of that conversation as you can remember.

A. We told him what we had exactly done, and On Tsai said that the situation was chaotic outside and the fire was big.

Q. Yes.

A. The accused then said, 'Now we have to take shelter'."

(Emphasis added) (Appeal bundle p. 175)

40.Neither this extract of evidence nor the earlier passage we have cited were referred to in the summing up. Their combined effect, uncontradicted by evidence from any other source, was that the Applicant had left his teenage accomplices to burn the VCD shop at Allied Plaza during the morning after his order had been given. It was left to them and to Tommy as to how this would be accomplished. Later in the day the Applicant discovered the manner in which his orders had been carried out.

41.By contrast to this evidence, the way in which the judge summed up to the jury gave a somewhat different impression about what the Applicant had instructed his accomplices to do. The summing up was extremely brief but there were constant repetitions in the 23 pages which it occupies to what was said to have been the effect of Fan's evidence about the orders given by the Applicant. It is necessary to look at these as it is their combined effect in such a short summary of the evidence which is the subject of complaint. The passages were as follows:

"(Fan) said he heard them talking about an incident where someone had been beaten up, and that it was suggested in his evidence, he said, by the accused that it was pointed out to him - and he agreed with Mr Dunn that on two other occasions he had given slightly different versions as to who said it first, Lau or the accused - but he said in evidence that the accused said that 'next day someone should go to Allied Plaza and blow up a shop', that is, the VCD shop.

If you are sure the accused said that, then you go on to consider further matters that I will give to you. But that is your starting point, because if you are not sure the accused said that, that is the finish of these three counts.

The first question you say to yourselves when you go to the jury room, after you have settled down and had some general discussion is, 'are we sure that Fan is telling the truth when he said that the accused instructed them to blow up the shop in Allied Plaza next day?' And if you are not sure, anything less than sure, then you automatically acquit and you come back here and that is the end of the matter. I cannot stress that enough." (Emphasis added) (Appeal bundle pp. 15-16)

42.Soon afterwards, the judge gave a similar direction when he said:

"So what would you have to be sure of in respect of the first offence? You would have to first of all be sure that Fan was telling the truth; you would first of all have to be sure that the accused said 'go to Allied Plaza and blow up a shop.'" (Emphasis added) (Appeal bundle pp. 16-17)

This was followed, a few moments later, with the comment:

"Now the argument here is, what agreement would the accused have had with these three young men, if he had any agreement at all. But back we are: first of all you ask yourself 'are we sure that Fan was told by him to do this bombing.' Secondly, 'what was the agreement?' Well, we can, without speculating, know some things: we know, for example, that it was to blow up a shop. Now it is open to you to say what do those words mean. The blowing up of a shop would, you might think, contemplate the destruction of the inside of it ....." (Emphasis added) (Appeal bundle p. 17)

A little later, when dealing with the ingredients of murder, the judge said:

"You can look at all those facts which I have given you, which may appeal to you - you can reject them if you wish - but looking at those facts you could not infer that he intended that somebody be caused serious harm or killed unless you were sure that from all those facts he appreciated there was a virtual certainty that someone would be seriously harmed or killed.

So there is your second test. The first one is: are we sure when Fan says that that is what you go and do, are we sure that (the accused) ordered them to fire bomb the shop. If you are not sure you acquit. If you are sure you say 'what was in his mind? What are we sure that he would have known from the facts that we have before us? You look at all those facts and you say, 'Are we sure that it was a virtual certainty, and he must have known that it was a virtual certainty when he sent them off, that someone would be killed or caused serious harm?' If your answer is 'no, we are not sure', then you acquit of murder and you acquit of the other two offences." (Emphasis added) (Appeal bundle pp. 19-20)

Immediately after this, the judge turned to the alternative of manslaughter by reason of the lack of an intent to kill or cause grievous bodily harm, through an unlawful act, saying:

"There is another twist to this tale though: if you find that the accused you are sure gave the instruction for the fire bombing but you find that you do not have enough - you are not sure that he appreciated that it was virtually certain that someone would be injured or killed and, therefore, you are not sure, because you are unable to draw the inference that he intended that they be killed or serious harm be done to them - if you find it was no more than he intended these young men to go and commit an unlawful act, that is, setting fire to a shop - and as a matter of law it is an unlawful act - if you are sure that that is what he intended, then he would be guilty of the offence of manslaughter." (Emphasis added) (Appeal bundle p. 20)

43.The judge then went on to say:

".... (the prosecution) would have to prove so you are sure that Fan was truthful in saying that the accused said those words, you would have to find that the accused had the intention that the place be fire-bombed, you would have to find that the fire bombing was carried out - which is not difficult because we know it was - you would therefore have to be sure that the accused committed the act which caused the victim's death. In other words, he ordered the fire bombing which, the order to the young men to bomb the shop and their agreement to do so and the carrying out of that order, you would have to find the act was intentional - I think you would have little doubt about that; if he orders them to do it he meant that it happen - and that it was unlawful - fire-bombing is unlawful - and that the act was one which all sober and reasonable people would realize must subject the victims to the risk of some harm." (Emphasis added) (Appeal bundle pp. 20-21)

This was shortly followed by a direction in these terms:

"For the 3rd count, again the starting point is am I sure that he gave the orders to bomb the shop. If not, then everything goes; murder goes, manslaughter goes. There is nothing left if you are not sure of that. If you are sure of that you go on to decide whether you are sure you can draw the inference that he intended somebody to be harmed, seriously or killed, from the fact that he must have appreciated that it was virtually certain that that would happen if the shop was bombed in these circumstances. If you are sure of all those factors, then you will convict, anything less and you will acquit." (Emphasis added) (Appeal bundle pp.21-22)

44.The last direction of relevance to this ground of appeal, moments before the jury retired to consider the verdicts, was as follows:

"Just to recap a little bit. Fan is your principal problem. Look at him very carefully, bear in mind all the warnings that I have given, and bear in mind that if, notwithstanding all those warnings you still believe so you are sure that he (the accused) said 'go and blow up that shop in Allied Plaza', if you are sure he said that then that would be an order given by the accused which, if the other elements of the offence are made out, would be sufficient to find these charges proved. Anything less than that and you will, of course, acquit." (Emphasis added) (Appeal bundle p. 22)

45.No doubt the judge had in mind, when making constant references to the allegation that the Applicant had given an order to "fire-bomb" or "blow up" the VCD shop, that this is what in fact did happen. It was also the kind of phraseology which had frequently been employed by Mr Dunn, who defended in the court below, when he was cross-examining Fan. It was, however, incumbent on the judge on this crucial aspect of the evidence, which was directly related to the Applicant's state of mind, to have specifically drawn to the jury's attention to what had been said by Fan on this issue. Unfortunately, at no stage was this ever done.

46.In our view, the constant repetition of the suggestion that the Applicant had ordered the "bombing" of the shop, or words to that effect, implied a knowledge on the Applicant's part that an explosion was likely to take place, giving rise to a virtual certainty that death or serious injury would be caused to those in or near the shop. If the Applicant had ordered the fire-bombing, such an inference might well have been drawn and a conviction for murder might well have been justified. Having said this, we observe with some dismay that neither of the experienced counsel appearing at trial attempted to correct the judge's error.

47.As it is, the destruction of the VCD shop by fire was carried out on the Applicant's orders. That much is clear from the jury's verdicts on counts 1 to 3 inclusive. In the context, this having been ordered to take place in the morning at a busy shopping precinct in Nathan Road, this was not only an unlawful act but obviously also a dangerous one which, in the event of death resulting, would plainly give rise to a manslaughter verdict provided the Applicant could be proved to have given the order.

48.As we have seen from the passages already cited in this judgment, the jury was given very little assistance as to the alternative verdict which was open to them in relation to manslaughter. Nothing else was said about the less serious alternative although the case against the Applicant bore all the hallmarks of manslaughter, albeit of the worst kind. In our view, the judge's constant repetition of phraseology which erroneously suggested that the Applicant had ordered the bombing of the shop premises, which was only one of a number of ways the Applicant's orders might have been carried out, can only have created prejudice to the Applicant.

49.Accordingly, the complaint in grounds 1 and 2 must succeed and the conviction for murder must be quashed. It is plain, however, as Mr Marash accepted, subject to his further arguments set out in grounds 3, 4 and 5, that a manslaughter verdict was inevitable once the jury was satisfied that the Applicant had given the order to burn the shop. With these considerations in mind, we can turn to the remaining grounds of appeal.

The 'lies' direction

50.Mr Marash submitted that the way in which the jury were directed in the summing up about the possible lies told by the Applicant in his witness statement and his later video-recorded interview implied that if the Applicant had not lied for innocent reasons, such lies could be regarded as evidence of his guilt. In support of this argument, Mr Marash cited R v Patrick David Wong and Anor [1993] 1 HKCLR 62 in which (at p. 66) the judge had directed the jury that:

"'If you think there is or may be some innocent explanation for his lies, then you should pay no attention to them. If you are sure that their lies were relevant to the allegations against them and were not prompted by an innocent motive of that kind, then those lies would be evidence going to proof of guilt.'" (Emphasis added)

51.At no stage did the judge in that case qualify this direction by informing the jury that lies by themselves could not in themselves amount to evidence of guilt which led the Court of Appeal, when quashing the convictions, to conclude that the jury could have been misled into thinking that they could be so regarded.

52.Returning to the present case, the position was quite different. The judge expressly directed the jury that a lie could not amount in itself to guilt and he provided several examples to illustrate that there were many innocent reasons for lies to be told. However, he went on to say:

"If you find the accused has lied and that the lie may have been for one of the reasons that I have suggested, then you pay no attention to that lie; you simply disregard that part of what he has said and concentrate on the evidence that the prosecution has satisfied you is true and make your decision upon that basis." (Appeal bundle p. 12)

53.This direction, stopping where it did, failed to give any indication about the approach the jury should take in the event that they were satisfied that the lie had been stated for other than innocent reasons. It was this omission which enabled Mr Marash to submit that the judge was thereby implying that the lies could amount to evidence of guilt.

54.Plainly, the trial judge was aware of the decision in HKSAR v Mo Shiu-shing [1999] 2 HKLRD 155 in which (at p. 169) the modern directions to be given to the jury are set out. These are also reproduced in the "Specimen Directions" provided to all members of the Judiciary. The judge faithfully followed these directions until he came to what should have been the jury's approach to lies which they were satisfied had not been spoken for 'innocent' reasons. The direction should have been:

"It is only if you are sure that he did not lie for an 'innocent' reason that his lies can be regarded by you as evidence which supports the prosecution's case."

55.The question we have had to ask ourselves is whether in the present circumstances this omission might have led the jury to the conclusion which was suggested by Mr Marash. We are satisfied that this was not a material omission. Firstly, the judge had made it plain that lies could not in themselves amount to guilt. This must have been obvious to the jury in any event bearing in mind that the alleged lies principally related to the Applicant's denial about having been to Lau's address at Shek Chun House before he was confronted by the photographs which showed him in the lift coming from and going to the sixth floor with Lau amongst others.

56.Secondly, the photographic evidence showing the Applicant in the company of some of the other alleged culprits was powerful evidence in support of Fan's evidence that the Applicant was an integral member of the gang responsible for this revenge attack. Yet, when the judge later came to address this point in his summing up, he appeared to play down its importance. He gave the following direction:

"There is evidence that the accused knew all these people involved. There is evidence that he was in the same lift as Him Chai; Him Chai who, at that point, had a burned leg; the going up in the lift together. There is evidence that he was in the vicinity of Lau's home on the afternoon after the bombing when all the rest were up there. But that is not evidence that shows that he is involved. That is evidence that helps you paint a full picture but it does not - it is not what could be called a smoking gun, is it? It is not evidence which could be considered to be proof that he has committed any of these offences. It is circumstantial evidence that might help you with other evidence but it is not proof in itself." (Appeal bundle p. 11)

57.This passage, in our view, made it quite plain to the jury that the evidence about the Applicant's presence in the lift, including necessarily his earlier denials of having ever gone to that address, could not amount to proof of his guilt.

58.Ground 3, therefore, fails.

Absence of "no guilt by association" direction

59.The fourth ground of appeal principally amounted to a complaint that the judge had failed to direct the jury that there is no such thing as "guilt by association". Mr Marash conceded that this did not in itself amount to a ground which could upset the conviction, whether for murder or manslaughter, but he urged us to consider this factor in combination with the other grounds of appeal. As this was not a ground which afforded any real chance of success, we can say at this stage that it should not have been advanced.

60.There was no denial at trial that the Applicant knew all of those responsible for the arson attack. Mr Blanchflower, SC, for the Respondent, pointed out that, assuming the jury to have accepted as a possible construction of the Applicant's admissions, that he had consorted with the others on the night before the revenge attack, this was highly probative evidence that the Applicant had associated with them not just after the attack, but also on the night before it took place. However, the judge never made this comment even though he would have been fully entitled to do so. Instead, he merely told the jury that when they considered the Applicant's statements to the police (covering 129 pages), they should look through them to decide what was the truth.

61.There was no requirement in law for the judge to provide a specific direction in the terms which Mr Marash contended should have been given. A contrary direction, implying that there could be guilt by association would, of course, have been a misdirection but the judge said nothing of that kind. Indeed, in one of the passages from the summing up which we have already cited, the judge, after saying that there was evidence that the Applicant "knew all these people involved", he had gone on to say expressly that despite his association with them, this was "not evidence that shows he is involved."

62.There was no substance to ground 4.

Whether accomplice's evidence unsafe and unsatisfactory

63.In the last ground, which we can take very shortly, it was submitted that a conviction, whether for murder or manslaughter, could not be supported because of the unsatisfactory nature of the evidence provided by Fan.

64.It is perfectly true that Fan was in many ways a witness who had to be treated with the greatest caution. It is unnecessary in this judgment to recite the many ways in which his evidence can be criticized. Fan was subjected at trial to cross-examination of the most rigorous kind which exposed every imperfection in his character, every possible motive he might have had for telling lies and every inconsistency between his evidence in court and his previous statements to police. The jury had been given every opportunity to consider what he had said, having had the considerable advantage of seeing and hearing his evidence. At the end of the trial, when the judge summed up, the jury were again alerted to some of the more significant discrepancies in his evidence. They were warned on several occasions to approach his testimony with great care. This was said, as the judge at one stage pointed out, to reinforce what counsel had already stated in their speeches. In what was essentially a straightforward case on its facts, the judge properly and fairly focused the jury's attention on the single most important issue in the trial, namely Fan's credibility.

65.This ground fails.

Conclusion on conviction

66.Having regard to the views we have expressed on the first (and second) grounds of appeal, we give leave to appeal and treating the hearing as the appeal, we allow the appeal and quash the conviction for murder and the mandatory life sentence which was imposed on this count. However, under the terms of section 83A of the Criminal Procedure Ordinance, Cap. 221, we shall, as we earlier indicated, substitute this with a conviction for manslaughter which inevitably flows from the jury's findings.

Sentence for manslaughter

67.We indicated at the appeal hearing that if, having taken time to consider our decision, we were minded to substitute the murder in count 3 with a conviction for manslaughter, we would then have to decide the sentence which should be imposed. With this in mind, we gave Mr Marash the opportunity to address us in mitigation, having first given him a short adjournment in which to take instructions.

68.Mr Marash forcefully pointed out that there was no evidence that the Appellant had ever intended that anyone should be hurt whilst, at the same time, realistically accepting that the Appellant had ordered a "very dangerous act" to be carried out by his much younger accomplices. He submitted that this was not a "worst case scenario" such as it might have been if the Appellant had ordered a bomb to be detonated in the building.

69.Leaving aside the fact that the hypothetical situation posed by Mr Marash would almost certainly have resulted in a conviction for murder, we have no doubt at all that the triad-related revenge attack which the Appellant had ordered fell into a bracket which can properly be described as one of the worst cases of manslaughter to come before the courts. That is not to say that there might not be other cases which might be worse, but this was certainly amongst the worst. Such conduct by callous "bosses" in triad organizations has to be deterred. The order to burn a shop at a time and in a place where people would almost certainly be in close proximity, was nearly bound to lead to injury. In the event, the ghastly burns suffered by the deceased, which caused him to die after what must have been four agonizing weeks, covered 85% of his body. He had been a wholly innocent bystander who, like many others in their lunch hour, was harmlessly shopping. The terrible injuries to the victim in count 1 left her with burns to 30% of her body and she has been left with permanent disability and disfigurement.

70.As we said when dealing with Fan's appeal on 12 June 2001 in CACC 62/2000, the starting point adopted by Nguyen J of twenty-four years' imprisonment was "entirely appropriate". In the application of Cheung and Cheng for leave to appeal on 18 July 2000 (also CACC 62/2000) we expressed the view that:

'While it is certainly true that these were long sentences for such young offenders, the fact remains that it is difficult to imagine a more callous or irresponsible criminal enterprise than this, short of murder itself. Nothing which this court proposes to say should give the slightest encouragement to others who embark on revenge attacks of this kind in a crowded community such as Hong Kong's, to think that the proper sentence to be imposed should be anything short of the top end of the scale."

71.We can only repeat that the starting point of 24 years' imprisonment, adopted in those cases, was wholly appropriate. The Appellant in the present case has shown none of the remorse exhibited by his accomplices who pleaded guilty to manslaughter at the outset of their trial.

72.We bear in mind that the Appellant did not know by what means his accomplices would carry out his orders. On the other hand, he did not care how they did it, so long as the deed was done. He was living the life of a triad leader and he must now face the consequences. Without his order, this tragedy would never have occurred.

73.We consider the Appellant's culpability to have been greater than that of his accomplices. In all the circumstances, we shall impose on count 3 a sentence of twenty-six years' imprisonment to run concurrently with the sentences he is serving on counts 1 and 2.

Representation:

Mr M.C. Blanchflower, SC, SADPP and Ms Ada Chan, GC, of the Department of Justice, for the Respondent.

Mr Daniel Marash, SC, instructed by Messrs C.Y. Lam & Co., for the Applicant/Appellant.