HKSAR v. Lai Kan Yau
Read the full judgment text of CACC 177/2021 on BabelCite. This Court of Appeal judgment was delivered on 31 July 2025.
1. The appellant was indicted for the murder of his father and the theft of $203,000 from his father’s bank account. He pleaded guilty to theft and not guilty to murder. On 29 July 2021, following a trial before Joseph Yau J (the Judge) and a jury he was convicted of murder. He was sentenced to life imprisonment for murder and 2 years and 3 months’ imprisonment for theft to run concurrently with the sentence for the murder.
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CACC 177/2021 [2025] HKCA 719 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 177 OF 2021 (ON APPEAL FROM HCCC NO 52 OF 2020) _______________
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________________ J U D G M E N T ________________
Hon Zervos JA (giving the Judgment of the Court): 1.The appellant was indicted for the murder of his father and the theft of $203,000 from his father’s bank account. He pleaded guilty to theft and not guilty to murder. On 29 July 2021, following a trial before Joseph Yau J (the Judge) and a jury he was convicted of murder. He was sentenced to life imprisonment for murder and 2 years and 3 months’ imprisonment for theft to run concurrently with the sentence for the murder. 2.In pleading guilty to the theft count, the appellant agreed to the Summary of Facts in which he admitted that after killing his father, he took his father’s ATM card from his wallet. He knew that his father had written down the ATM card’s PIN on a small piece of paper, which his father kept inside his wallet. He found the piece of paper and used the ATM card and the password to transfer and withdraw funds out of his father’s account to pay a loanshark.[1] 3.On 8 December 2022, a Single Judge granted the appellant leave to appeal against his murder conviction[2]. Mr Simon N M Young and Mr Simon So, who represent the appellant, filed Amended Perfected Grounds of Appeal on 3 November 2022, setting out five grounds of appeal. The first three grounds alleged that the Judge failed to direct the jury on post-offence conduct properly. The fourth ground alleged that the Judge failed to direct on inferential reasoning in relation to the defence of provocation. The fifth and final ground averred that the appellant’s conviction was unsafe and unsatisfactory because fresh evidence demonstrated that there was no evidential foundation for prosecuting counsel’s suggestion that the appellant lied about his father calling the appellant back for “yum cha” on 3 December 2018. The fifth ground additionally alleged that the prosecution had failed to disclose the father’s other telephone number, but as noted in the leave judgment, the appellant would have been aware of this telephone number, and the Admitted Facts did not mention the record of this call from the father. The appellant’s solicitor in this appeal filed an affirmation dated 20 October 2022 in support of an application to adduce fresh evidence, to which he attached correspondence between the appellant’s counsel and the Department of Justice regarding evidence of a telephone call from the deceased to the appellant, which had not been mentioned in the Admitted Facts (the missing call). The Single Judge granted the appellant leave to appeal on the first three grounds, which were consolidated into one ground at the leave hearing, and the fifth ground. He refused leave to appeal on the fourth ground. 4.On 22 March 2023, the appellant filed a 2nd Amended Perfected Grounds of Appeal, which listed three grounds of appeal. Ground 1 alleged that the Judge failed to direct the jury properly on the post-offence conduct. Ground 2 averred that the conviction was unsafe and unsatisfactory in light of the fresh evidence. Ground 3, a new ground without leave having been granted, alleged that the appellant’s legal representatives at trial were flagrantly incompetent. This new ground concerned the legal representatives’ handling of the missing call. Supporting and responding to the allegations of flagrant incompetence, the parties involved had filed affirmations. 5.At the hearing of the appeal on 8 December 2023, pursuant to the new ground alleging flagrant incompetence by the appellant’s legal representatives, the Court directed live evidence to be heard in respect of this ground and addressed in light of the relevant authorities on this area of law. The Court adjourned the appeal, setting aside two days for the anticipated hearing. 6.Upon concluding the hearing, we reserved judgment for subsequent delivery, which we now give. 7.On 6 December 2018, the body of the deceased (the appellant’s father) was found in a red-white-blue bag floating in Waterfall Bay, Hong Kong Island. Following identification, a police officer telephoned the appellant, who was in Taiwan. The appellant admitted to the police officer that he had killed his father. He returned to Hong Kong later that night. Upon his arrest at the airport, he was cautioned, and in response, he repeated his admission that he had killed his father. He said:
8.The parties agreed that the appellant inflicted fatal stab wounds to the deceased’s neck. There was no challenge to the medical evidence, specifically regarding the toxicology report showing that in the deceased’s body there was a significant amount of alcohol as well as Zolpidem (a sleeping pill) and Meprobamate (a sedative). According to the pathologist, the presence of alcohol and medication would have rendered the deceased unconscious, semi-conscious, or severely impaired when he was attacked, resulting in an inability to defend himself. This conclusion was consistent with the absence of defensive wounds on the deceased. The expert opinions of the pathologist and toxicologist directly impacted on the assessment of whether the deceased could have been fully conscious or aggressive at the time of the killing.[4] 9.The appellant characterised his father using derogatory terms or descriptions, such as “shithead”, a violent person and an irresponsible father. Their relationship had been estranged and they had not met for some years before the incident.[5] The appellant was heavily in debt. He borrowed money from Wong Tsz-san (the loanshark) and a payment of $200,000 plus $10,000 monthly interest for 14 months was due on 4 December 2018. The loanshark had made threats against the appellant and his family for payment of the monies owed.[6] 10.We will now examine the chronology of events preceding and including the killing of the deceased, and the appellant’s subsequent conduct and interviews with the police. 11.At about 12:17 am on 3 December 2018, the appellant messaged his friend, Elaine So Yee-lam (PW7), who worked at HSBC, via WhatsApp. He asked her what the daily ATM transfer limit was between HSBC accounts not in his name.[7] PW7 was overseas at the time. At 8:28 am that morning, she told him that it was $50,000 but could be increased to $80,000 by applying one day in advance through the ATM. At 8:51 am, the appellant explained to PW7 that it was another person transferring money to him. He asked PW7 how it could be done, and she explained the procedure to him.[8] 12.At about 12:58 pm on 3 December 2018, the appellant asked a friend, Melody Wong Man-yin (PW8), how to authenticate a Rolex watch. PW8 told the appellant to sell the watch to verify its authenticity.[9] He later told her that he pawned the watch for $8,000.[10] 13.At 4:45 pm on 3 December 2018, the appellant telephoned his father. The call lasted 236 seconds.[11] 14.On the morning of 4 December 2018, the appellant met the deceased for breakfast at Café de Coral in Tuen Mun. Afterwards, the two men went to the deceased’s flat in Po Tin Estate, Tuen Mun (the Po Tin Flat). Shortly before noon, the appellant left the Po Tin Flat, wearing clothes and shoes different from those he had worn when he had entered. In the afternoon between 1:00 pm and 4:40 pm, the appellant returned to the Po Tin Flat on three occasions, carrying various things, including a plastic bag and box, finally leaving empty handed. At about 2:10 pm, a GoGoVan driver accepted a booking from Tuen Mun to Pok Fu Lam, which was postponed to the following day. At 4:50 pm, the appellant transferred $50,000 from the deceased’s HSBC account at an ATM to the loanshark. He also withdrew $20,000 cash, which was subsequently deposited into the loanshark’s account. At about 8:00 pm, the appellant went to his sister’s residence in Wah Fu Estate (the Wah Fu Flat) and left about 30 minutes later.[12] 15.On the morning of 5 December 2018, the appellant made multiple visits to the Po Tin Flat. At 10:55 am, the GoGoVan arrived at the Po Tin Flat, and the driver met the appellant, who emerged carrying a heavy plastic box, which was then placed in the van and taken to the Wah Fu Flat. In the afternoon, the appellant pawned a Rolex watch for $8,000 and used the deceased’s ATM card to transfer $50,000 to the loanshark and to make a withdrawal of $20,000 in cash, which was subsequently deposited into the loanshark’s account. At about 5:30 pm, the appellant went to the Wah Fu Flat with a suitcase. On that evening, he made two round trips between the Wah Fu Flat and Waterfall Bay along Waterfall Bay Road.[13] 16.In the early hours of 6 December 2018, the appellant left the Wah Fu Flat with a suitcase and walked along Waterfall Bay Road towards Waterfall Bay. At 3:45 am, he returned to his residence in Sai Ying Pun. At about 7:45 am, the body of the deceased was found in a bag floating offshore at Waterfall Bay. At 10:24 am, the appellant again accessed the deceased’s account with the ATM card to transfer $33,000 and $10,000 to the loanshark and make a withdrawal of $20,000 in cash, which was later deposited into the loanshark’s account. At 12:43 pm, the appellant left Hong Kong on a flight to Taiwan. When the police contacted the appellant by telephone, he said he would return to Hong Kong, which he did the next day. 17.On 7 December 2018, Dr Lai Sai Chak, a forensic pathologist, conducted a post-mortem examination on the body of the deceased.[14] He found five open wounds on the body:
18.Dr Lai was of the opinion that wound (B) was produced by a combination of six stabs, “three each of the upper and lower parts”, and was the cause of death. He agreed the attack on the deceased was from behind, but he was unable to say whether the blade had been withdrawn completely and inserted again.[15] 19.The appellant voluntarily participated in three video recorded interviews (referred to as a VRI) and a video recorded reconstruction of the case.[16] During these sessions, he provided detailed accounts regarding the killing of his father and the disposal of his body. 20.In the 1st VRI, the appellant said he contemplated suicide to prevent a loanshark from harassing his wife. He arranged to meet his father for yum cha on the morning of 4 December 2018 in Tuen Mun.[17] When they were back in the Po Tin Flat, the appellant knelt on the bed while massaging his father’s lower back, who was facing away from him. During the massage, the appellant requested if his father could lend him $200,000 as he had a child and no work. His father began reprimanding him. The appellant responded, “Leave it”, but his father wanted him to leave the flat, hurling insults at him and his family. They quarrelled and pushed each other. As the appellant was leaving the Po Tin Flat, his father hit him. The appellant returned to the bed, emotionally overwhelmed, grabbed the knife from his bag on the bed and stabbed his father multiple times, who then fell onto the bed and became unresponsive. The appellant felt dizzy and scared. He said he had no idea what had happened. He went out to buy towels, black plastic bags and cleaning agents to clean the flat. He wrapped the deceased’s body in a red-white-blue bag. He then put the body into a plastic box. He threw away the blood-stained items. He took his father’s wallet, which contained an ATM card and the PIN number for the bank account. He used the ATM card to transfer money to the loanshark. On 5 December 2018, he went to the Po Tin Flat to carry out more cleaning. He purchased another box to contain the box with the body and painted both boxes black to conceal the bloodstains from being seen. He called a GoGoVan to transport the boxes to the Wah Fu Flat. He proceeded to dispose of the body at Waterfall Bay during the small hours of the following day. The appellant returned to Waterfall Bay at 8:00 am on 6 December 2018 and saw a police cordon. He knew he was in trouble and went immediately to Causeway Bay to transfer more money to the loanshark with his father’s ATM card.[18] 21.During the 2nd VRI, the appellant verified that the various items seized were connected to the killing of his father, including the red-white-blue bag and blood-stained clothing, and additionally identified himself and the deceased on CCTV footage.[19] 22.During a subsequent reconstruction video, the appellant told the police that he was massaging his father’s back when he requested a loan. His father started cursing him, claiming he had neither wife nor son. The two men quarrelled. His father scratched and grabbed hold of the appellant’s hand and kept cursing him. His father reached for the table to hit him, but failed in this attempt, and various items on the table fell to the floor. The appellant was angry and frightened, so he took out the knife from his bag and stabbed his father. After the initial stab wound, the appellant felt dizzy and did not know what he was doing. He stabbed his father two or three times. His father fell and became unresponsive. The appellant did not know what to do. He went to the shopping centre to buy cleaning agents, towels, plastic bags, a plastic box and red-white-blue bags in which to place the body. He attempted to dismember the body but was unable to do so. Eventually, he placed the body in the red-white-blue bag, which he then placed inside a box. He retrieved his father’s wallet. He changed out of his blood-stained clothes and threw away the things he had touched in the Po Tin Flat. He called a van to transport the box containing the body to the Wah Fu Flat. He made sure nobody was around when he discarded the body into Waterfall Bay.[20] 23.During the 3rd VRI, the appellant recounted his parents’ divorce when he was 12 or 13 years old. His father moved to Tuen Mun. Frequently, his father called him when drunk and swore at him. Their relationship was strained, and his father would beat him, his sister and mother when drunk. After his son was born, the appellant stopped holding grudges against his father and wanted to take care of him. His $200,000 debt to a loanshark was due for payment on 4 December 2018. He planned to stab himself, although he remained undecided as to the method of killing himself. Before committing suicide, he wished to bid farewell to his family and his wife’s family. He drafted suicide letters and asked his friend at the insurance company where he worked to take care of his clients. He brought along the knife when he went to see his father. While massaging his father, he asked for a loan. His father continuously berated him, saying he was a liar, and that he had no wife or son, verbally insulting them. His father grabbed his arm, causing him pain. He pulled free on the second attempt, while his father kept cursing him. The appellant unzipped his bag and took out the knife. He held his father’s shoulder and thrusted the knife into him. At that time, his father had turned his back around as he was trying to get a table or something with which to hit the appellant. After the first stab, the appellant felt dizzy. He pulled out the knife and stabbed his father twice. His father yelled, tried to turn around, but could not because the appellant was holding his shoulder. The appellant stabbed his father again, two or three more times. His father yelled again, took a few steps and collapsed. The appellant stated that the idea of asking his father for a loan had only occurred to him while he was at the Po Tin Flat. He explained that he had asked PW7 how to increase the daily transfer limit from a HSBC account because he had wanted to ask someone to lend him money on 4 December 2018.[21] 24.The prosecution contended that the jury should accept the appellant’s admissions regarding the killing in the VRIs and the reconstruction video while rejecting his claim that he had intended to commit suicide.[22] 25.The appellant gave evidence. In his testimony, he recounted that he had had an unhappy childhood because his father was frequently intoxicated and violent toward both him and his mother. After his parents divorced, he resided with his mother and younger sister in the Wah Fu Flat. He moved to Sai Ying Pun while his sister continued to live in the Wah Fu Flat. He married his girlfriend in 2018 after she got pregnant. He operated a side business of arranging for Mainland women to come to Hong Kong for vaccinations and introducing Hong Kong companies to assist Mainland companies in obtaining a public listing. He also worked as a clerk with a fishing company. His financial obligations escalated following his son’s birth, and he had to borrow money from finance companies, his cousin and PW7. In mid-2018, he borrowed $200,000 from a loanshark. The loanshark threatened he would harass his wife and son if he was unable to make repayment of the loan. The middleman of the appellant’s vaccination business failed to pay the money owed to him, resulting in a cash flow problem. It had never occurred to him to borrow from his father as he did not think his father had such money. 26.On 15 November 2018, the appellant decided to commit suicide and disclosed these plans to both his business partner and PW8. He researched suicide methods online, ultimately selecting to stab himself and jump into the sea. He wrote a suicide note on 15 November 2018 and recorded two voice messages on his old mobile telephone for his wife. 27.On 3 December 2018, at around 5:00 pm, the appellant telephoned his father ostensibly to tell him to take care of himself as he would not be in town. His father returned the call and made arrangements for them to go for yum cha the next morning.[23] 28.On 4 December 2018, the appellant arrived at the meeting with a backpack containing some documents and a 12 cm bladed beef knife. He intended to use the knife to commit suicide after the meeting. The appellant and his father had breakfast at Café de Coral. His father told him that his waist and back hurt. The appellant went to look for some medicine for his father, but could not find any. The two then went to the Po Tin Flat so that the appellant could give his father a massage. 29.In the Po Tin Flat, they engaged in conversation while consuming alcohol. The appellant believed his father drank some strong tonic wine, while the appellant consumed some beer. After two glasses of wine, his father started to talk louder. The appellant knelt on the bed while his father sat on the bedside during the massage. The appellant explained the events leading up to him killing his father:[24]
30.The appellant testified to making multiple trips to the Po Tin Flat to clean it up. He further admitted to relocating his father’s body to the Wah Fu Flat. He contacted a GoGoVan driver, but could only transport the body on the following day because he did not have the key to the Wah Fu Flat. He verified his whereabouts on 4 December 2018, travelling between the Po Tin Flat, Causeway Bay, the Wah Fu Flat and his residence in Sai Ying Pun. 31.The appellant admitted transferring and withdrawing funds from his father’s bank account at an ATM in Tuen Mun. He inquired of PW7 regarding increasing the daily limit of an ATM transfer for an HSBC account not in his name because he had contemplated requesting his cousin or his wife for a loan. During cross-examination, the appellant acknowledged that, after he arranged to meet his father for yum cha, he asked PW7 about increasing the daily transfer limit. 32.The appellant admitted to encasing his father’s body in a box, arranging for it to be transported from the Po Tin Flat to the Wah Fu Flat and disposing of it in Waterfall Bay. Following his flight to Taiwan, he contacted the Immigration Department of Hong Kong, reporting his involvement in the case on the news and wanted to return to Hong Kong to surrender. That was before the police contacted him by telephone in the evening of 6 December 2018. He explained that, after his arrest and when he was interviewed under caution, he had been deprived of sleep and water, and was feeling depressed. He tried to be truthful with the police, but he might have made mistakes due to his mental state. The appellant said he did not know why he killed his father and was willing to plead guilty to manslaughter. 33.During cross-examination, the appellant testified that, after killing his father, he went to a hardware shop in Wah Fu Market to buy a pair of scissors, which he intended to use to commit suicide after he had discarded his father’s body in the sea. However, when he arrived at Waterfall Bay with the suitcase, he had forgotten to bring the scissors. He attempted to drown himself but was washed ashore. He agreed that he said in the reconstruction that he did not have to commit suicide because he had killed his father, and he had wanted to repay the loanshark.[25] He maintained that his father was conscious and aggressive when he requested a loan despite the findings of the pathologist and toxicologist. He disagreed that the actions he took after killing his father (not calling the ambulance or the police, cleaning the Po Tin Flat, transferring money to the loanshark, and buying things in which to store the body, making arrangements to move the body, buying new clothes) showed that he was not frightened or confused. The appellant said he knew nothing about his father having withdrawn his MPF fund when they agreed to meet on 3 December 2018.[26] The appellant was confronted with the admitted fact that, after a telephone call from him to his father on 3 December 2018, which lasted 236 seconds, his father did not call him back as he had alleged. He explained that his father had two telephone numbers and on 3 December 2018, his father used the other number (other than the one whose call record was produced under the Admitted Facts) to call him.[27] On re-examination, the appellant confirmed that his father called him with two different numbers, but the appellant did not know why.[28] 34.A pivotal piece of evidence was the knife that the appellant had brought with him when he saw his estranged father. As already noted, he claimed he had it with him because he was going to use it to commit suicide after seeing his father. Notwithstanding his intended suicide, he had made arrangements to do other things afterwards. He gave the following explanation about his decision to commit suicide by using a knife:[29]
35.Neither the alleged suicide note, nor the old telephone was found or produced. This marked only the appellant’s second visit to his father’s residence. The first and previous time was during his adolescence, approximately 10 to 11 years previously.[30] The appellant claimed that he was frightened when he stabbed his father and did not think of getting help, such as calling the police or an ambulance.[31] His conduct after the killing was used to challenge the assertion that he was frightened and confused:[32]
36.The prosecution directly challenged the appellant’s credibility, alleging fabrication and that he had not told the truth. Prosecuting counsel put to the appellant in cross-examination that he intentionally killed his father or caused him serious bodily harm after his father refused to give him money to pay the loanshark. The appellant disagreed but admitted that he took every step he could to conceal the body and the killing, and he left Hong Kong to avoid detection. This part of the cross-examination of the appellant was as follows:[33]
37.Notwithstanding the appellant’s denials during cross-examination that he did not intend to kill his father or cause him really serious injury, he conceded during examination-in-chief that he was guilty of manslaughter:[34]
38.Defence counsel’s closing address advanced that the appellant was guilty of manslaughter by provocation, and this was made abundantly clear to the jury:[35]
39.The key issue before the jury was whether the appellant, as alleged by the prosecution, murdered his father to take his money to repay the loanshark[36] or, whether, as advanced by the defence, the appellant killed his father under provocation after the issue of money was raised in the Po Tin Flat which led to an altercation between them[37]. 40.In his appeal against his murder conviction, the appellant advances three substantive grounds of appeal.[38] Ground 1 is a composite of complaints relating to the appellant’s post-offence conduct. Grounds 2 and 3 concern the missing call by the deceased, where it is alleged that the matter was not properly handled by the appellant’s legal team at trial and resulted in unfairness to him. Ground 1: the post-offence conduct 41.It is argued that the Judge erred by omitting to tell the jury that the post-offence conduct (namely, not calling an ambulance or the police, cleaning up the scene, attempting to dismember the deceased’s body, disposal of items related to the killing, and disposal of the deceased’s body) had no probative value as to whether the appellant had the requisite intent to murder or killed the deceased as a result of a sudden loss of control (“no probative value” direction). Alternatively, if the evidence of the appellant’s post-offence conduct had any probative value, the Judge should have directed the jury that any inference of guilt could only be drawn if they were sure that the post-offence conduct was done to conceal the fact that this was an unprovoked and intentional killing, rather than merely to conceal the appellant’s connection with the death (“proper use caution”). 42.The Judge instructed the jury that the prosecution was submitting that they could infer from the post-killing conduct that the appellant had the requisite murderous intent. However, at the same time, he included the appellant’s explanation for his conduct. This instruction presented a factually accurate account of the conduct that was fair and balanced, setting out the submissions of both sides. Moreover, he reminded the jury to consider that the conduct may be a result of someone who realized he had done something “very wrong”. He said:[39]
43.The Judge next explained to the jury that the prosecution were also submitting that the post-killing conduct demonstrated that there was no loss of self-control due to provocation. He also set out the defence case that after the killing, the appellant had regained his self-control. He said:[40]
44.After the Judge gave the above directions, on the following day, prosecuting counsel clarified with him that he relied on the appellant’s “conscious acts” of retrieving the knife from the bag and fending off the stool, which did not represent a sudden and temporary loss of self-control, and the appellant’s post-killing conduct that showed he was a person with a “calm nature” [41] to “meet the defence of provocation … in broad terms”.[42] The Judge agreed to make this clarification with the jury, which he did in the following terms:[43]
The submissions on post-offence conduct 45.Mr Young cited R v Arcangioli[44], a case involving flight evidence, in which the Canadian Supreme Court held that where an accused’s post-offence conduct may be equally explained by reference to consciousness of guilt of two or more offences and where the accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence. The Canadian Supreme Court in the subsequent case of R v White and Côté [45]explained that such a direction is warranted where the accused has admitted to committing the actus reus of a criminal act but has denied a specific level of culpability for that act.[46] Mr Young noted that the Judge gave the jury a “no probative value” direction in relation to the appellant’s flight to Taiwan[47] and submitted that the Judge should have done the same with other post-offence conduct. 46.In the alternative, Mr Young contended that the Judge should have directed the jury in similar terms to Specimen Directions in Jury Trials, 2020 Revision, Chapter 112: Defendant’s Lies, i.e. the jury could not use the accused’s lie to support the prosecution case of murder unless they were sure that such lies were told to conceal the fact that he had murdered the deceased, rather than merely to conceal his connection with the death.[48] He also referred to the practices of various common law jurisdictions such as England and Wales, Australia and Canada to support his submissions. He relied on HKSAR v Zhou Limei[49] to demonstrate the need for a limited direction regarding post-offence conduct similar to the flight direction. The gravamen of his submission was that the post-offence conduct was equally consistent with the appellant’s admitted guilt for manslaughter and was therefore neutral in proving murder. 47.Mr Young maintained that the Judge should have given an identical limiting instruction regarding the other forms of post-offence conduct as he did in relation to the appellant’s flight to Taiwan. He noted that the Judge gave a “no probative value” direction in respect of this evidence. For proper context, we reproduce the relevant passage in its entirety:[50]
48.Mr Young contended that whether it was the cleaning up of the flat or the disposal of the father’s body, the actions were equally consistent with the appellant’s liability for murder or manslaughter, echoing the Judge’s observation that “either possibility exists”. He maintained that a jury would not be able to be sure whether to infer the appellant’s guilt for murder or manslaughter from his post-offence conduct. 49.We consider that the Judge’s direction on the appellant’s flight evidence was to his benefit, ensuring that the jury did not use it on its own as evidence of guilt. He told the jury that the flight evidence was not in itself evidence of guilt and there may be innocent reasons for his flight to Taiwan and the judge instructed them to ignore the appellant’s departure after killing his father because they would not be able to be sure for what reason he left Hong Kong. This limitation was not warranted for the other post-offence conduct. The prosecution did not rely on the post-offence conduct on its own. It was part of the circumstantial evidence, which would have been understood by the jury. 50.Mr Raymond Cheng, with Mr Justin Ma, for the respondent, set out the principles regarding post-offence conduct from the relevant cases of other common law jurisdictions.[51] He highlighted Canadian and Australian jurisprudence holding that even if post-offence conduct is explicable by alternative explanation or equally consistent with two or more inferences, this does not preclude submitting such evidence for the jury’s consideration as something capable of supporting the inference sought (e.g. murder as opposed to manslaughter) and in that case a “proper use caution” as opposed to “no probative value” direction may suffice. Hence, the appellant’s reliance on Arcangioli for the contrary proposition should be qualified. He referred to HKSAR v Khan Asif Ali [52], where it was held that whether a “proper use caution” should be given depends on how the jury were invited to use the evidence of post-offence conduct and whether there was a risk that the jury would use the evidence to conclude that the accused had demonstrated a consciousness of guilt. If not, it is just another piece of circumstantial evidence, and no special direction is called for. 51.Mr Cheng observed that at the close of the evidence, the defence position was unclear as to whether the appellant was pleading guilty to manslaughter by an unlawful and dangerous act without murderous intent or to manslaughter by provocation with murderous intent. The alternative of self-defence was eliminated by the defence, which invited the jury to convict the appellant of manslaughter in its closing submission. The use of the appellant’s post-offence conduct was relevant to the alternative verdicts left open to the jury. 52.Mr Cheng contended that under the four levels of inferences set out in Arcangioli, the prosecution in the present case restricted reliance on post-offence conduct to drawing inferences unrelated to the appellant’s “consciousness of guilt” or “conclusion of guilt”, i.e. (a) to rebut the appellant killing the deceased accidentally or unintentionally without murderous intent; (b) to rebut the appellant killing the deceased as a result of a sudden loss of self-control; and (c) to attack the appellant’s credibility in claiming he was under extreme mental pressure therefore frightened and confused at the time of killing and that he was respectful of the deceased. In other words, Mr Cheng maintained that the jury had only been asked to consider the post-killing conduct as circumstantial evidence together with all other evidence as “strands in a cable” where a “no probative value direction” was not required. There was also no need to give the jury a “proper use caution” because they had been given the standard direction on drawing inferences and that they should consider all of the appellant’s innocent explanation for his post-killing conduct, which served to warn them against leaping to the conclusion of guilt. 53.According to Mr Cheng, the Judge properly instructed the jury on how to treat the post-killing conduct. He told the jury that the prosecution relied on only two aspects of the appellant’s post-killing conduct, namely, not seeking help and cleaning the Po Tin Flat, which were inconsistent with someone who had killed his father accidentally without murderous intent. He also reminded them to consider the appellant’s explanation that he did not seek help because he was afraid and out of a realisation that he had done something very wrong, not that he had set out to kill with murderous intent. He emphasised that it was the appellant’s state of mind before the killing that mattered rather than what he did afterwards. Discussion on post-offence conduct 54.Post-offence conduct evidence is no different from any other kind of circumstantial evidence, which a jury is entitled to consider together with all other evidence. It will be relevant to consider for what issue and purpose the post-offence conduct evidence is tendered, particularly if it is admitted and used as evidence of “consciousness of guilt”. In such a situation, a jury would be given a “proper use caution” to take into account alternative explanations for an accused’s behaviour. On the other hand, a “no probative value direction” may be required if the post-offence conduct evidence is found to be relevant only to one, but not another live issue in the trial. In such a situation, the jury would be told to consider the evidence for the specific purpose for which it has been admitted and used. If the post-offence conduct evidence is not used as evidence of “consciousness of guilt” of a particular offence, but only as evidence of a corroborative or supportive nature unconnected to the accused’s guilty mind as “a strand in the cable”, then a “no probative value direction” or “proper use caution” may not be required: R v Ibrahim [53]. 55.The Court of Final Appeal held that it is normally unnecessary to give the jury any special direction on how they are to approach circumstantial evidence. This was reinforced by Bokhary NPJ, with whom the other judges agreed, in Nguyen Anh Nga v HKSAR [54]:
56.The decision to issue a special direction to the jury falls within the trial judge’s discretion, and appellate courts afford substantial deference to such discretionary rulings: Tang Kwok Wah v HKSAR [55]. 57.Macrae VP in Khan Asif Ali [56] explained that in deciding whether a special direction was necessary to avoid a substantial miscarriage of justice in respect of post-offence conduct evidence depends on (1) the nature of the post-offence conduct involved; (2) the precise use which the prosecution wishes the jury to make of the evidence; (3) the significance of the evidence in relation to the issues in the trial; (4) whether the accused has given evidence in the trial; and (5) and the possibility that, without such a direction, the jury may fail to take account of the alternative explanations for the conduct and move too quickly to infer consciousness or conclusion of guilt. 58.In the present case, the relevance and admissibility of the post-offence conduct were uncontested, namely, not calling an ambulance or the police, cleaning up the scene, attempting to dismember the deceased body, disposing of items related to the killing, and disposing of the deceased’s body. The appellant testified about these matters as part of his account of what had happened. As defence counsel acknowledged during his closing address to the jury, the defence had not challenged the appellant’s actions after the killing.[57] The prosecution, on the other hand, relied on these matters to refute the appellant’s claims that he had lost his self-control; that he was under extreme pressure and hence frightened and confused at the time of the incident; and that he respected the deceased and hence his reason for paying him a visit before he was to commit suicide despite their estranged relationship. Relevantly, the prosecution never suggested that the post-offence conduct would stand on its own as evidence of consciousness of guilt. As noted by the Judge, when he clarified his directions with the jury, he emphasised that the prosecution were relying on the appellant’s conscious acts before and during the killing, particularly retrieving the knife in his backpack, to show that he was not suffering from any temporary or sudden loss of self-control.[58] 59.Critically, there was no issue that the appellant killed his father. Indeed, the appellant concluded his evidence-in-chief by admitting that he would plead guilty to manslaughter, notwithstanding his cross-examination testimony denying that he had an intention to kill his father or to cause him really serious injury.[59] The defence case was that the appellant was guilty of manslaughter by provocation and that he killed his father, having lost his self-control.[60] The defence of provocation requires proof that the accused killed the deceased, intending to kill him or to cause him really serious injury. It is a partial defence, reducing what would otherwise be murder to the lesser offence of manslaughter. An accused is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been said or done. When this defence arises, it is for the prosecution to prove to the requisite standard that there was no provocation. 60.This ground raises the issue of whether there was any danger of the jury placing inappropriate reliance on such evidence that it came within one of the established categories calling for a special warning. Given the nature and circumstances of the post-offence conduct and the use for which they were relied upon by the prosecution, we are satisfied that the usual directions on the standard of proof, inferential reasoning and the specific directions on the issue of loss of self-control given by the Judge sufficiently addressed this evidence. Moreover, the Judge when addressing the post-offence conduct countervailed the prosecution’s reliance on this evidence with the defence evidence and explanations in relation to these matters, as well as stressing that they should consider whether there was any other reason for the appellant’s conduct (i.e. the appellant realised he had done something very wrong and was frightened[61]). 61.Although the authorities have recognised that post-offence conduct may be susceptible to misuse by a jury, such evidence can form part of a circumstantial case against the accused. As rightly pointed out by Mr Cheng, the post-offence conduct was not used as evidence of his guilt for the offence of murder (manslaughter having been admitted by the appellant). It was circumstantial evidence that the prosecution relied upon to show he was calm and composed after the killing. The prosecution relied on “conscious acts” at the time of the killing to show that the appellant had not lost his self-control. The prosecution did not treat the post-offence conduct as indicative of a consciousness of guilt, which was explained to the jury by the Judge. 62.It was never suggested by the prosecution nor did the Judge instruct the jury that the post-offence conduct proved the appellant was guilty of murder. The prosecution relied on the post-offence conduct for the purpose of refuting the defence case that he lost his self-control, and therefore there was no real risk that the jury would misuse the evidence to infer a guilty mind. As already noted, the prosecution submitted this was a case of murder based on the appellant’s “conscious acts” at the time of the killing. 63.Ground 2 alleged that prosecuting counsel lacked an evidentiary basis for asserting that the appellant lied in cross-examination[62] as well as in his closing submission as to the deceased calling the appellant back on 3 December 2018 to arrange a meeting[63] (the missing call). Such questioning and comments led the Judge erroneously to give the jury a full lies direction[64], thereby reinforcing the jury’s impression that the appellant lied and was untrustworthy. 64.This ground relates directly to Ground 3, which alleged that the appellant’s legal representatives at trial were flagrantly incompetent in the handling of the issue of the missing call. Ground 3: flagrant incompetence of legal representatives 65.Ground 3 alleged flagrant incompetence on the part of the appellant’s trial solicitor and counsel in:
and their incompetence rendered the trial less than fair in that it enabled the prosecution to accuse the appellant of lying based on the Admitted Facts, which contributed to material damage to the appellant’s credibility in the eyes of the jury. 66.Before analysing these related appellate grounds, a contextual overview is warranted of the issue of the missing call from the appellant’s father. The missing call bore on whether the appellant or his father took the initiative to arrange yum cha on 4 December 2018. The appellant, during his 1st VRI, stated that he contacted his father to say goodbye before he committed suicide and asked him to go for yum cha on 4 December 2018. However, in examination-in-chief, he said that after his lengthy telephone conversation with his father on 3 December 2018, his father rang him back later in the afternoon and arranged to meet him for yum cha the next day. There was no apparent record of a return call from the father late in the afternoon of 3 December 2018, nor had such a call been included in the Admitted Facts. In cross-examination, he was challenged about the missing call, and he responded by saying that his father’s telephone had “two card numbers”. Consequently, prosecuting counsel alleged that the appellant had lied about the missing call to give the impression that it was his father who made arrangements to meet him. The Judge, in his summing-up, gave the jury a lies direction in relation to this matter. 67.Subsequent evidence confirmed the existence of a return call from the father in the afternoon of 3 December 2018. In addition to examining the circumstances as to how the issue of the missing call arose, we must decide whether the appellant’s legal representatives’ handling of the issue, and/or the confirmation of the existence of the missing call, prejudiced the fair trial of the appellant. The evidence of the missing call 68.Admitted Facts paragraph 46 contained a table of the call records relevant to the case, which so far as material read:[65]
69.The table did not include the telephone call from the deceased to the appellant at 5:43 pm on 3 December 2018 with a duration of 34 seconds. 70.During questioning regarding what he was doing on 4 December 2018 in the 1st VRI, the appellant responded:[66]
71.The appellant’s recorded response in this interview on 7 December 2018, revealed that he had asked his father on 3 December 2018 to go for yum cha because he wanted to see him before he committed suicide. There was no mention that his father had contacted him to arrange yum cha, although he stated that after checking each other’s schedules, they went to Leung King for breakfast instead. 72.The appellant’s written instructions to his legal representatives stated he contacted his father on 3 December 2018. The appellant’s instructions so far as material read:[67]
73.During examination-in-chief, when queried as to what made him decide to visit his father on the morning of 4 December 2018, the appellant said:[68]
74.Under cross-examination, prosecuting counsel confronted the appellant about the telephone call from the deceased in the afternoon of 3 December 2018, in which he was invited to have yum cha. He directly alleged the appellant fabricated that there was a call, relying on the absence of a record of this call from the deceased in the Admitted Facts and the appellant’s answer in the 1st VRI that he had asked his father to meet him for yum cha. The appellant, in response, said his father had “two card numbers”, but he was referred to the Admitted Facts, which did not disclose a call from his father as he claimed. At this point, defence counsel objected to the questioning, noting that the Admitted Facts did not record all calls and the appellant had given an explanation that his father had used another number.[69] The relevant part of cross-examination was as follows:[70]
75.The record demonstrates that from the appellant’s answers, he knew the Admitted Facts did not record the missing call, suggesting his father used another number, which had not been saved under a particular name in his mobile telephone. He disagreed that he asked his father to go for yum cha, but nevertheless confirmed as correct his statement in the 1st VRI that he, “wanted to see him for the last time, so asked him to go to yum cha on the 4th”. Arising from these answers, prosecuting counsel alleged that the appellant was “making this up” to avoid the suggestion that he made the arrangement to meet his father on 4 December. 76.During re-examination, defence counsel revisited the missing call with the appellant, who explained that the deceased had two mobile telephone numbers.[71] Both prosecuting counsel and defence counsel appeared to be unaware that the telephone number 52028882 was registered to the deceased. The relevant part of the re-examination was as follows:[72]
77.It is clear from re-examination that defence counsel was not aware, and in all likelihood had not been informed by the appellant, that his father had another number. Relevantly, the appellant had not mentioned that his father had another number in his written instructions to his legal representatives.[73] 78.Prosecuting counsel asserted in his closing address to the jury that the appellant had not been truthful about his father making a return call to have tea the next day. He said:[74]
79.The prosecution case was that the appellant was in severe financial difficulties, and he went to see his father armed with a knife to request money from him to pay off his debt, and it was not as the appellant suggested that he wanted to say goodbye to his father because he was going to commit suicide using the knife. However, the appellant in his evidence made the point that he did not initiate the meeting with his father. After he had spoken to his father on the telephone, he received a call back from his father inviting him out for yum cha. This became an issue before the jury and was reflected in the Judge’s summary of the prosecution case in his summing-up:[75]
80.Subsequently, the Judge corrected his instructions to the jury regarding the missing call, limiting its relevance to the appellant’s credibility:[76]
81.As previously established, there was a return call from the father on 52028882 in the afternoon of 3 December 2018. We observe that this did not prevent prosecuting counsel from challenging the appellant that he was not telling the truth about his father calling him back to arrange yum cha with him the next day. Prosecuting counsel put to the appellant that he was lying about his father arranging to meet him, as evidenced by his prior inconsistent statement in his 1st VRI. 82.We now examine the application for fresh evidence regarding the missing call from the father on the 52028882 number. 83.With an application for admission of fresh evidence under section 83V of the Criminal Procedure Ordinance (Cap 221), Mr Young sought to adduce materials in relation to the appellant’s mobile telephone number (63766462) [77] and its call record in relation to two mobile telephone numbers (67757376 and 52028882), which were registered to the deceased.[78] The proposed fresh evidence would show that, on 3 December 2018, there was a call from the appellant to the deceased on 67757376 lasting for 236 seconds at 4:45 pm (which was included in the Admitted Facts) and a call from the deceased with the 52028882 number to the appellant at 5:43 pm lasting for 34 seconds. 84.The Court of Appeal, at a hearing of an appeal before it, may, if it thinks it is necessary or expedient in the interests of justice, order the production of a document, exhibit or other thing, or the examination of a witness, and receive the evidence, if tendered, of the witness. The conditions that need to be satisfied in order to receive such evidence are: it is likely to be credible; it would have been admissible in the proceedings below; it is relevant to an issue which is the subject of the appeal; there is a reasonable explanation for the failure to adduce it in the proceedings below; and the court is satisfied it will afford a ground of appeal: Mahabobur Rahman v HKSAR [79]. If the Court decides to receive such fresh evidence, the next task for it is to consider what effect it has in respect of the issue which is the subject of the appeal: Mahabobur Rahman [80]. An argument that will arise later in this judgment is what if the explanation for the failure to adduce the fresh evidence is not reasonable, or if a decision was made not to adduce the fresh evidence? In our view, it will be relevant to consider the circumstances of the explanation or decision, but a prevailing consideration will be whether the failure to adduce the fresh evidence may have resulted in the accused not receiving a fair trial. 85.We reproduce the call records of the appellant’s telephone (63766462) with the deceased’s two telephone numbers (67757376 and 52028882) from 1 to 4 December 2018, which is the subject matter of the application:
86.From the above call records, between 1 to 4 December 2018, there were four instances in which the appellant received a telephone call from his father on the 52028882 number, and one instance which he telephoned his father on the 52028882 number. 87.Mr Young maintained that the conditions to admit fresh evidence were satisfied. The exhibit officer stated that the police had seized three mobile telephones (one from the appellant when he was arrested, one from the Po Tin Flat, and one from the appellant’s residence in Sai Ying Pun, which contained the two SIM cards whose numbers were registered to the deceased).[81] Subscriber data for both numbers of the two SIM cards, if obtained, would have constituted both admissible and credible evidence. As to why such evidence was not adduced at trial, Mr Young said that it was due to the incompetence of the appellant’s trial legal representatives and that the police failed to investigate the two SIM cards, whose existence had been known to them, in a timely manner. 88.Mr Young emphasised that the missing call was crucial to the defence case. Had the proposed fresh evidence been properly introduced, prosecuting counsel would have been precluded from challenging the appellant on the missing call with the Admitted Facts (which was, in fact, incomplete on the matter of the call record) and would not have severely criticised the appellant in his closing submission. Furthermore, the jury may reasonably have taken a materially different view of the appellant’s credibility. The Judge gave a full lies direction, then redirected the jury the following day[82] with the effect of reinforcing the prosecution’s attack on the appellant’s credibility. It was argued that the jury was given the impression that the appellant lied on a material point, when he in fact did not. Accordingly, the conviction was unsafe and unsatisfactory. 89.Mr Cheng objected to the fresh evidence application, arguing that no satisfactory explanation existed for the failure to adduce the proposed fresh evidence at trial, which would not further Ground 2. He contended that the fact that the 52028882 number was used to call the appellant on his mobile telephone had been disclosed to the defence in the dispositions before trial. The only other piece of evidence connecting the call from the 52028882 number was the appellant’s assertion at counter 45 of his 1st VRI, although he had not specified how the yum cha arrangement had been made. He submitted that the prosecution could not be faulted for having taken no action to investigate the 52028882 number. 90.Mr Cheng highlighted the appellant’s cross-examination testimony stating that in his father’s telephone, “there were two card numbers”.[83] While the Admitted Facts appeared incomplete, the defence had not taken steps before the close of evidence to obtain confirmatory evidence as proposed in the fresh evidence or make any application in relation to paragraph 46 of the Admitted Facts. He argued that the nature of defence counsel’s objection to the prosecution’s cross-examination, namely that the Admitted Facts did not reflect “the only phone calls that took place”, indicated that defence counsel was aware of the incompleteness of the Admitted Facts. The defence thus appeared satisfied with the appellant’s explanation given in evidence and with the view that the prosecution would not be able to disprove it. 91.Mr Cheng acknowledged that with hindsight it would have been prudent for the prosecution not to contradict the appellant’s evidence on the missing call. However, there was an evidential foundation to impeach the appellant’s credibility on the issue. The appellant in his 1st VRI stated that he initiated going for yum cha with his father[84] and he was properly cross-examined on this matter. After prosecuting counsel commented on the alleged lie in his closing address, defence counsel made no response to it in his closing address, nor did he object to the Judge giving a lies direction in this regard[85]. He accepted that the Judge’s suggestion that the call record in the Admitted Facts disclosed all the calls between the appellant and his father appeared to lend support to the prosecution’s position when the appellant’s evidence was challenged by the Admitted Facts. It was submitted that the Judge resiled from that position in his summing-up by telling the jury that it remained a matter for the jury to decide whether it was the appellant who initiated the meeting with the deceased.[86] He contended that such direction from the Judge and the lies direction would have significantly reduced any prejudice the prosecution closing submission might have caused. 92.Furthermore, Mr Cheng maintained that the fact that a telephone call was made by the deceased to the appellant on 3 December, even if admitted, would not have disclosed the content of the call, and it would still be open to the jury to consider who initiated the yum cha meeting. In any event, he said, the matter of the missing call constituted a minor part of the prosecution evidence, and substantial additional inculpatory evidence implicated the appellant. He argued that the prejudicial effect of the absence of the proposed fresh evidence at trial, if any, was minimal. He further argued that when the appellant testified that his father had two card numbers, this appeared to contradict the appellant’s claim that he did not know about his father having another telephone number when he signed the Admitted Facts and only became aware of this fact after he was convicted.[87] 93.We find the prosecution fulfilled its disclosure obligations in disclosing the deceased’s telephone and the two SIM cards, together with the call records for the material period. Notably, the police retrieved the father’s telephone and his two SIM cards from the appellant’s residence, which he took together with the father’s ATM card and PIN number, after he killed his father. The missing call did not become an issue until the appellant mentioned that he received a return call from his father arranging to meet for yum cha, during his examination-in-chief. It was only then that he disclosed that his father had another telephone number. However, given the focus on the missing call in respect of the appellant’s evidence that his father initiated meeting for yum cha and the consequential challenge to his credibility,we are satisfied that the conditions are met to admit the fresh evidence, but we leave open for further consideration the explanation or decision why it was not adduced into evidence at trial. Relevant to this matter is the way the missing call was handled by the appellant’s legal representatives, or by the appellant himself, if it was a matter within his knowledge but he chose not to do anything about it. 94.We next examine whether the appellant’s legal representatives properly handled the issue of the missing call and whether their conduct may have resulted in unfairness to the appellant. The legal principles of flagrant incompetence 95.An allegation of counsel’s incompetence constitutes a grave charge that resulted in a miscarriage of justice or an accused receiving something less than a fair trial. 96.Appeals alleging counsel’s incompetence require examination in the context of our criminal justice system, which is accusatorial and adversarial. Trial counsel, therefore, has a wide discretion in the conduct of a criminal trial, and as a general rule, the conduct of counsel binds the accused. It has been acknowledged that criminal trials involve complex strategic dynamics. There are many factors and variables in the conduct of a criminal defence, which invariably interact and influence each other, and it is, therefore, difficult to obtain a complete and accurate picture of the appropriateness of decisions made in the heat of battle at trial. It has also been acknowledged that hindsight can sometimes give a distorted or unrealistic view of past events if they are not considered in their full and proper context. Consequently, appellate courts will rarely be in as good a position as counsel to assess the relevant considerations that influenced his or her decisions in the conduct of the trial. A crucial foundation of defence conduct when contesting a criminal trial is the accused’s instructions regarding the incident under consideration. Those instructions form the focal point of the defence advanced at trial but how that defence is presented is within counsel’s wide discretion. 97.The Court of Final Appeal in Chong Ching Yuen v HKSAR[88]established the governing framework for the appeal ground of counsel incompetence through the concurring judgments of Bokhary PJ and Sir Thomas Eichelbaum NPJ, with whom the other judges agreed. Bokhary PJ agreed with the following passage of the judgment of Gleeson CJ (now Gleeson NPJ) in the New South Wales Court of Appeal in R v Birks:[89]
98.Bokhary PJ articulated the test for determining whether defence incompetence has rendered a conviction unsafe or unsatisfactory, adding that an appellate review must assess whether the proceedings met the fundamental standards of our criminal justice system. He stressed that a trial must be fair, and “if defence incompetence has, all things considered, resulted in the trial being something less than a fair trial, such incompetence constitutes a ground for quashing a conviction.”[90] He also noted that the question of a miscarriage of justice comes in by reason of the proviso in section 83(1) of the Criminal Procedure Ordinance[91]. Adopting the language of section 83(1), the proviso can be invoked if the appellate court considers no miscarriage of justice has actually occurred, although this will inevitably mean that an accused has received something less than a fair trial.[92] 99.Sir Thomas Eichelbaum NPJ in his concurring judgment, similarly endorsed Gleeson CJ’s analysis in R v Birks[93], and proceeded to explain:
100.It is not uncommon that a decision made or a course of action taken at trial reflected a forensic choice which was reasonably open to counsel. In the Australian case of TKWJ v The Queen [94] the appellant was alleged to have committed sexual offences against the young son (“C”) and daughter (“K”) of a woman with whom he was in a relationship. He had separate trials for the offences against the son and the daughter. In the course of the trial involving the son, the appellant’s counsel informed the prosecutor that he intended to adduce evidence of the accused’s good character. The prosecutor informed him that he would seek to call the daughter to give evidence about the allegations relating to her to rebut the evidence of good character. As a result, counsel did not call evidence of good character, and the appellant complained that this was unfair. The High Court of Australia held that the decision not to call good character evidence was a matter falling within the discretion of counsel as to how he would conduct the defence, and viewed objectively, the decision was a rational tactical decision made to avoid a forensic risk. It did not make the trial unfair or produce a miscarriage of justice. 101.In one of the leading judgments in TKWJ, Gleeson CJ stressed that decisions of counsel in the conduct of the case had to be considered in the context of the adversarial system of justice:
102.In TKWJ, the appellant additionally contended that counsel’s failure to obtain a preliminary ruling regarding K’s evidence admissibility resulted in a miscarriage of justice. The Court held that it had not been established that if counsel had sought an advance ruling, there was a significant possibility that the appellant would have been able to call good character evidence and that the failure to call such evidence resulted in the loss of a chance of acquittal that was fairly open. In his judgment, Gleeson CJ dismissed this argument on the basis that it engaged in speculation by suggesting nothing more than that the trial could have been conducted differently. He said:
103.The appellate court is not concerned with whether the defence case could have been conducted differently because different counsel may take a different approach that is rational and reasonable, falling within his or her wide discretion. Criminal trial strategy inherently requires defence counsel to make tactical choices designed to obtain a forensic advantage or to avoid a forensic disadvantage. The determinative issue is whether, by the complained act or omission, the accused was “a victim of unfairness”[95] or was deprived of “a chance of acquittal that was fairly open”[96]. 104.McHugh J observed in TKWJ that while “flagrant incompetence” was a convenient label that may show that a miscarriage of justice has occurred in a particular case, it was unhelpful generally in determining whether there has been a miscarriage of justice. He clarified that counsel’s conduct constitutes a subsidiary consideration, with the court’s paramount concern being whether a miscarriage of justice occurred. He went on to explain:[97]
105.One particular consideration that merits attention in the present context is how the court should approach an accused’s decision not to present evidence. This was addressed by Gaudron J in her judgment in TKWJ, where she said:[98]
106.Hayne J similarly examined this matter in TKWJ, noting that the miscarriage in that case lies in the fact that some evidence could have been, but was not, placed before the jury (good character evidence of the accused), and emphasised that “the ultimate question will be whether the jury would have been likely to entertain a reasonable doubt about guilt if all the evidence had been before it”. [101] He emphasised that the question, about what the jury would, or may, have done had all the evidence been presented before it, does not arise in the abstract, and it would be wrong for an appellate court to approach the question as if it did. He went on to discuss the nature of a criminal trial and the rules about fresh evidence on appeal. He then stressed:[102]
107.We shall revisit this issue when determining whether to apply the proviso, turning on whether the missing call and its handling at trial may have resulted in unfairness to the appellant. The allegations of flagrant incompetence 108.At trial, the appellant was represented by solicitor, Mr Wong Ka Hing, legal clerk-interpreter, Mr Chu Wing Yin, of Messrs Wong & Co, and lead counsel Mr Ian Polson, a competent criminal practitioner with extensive experience in the conduct of criminal trials. 109.The appellant submitted two affirmations and testified before this Court. He affirmed providing written instructions to Mr Chu on 8 January 2020, with English translations provided to trial counsel by 18 February 2020, in which he stated that on the day before the killing, the deceased telephoned the appellant to say they could go for yum cha on 4 December at 9 am in Tuen Mun.[103] He stated that his father had used another number to call him, and he noticed that the Admitted Facts did not make reference to this other number when they were read over to him by Mr Chu on 7 July 2021. He told Mr Chu that the “telephone records of 3 December 2018, records where my father contacted me were missing.”[104] He claimed Mr Chu dismissed the concern, stating there was no problem because he could bring it up in court and it was not “impactful” on the case.[105] Despite the appellant questioning Mr Chu about the number, Mr Chu told him that he could address it in his testimony and instructed him to sign the Admitted Facts.[106] He claimed that Mr Chu asked him if the 52028882 number belonged to his father but he “could not answer for certain” because when he received a call on this number on 3 December 2018 he did not know that it belonged to his father, except when he answered the call and heard his father’s voice.[107] Mr Chu never left his place by the dockside to consult the trial solicitor or counsel. He said that when he was told to sign the Admitted Facts, he did so having in mind Mr Chu’s advice. 110.The appellant alleged that during the morning break on the same day, his trial counsel and solicitor discussed the call record issue with him. He testified they advised addressing his father’s call during his testimony, as it would not really impact the trial, thus there was no need to do anything at that moment.[108] He stated he was never advised that the defence could request disclosure regarding the deceased’s other mobile telephone number. He maintained he had never contemplated concealment of this matter regarding the telephone records, nor considered it from a tactical perspective.[109] 111.In his testimony, the appellant stated he received the Admitted Facts and accompanying documents at the end of the trial, although he accepted that they were read and translated to him on 7 July 2021.[110] He did not expect there would be call record information in the Admitted Facts, as he did not know what this document was.[111] While acknowledging the Admitted Facts omitted his father’s return call, he maintained that he was advised he could supplement this during testimony.[112] He said he did not know if the 5202 prefix belonged to his father, and he did not tell Mr Chu that the 5202 prefix was his father’s number. He said he had not created a contact for that number. He did not mention the number when he was asked questions in the re-examination.[113] He said he came to know about the number about 2 to 3 months after the trial when his younger sister came to visit him. She told him that she had received from the police their father’s property, including two SIM cards from the father’s telephone. He said he thought this was strange, and he asked his sister about it, and she told him that their father had two telephone numbers. This prompted him to search for the call records, from which he identified the 5202 prefix as the number belonging to his father.[114] He confirmed that when he was given his case papers, he probably read the call records, but did not pay any particular attention to his father’s telephone calls to him.[115] He said he reread the call records only after his trial. He claimed he had previously tried looking for the call records because he had been accused of telling lies.[116] He then brought to the attention of his current solicitors the call records of his mobile telephone number, which the prosecution had been previously provided with[117]. 112.We note inconsistencies in the appellant’s testimony about discovering his father’s alternate number. On this version, his sister informed him that the police had returned the father’s property, including his telephone, which had two SIM cards. This account conflicts with his own evidence confirming that the police never returned the father’s property to his sister. 113.Mr Tang Tim Sik, the appellant’s current solicitor, affirmed that upon assuming responsibility for the appeal on 23 December 2021, he received a six page document from the appellant regarding the call records of 63766462, who told him that he had received incoming calls from his father on 67757376 or 52028882.[118] This prompted Mr Tang to make enquiries about the matter near the end of May 2022. The electronic committal bundle from Messrs Wong & Co contained the exhibits officer’s statement (in Chinese as well as an English translation) and a list of exhibits, which showed that three mobile telephones had been seized by the police including a Samsung mobile telephone containing two SIM cards (exhibits 116-118).[119] He ascertained, in October 2022, that the deceased’s mobile telephone with two SIM cards (67757376 and 52028882) had been seized from the appellant’s residence, and that paragraph 46 of the Admitted Facts did not list the call from the 52028882 number to the appellant’s mobile telephone at 5:43 pm on 3 December 2018 for 34 seconds. 114.The defence team at trial submitted affirmations addressing the allegations made against them regarding the missing call, with Mr Polson and Mr Chu also giving evidence before us. 115.Legal clerk Mr Chu affirmed receiving and translating the appellant’s written instructions for trial counsel. He stated that the appellant did not request to obtain further mobile telephone records in any of their pre-trial conferences. He explained the Admitted Facts to the appellant at the dockside on the first day of trial. He sat next to him so he could read it as well. Due to the length of the Admitted Facts, it took him over one hour. The appellant told him he understood and agreed the Admitted Facts. He recalled no queries or instructions from the appellant concerning either the Admitted Facts or the telephone number issue. If he had, he would have made a note and spoken to counsel or the solicitor about it, but he confirmed from his notes that he did not do so.[120] 116.Trial solicitor Mr Wong stated that Mr Chu would regularly report on the progress of the case. He stated that Mr Chu had not reported to him about any request from the appellant to obtain further mobile telephone records on any number. He saw that, when Mr Chu was explaining the Admitted Facts to the appellant, the latter nodded his head, and he did not hear the appellant say anything in relation to the missing call.[121] 117.Trial counsel Mr Polson, in his affirmation dated 22 May 2023, was asked to recall events that occurred some time ago. He explained that most of the instructions were handled by Mr Chu, including the written instructions, because of the need for translation. He acknowledged the appellant’s written instructions referenced his father’s call, but he could not recall whether he attached any significance to this matter in the general context of the defence he was instructed to present. He explained that the appellant ran the partial defences of manslaughter and the complete defence of self defence, and he naturally focused the defence case on the relevant forensic issues consistent with these defences, bearing in mind that there was no dispute that the appellant had killed his father. Consequently, the defence team primarily addressed, amongst other things, the blood splatter patterns and the forensic pathology reports as to the angle of the knife used to inflict the wounds on the deceased.[122] He accepted that neither he nor his solicitor wrote to the prosecution to obtain call records of the 52028882 number. He stated he could “only assume that at the time [he] was unaware of the existence or relevance of” that telephone number. He also stated that he had no recollection of any detail as to dockside conferences with the appellant concerning the completeness of the Admitted Facts.[123] 118.In the appellant’s written instructions, he mentioned he received a call from his father regarding the arrangement to meet the following day for yum cha.[124] Mr Polson believed he was unaware of the existence or significance of the 52028882 number. This could explain why it was not included in the Admitted Facts and why it took him by surprise when it was raised in the cross-examination of the appellant.[125] He explained that his normal practice would be to take appropriate corrective action if the defendant did not understand or agree the Admitted Facts.[126] 119.In his testimony, Mr Polson reaffirmed that he did not check the instructions against the call records as this was not a significant matter at the time. When preparing the appellant’s defence, the legal team largely focused on forensic and physical evidence of the altercation between the appellant and his father and they did not feel that the telephone records played a major part in this because it was a case where the appellant was unlikely to get any sympathy from the jury, particularly because of the theft after the killing of his father. The defence wanted to show that the injuries to the father revealed that the appellant was in a frenzy and out of control, and was therefore not responsible for his actions as he had been provoked.[127] 120.In conclusion, we have traced the evolution of the missing call as an appeal ground, through successive iterations, until it primarily focused on allegations of flagrant incompetence on the part of the appellant’s legal representatives in their mishandling of this issue at trial. It is relevant in assessing the appellant’s evidence of his concern about the missing call during the trial. 121.After his conviction for the murder of his father on 5 August 2021, the appellant filed a notice of application for leave to appeal against conviction (Form XI) on 13 August 2021. The notice enumerated several complaints regarding the Judge’s instructions in respect of his state of mind, the forensic pathologist’s evidence and the defence case. The appellant said in evidence before us that he made no mention regarding the issue of the missing call because he did not think of it, and it was not something he could pursue until he spoke to his sister. As we have already pointed out, the sister did not receive the father’s telephone and two SIM cards as claimed by the appellant. 122.On 11 April 2022, Mr Young filed perfected grounds of appeal on the appellant’s behalf. There were four grounds of appeal. The first three grounds concerned post-offence conduct and the fourth concerned inferential reasoning in respect of the provocation defence. Again, there was no mention regarding the issue of the missing call. 123.On 3 November 2022, the appellant filed an amended perfected grounds of appeal signed by Mr Young and Mr So. In addition to the previous four grounds, the appellant included a fifth ground seeking to adduce fresh evidence regarding the missing call. This marked the first instance where the missing call formed a substantive ground of appeal. 124.The appellant’s application for leave to appeal against his conviction was heard by a single judge, who handed down his judgment on 8 December 2022. On 22 March 2023, the appellant submitted a second amended grounds of appeal, in which the first ground concerned the post-offence conduct, the second ground was the previous fourth ground, and the third ground, which was a new ground, complained that the appellant’s legal representatives were flagrantly incompetent in their handling of the missing call.[128] The submissions on flagrant incompetence 125.Mr Young contended that since the appellant had provided timely instructions to his trial representatives, and it was readily apparent that there were no records of the deceased calling the appellant on 3 December 2018, competent legal representatives would have made a request to the prosecution for the telephone subscriber and call records for both SIM cards. The omission fell below the professional standards expected. He argued that the absence of a specific instruction from the appellant to his lawyers to request such disclosure or evidence was not an acceptable excuse. Whilst acknowledging it was contentious whether the appellant raised the matter of the missing call when the Admitted Facts were read to him on the first day of trial, he submitted that even if he did not, it was plain that paragraph 46 of the Admitted Facts meant that the calls as set out were all that had passed between the appellant and the deceased. Thus, he contended that no competent legal representative would have agreed to the terms of that paragraph in the Admitted Facts until the matter had been clarified with the appellant. No steps had been taken to seek further disclosure from the prosecution. He submitted that both the trial solicitor and counsel failed to meet the requisite standard in defending the appellant at trial. As a result, the appellant’s credibility was damaged in a trial that was less than fair. 126.Mr Cheng countered that the appellant had access to the call records and could have identified his father’s other telephone number, but did not do so. In these circumstances, it seemed that defence counsel was content to deal with the matter by the objection he raised during the appellant’s cross-examination and by the Judge giving a lies direction. The conduct of the defence in this manner was entirely within counsel’s wide discretion, and was far removed from flagrantly incompetent advocacy. Discussion on flagrant incompetence 127.During his testimony, Mr Polson impressed us with his candour and frankness as well as his professional and conscientious manner in conducting the defence case on behalf of the appellant. 128.The appellant’s testimony proved less convincing in several regards, particularly when we were informed during the hearing that the police had not handed over the deceased’s property to his sister, including the deceased’s telephone and two SIM cards, which he claimed was when he first knew of the other number and the reason he contacted his legal representatives about the matter. It will be recalled that the appellant testified that his sister told him that the police had returned the father’s property, including two SIM cards. He did not know that his father’s telephone had two SIM cards.[129] He claimed ignorance of the alternate number and whether the 5202 prefix belonged to his father or someone else.[130] It was noted that in cross-examination, the appellant said his father had “two card numbers”[131] and yet throughout the trial, he said he did not know his father had two SIM cards.[132] When questioned about the 5202 prefix he said he did not recognise the number starting with “5” as his father’s number, even though it was used several times between them in that short period between 1 to 4 December 2018. He said after 4 December 2018, he totally forgot the 5202 prefix.[133] He claimed that when the question of the missing call arose, firstly, when the Admitted Facts were explained to him, and secondly, when it was raised in cross-examination, he sought to access the call records in his possession but could not find them.[134] He acknowledged he did nothing further about the matter, nor did he ask his legal representatives to check the call records, even though he was concerned about the matter when it arose.[135] 129.The defence faced significant challenges. The appellant’s killing of his father and withdrawal from his father’s bank account to pay off a loanshark were uncontested. In defending the charge of murder, the appellant relied on the partial defences of manslaughter by provocation and an unlawful and dangerous act, as well as the complete defence of self defence. The case papers, which are referred to as the committal bundle, were voluminous, including numerous statements, three lengthy video recorded interviews, and a video recorded case reconstruction, and a substantial amount of other material, including forensic and medical evidence and information concerning particular events and call records between the appellant and his father. It is understandable that the appellant’s legal representatives would not be able to recall the intricate details of the committal bundle, particularly the call records relating to the parties. The issue of the missing call did not assume any significance until the appellant mentioned in his examination-in-chief that after he had telephoned his father and had a lengthy conversation with him, about an hour later, he received a call from him, who asked him to go out for tea the following day[136]. 130.Having weighed the evidence and arguments, we conclude that the appellant had not brought to the attention of his legal representatives that his father used an additional telephone number. As part of his preparation for his trial, the appellant had the case papers, including the call records. However, at the relevant times when he claimed he searched for them to show his legal representatives that his father had an additional telephone number, he could not find them. He explained that it was only when his sister visited him some two months after the trial that she informed him that the police had returned to her the father’s property, including his mobile telephone and two SIM cards. He again looked for the call records and identified his father’s other number. As already pointed out, the police did not return the father’s telephone and two SIM cards to the sister as claimed by him. The trial evidence demonstrates the appellant’s awareness of his father’s additional number because he testified that his father had “two card numbers”. It would appear that he was content with the way the matter had been dealt with by his counsel, as he did not pursue the matter further. 131.We determine that, given all of the circumstances, no valid criticism lies against the appellant’s trial legal representatives regarding this matter. The findings regarding the missing call 132.Having considered the evidence before us and the submissions from the parties, we make the following findings:
The effect of the missing call 133.To assess the missing call’s impact, we need to examine it within the broader context of the case as a whole. We undertake this examination to determine whether it resulted in any unfairness to the appellant. 134.The appellant, deeply indebted to a loanshark, was financially desperate. The loanshark was harassing him and threatened to harass his family for a payment of $210,000 on 4 December 2018 (consisting of the principal of $200,000 and the first of the 14 monthly payments of $10,000). Unable to make payment, he claimed he intended to commit suicide. He telephoned his estranged father at 4:45 pm on 3 December 2018 for a duration of 236 seconds. The father telephoned the appellant at 5:43 pm on 3 December 2018 on the 52028882 number for a duration of 34 seconds (the missing call). 135.Upon arrest in Hong Kong, the appellant stated under caution that his “original intention” had been to borrow money from his father, but he turned him down, swearing and hitting him.[137] 136.In his 1st VRI, the appellant stated that he asked his father on 3 December 2018 to have yum cha the next day as he wanted to see him for the last time before committing suicide.[138] Regarding who initiated the yum cha meeting, his court testimony diverged. The appellant testified that on 3 December 2018, after he called his father to tell him he would not be in Hong Kong and to take good care of himself, his father called him back at “5:00 something” and asked him to have tea with him the following day.[139] The prosecution challenged the assertion about the father arranging the meeting because (1) the Admitted Facts contained no record of such a return call, to which he explained his father had two card numbers[140]; and (2) his evidence was contrary to his statements in the 1st VRI that he wanted to see his father for the last time and he asked him to go for yum cha, to which he said his statements were correct but maintained it was his father who suggested to go for yum cha when he called him after his call[141]. 137.Several relevant events preceded the appellant’s meeting with his father. 138.At 12:17 am on 3 December 2018, the appellant messaged PW7, who worked for HSBC, but was overseas at the time. He asked her about the daily limit of an ATM transfer between HSBC accounts not in his name. PW7 answered at 8:28 am that it was $50,000 but would be increased to $80,000 by application through the ATM one day in advance. At 8:51 am, the appellant messaged her that it was another person transferring money to him and he asked how it could be done. She explained the procedure to him.[142] 139.At 12:58 pm on 3 December 2018, the appellant messaged PW8 about how to tell if a Rolex watch was genuine or not, and she told him to sell it to find out.[143] 140.At 8:37 am on 4 December 2018, the appellant telephoned his father, who made two return calls at 9:00 am and 9:03 am respectively. The appellant telephoned his father at 9:08 am and then at 9:11 am. 141.At 9:40 am on 4 December 2018, the appellant and his father met at Café de Coral in Leung King Plaza, Tuen Mun. At 9:55 am, the appellant left Café de Coral. He returned to Café de Coral at 10:00 am, and he and the deceased left. The deceased went to his flat at 10:30 am and then left at 11:10 am. At 11:15 am, the appellant and the deceased entered the deceased’s flat, and in the period from that time to 12:50 pm, the appellant killed the deceased.[144] He knew his father had an HSBC account and that he kept his ATM card and the PIN number on a piece of paper in his wallet. He had previously helped his father use the ATM facility.[145] After killing his father, he took the ATM card and PIN number and made a series of transfers and withdrawals from his father’s HSBC account to the loanshark’s HSBC account over the following days. 142.After disposing of his father’s body, the appellant went back to check Waterfall Bay, and saw the police had cordoned off the area. On seeing the police, he decided to leave Hong Kong and took a flight to Taiwan. He told PW7 that there was a “hot argument about money issue” and he “had become emotional and angry and had accidentally killed the man.” He said he was in Taiwan because there was no extradition to Hong Kong. He was frightened and did not know what to do.[146] 143.Following the killing, the appellant (1) transferred or withdrew from the deceased’s account a total of $203,000, which he paid into the loanshark’s account using the deceased’s ATM card; (2) borrowed $30,000 from a finance company; (3) pawned a Rolex watch for $8,000; and (4) met with a property agent about the tenancy of his flat. 144.In his defence to murder, the appellant advanced several arguments: firstly, self-defence (a complete defence), and secondly, manslaughter by provocation or by an unlawful and dangerous act. After giving his account of what happened when he killed his father, the appellant gave the following answers to the concluding questions from his counsel:[147]
145.The appellant concluded his defence by saying he was unable to give “any reason” for killing his father but would plead guilty to manslaughter.[148] Defence counsel in his closing address argued the appellant “lost his self-control and stabbed in a frenzy” and he should be convicted of manslaughter (by provocation). [149] 146.The appellant claimed he met his father ostensibly to bid farewell before committing suicide. He said he was going to stab himself and jump into the sea.[150] According to the appellant, this explained the presence of the knife in his bag. The prosecution alleged that the appellant brought the knife to murder his father to steal his bank savings. Post-offence conduct was relevant to show that he never intended to commit suicide, and the knife was in the bag to be used on his father. The appellant said he tried to commit suicide after killing his father, but failed to do so. Instead of the knife, he bought a pair of scissors, and he tried to drown himself but was washed ashore.[151] 147.The appellant’s post-offence conduct, specifically of using his father’s ATM card to transfer (limit of $50,000) and withdraw funds to pay the loanshark was relevant to show that before meeting his father, he had inquired of PW7 as to how to maximize the ATM transfer limit between HSBC accounts. As submitted by prosecuting counsel, it revealed the appellant’s motive for meeting his father.[152] 148.The appellant testified that his father was fully conscious and acted aggressively and abusively towards him.[153] However, the toxicological tests revealed the presence of alcohol, and two sedative and hypnotic drugs in the deceased’s blood, which would have suppressed his conscious level and impaired his motor functions.[154] The pathologist explained there were no defensive injuries or signs of a struggle, despite the repeated stab wounds.[155] Together with the alcohol and drugs in the deceased’s system, he was of the opinion that the deceased was completely unconscious or at least very dull.[156] The pathologist expressed the opinion that the appellant’s various accounts of the deceased’s conduct were in contrast to his state of inactivity. He concluded that the appellant stabbed the deceased six times without the deceased changing posture.[157] 149.The expert testimony contradicted the appellant’s account that the deceased was violent and abusive towards him. 150.The appellant also gave different accounts regarding the deceased’s conduct. He was cross-examined about the discrepancies between various accounts he provided in his out-of-court statements, which differed from his evidence in court. In his testimony, he said he was hit on his head with a stool, and a glass and an alarm clock were thrown at him, which had not been previously ventured.[158] 151.Despite claiming his father struck his head several times with a stool, there was no injury or mark to the appellant’s head.[159] 152.The father’s return call became contentious during cross-examination when the prosecution noted that there was no record of such a call in the Admitted Facts, and that it was the appellant who suggested having yum cha with his father the next day. Defence counsel objected, arguing that the Admitted Facts did not say the calls were the only ones received. On this issue, there was a discussion between the Judge and counsel for a lies direction concerning the arrangement for yum cha: [160]
153.The Judge explained that since the prosecution alleged the appellant lied about his father initiating the yum cha meeting, he would issue a lies direction in case the jury came to that conclusion. Mr Polson accepted that such a direction was quite favourable to the defence. Notably, the lies direction focused on the appellant’s alleged lie about his father initiating the yum cha meeting. There was no reference to the alleged lie about the return call, but it was linked and eventually became part of the lies direction. The prosecution’s emphasis on the alleged lie about the missing call was key to undermining the appellant’s claim that the father had initiated the yum cha meeting. There was, of course, other evidence that undermined his claim, such as his circumstances and previous statement to the police, but the alleged lie about the missing call was given considerable prominence in the context of this issue. 154.The lie about the missing call did feature in the lies direction to the jury. A collateral issue was whether the alleged lie broadly discredited the appellant’s credibility. A countervailing factor that also went to the appellant’s credibility, was the good character direction that the Judge gave to the jury. The judge instructed the jury:[161]
155.This distinction highlights the importance of examining an irregularity in its full context, and not in isolation, for there may be other matters that may have a crucial bearing on the significance and the effect of the irregularity under consideration. Whether a material irregularity 156.We find the allegation that the appellant lied about his father’s call constituted an irregularity. The question for us is whether the irregularity was material, and if so, whether the proviso should be applied. To assess the materiality of the irregularity, McWalters JA held in HKSAR v Lam Hing Chit [162], “it is not to be judged in a factual vacuum but rather within the overall circumstances of the case, having due regard to the evidence and the likely effect, assessed realistically, on the jury’s reasoning in reaching their verdict.” 157.As we have already noted, the alleged lie about the missing call was part of the lies direction to the jury, which aims to warn them not to adopt an impermissible reasoning process. The Judge instructed the jury that the lies direction was necessary because the prosecution alleged the appellant concealed his role in arranging yum cha the next morning:[163]
158.The Judge outlined the prosecution’s argument that the Admitted Facts contained no record of such a call and the appellant’s explanation that his father had two telephone numbers, hence there was no record on the other number. He explained the prosecution’s contention that the appellant “lies about this call to create the appearance that it was the father who arranged the meeting to cover up his motive to meet the father to get the father’s money. Whether the defendant is lying in this regard is a question for you.”[164] 159.Initially, the Judge instructed the jury that if they concluded the appellant lied, they were entitled to consider whether it supported the prosecution case, after which he gave the standard direction. He later clarified his instruction by telling the jury that whether the appellant lied when he testified that it was his father who telephoned him to make the arrangement to go to yum cha went solely to his credibility.[165] 160.In reality, the appellant did receive a call from his father following their lengthy telephone conversation. He was accused of lying about it. It clearly went to the jury’s assessment of the appellant’s credibility. We hold that treating the appellant as untruthful on a pivotal issue that was later proven truthful (receiving a return call from his father) constituted a material irregularity. 161.Section 83(1) contains a curative provision which entitles the court to dismiss an appeal, notwithstanding that it finds an error of law or material irregularity, if the court considers that no miscarriage of justice has actually occurred. The test to be applied is whether a hypothetical reasonable jury, properly instructed, would on the evidence, without doubt convict or would inevitably come to the same conclusion: Yuen Kwai Choi v HKSAR [166]. In addressing this question, we do it through the prism of a hypothetical reasonable jury and how it would have acted in the absence of the error or irregularity. 162.When applying the proviso, the court must determine whether the error of law or material irregularity may have affected the result of the trial and deprived the accused of a fair chance of acquittal. As we stated in HKSAR v Ma Chun Kit [167], the proviso’s applicability turns on the outcome of the trial and whether a miscarriage of justice has occurred. To this end, it is important to carefully evaluate the point that is being decided in favour of the appellant, and its significance, in order to determine if, by application of the proviso, no miscarriage of justice can be said to have occurred. 163.As we have already stated, we are satisfied that the appellant knew of the father’s alternate telephone number, but for whatever reason, he decided not to pursue the matter beyond what was said in his evidence and on his behalf. We do not accept that he raised the missing call with his legal representatives either at the time he had explained and approved the Admitted Facts, or after he had given evidence. Nevertheless, we must assess whether the evidence of the missing call and the allegation that he lied about the matter in the context of the rest of the evidence precludes the application of the proviso. 164.We conclude the appellant could have clarified the missing call issue, but chose not to do so. In all probability, this was because he thought the matter had been appropriately dealt with. We find no fault whatsoever with his legal representatives, who very ably represented the appellant in a difficult and complex trial. 165.We have been presented with fresh evidence that establishes the appellant did not lie about his father calling him after he had called him. This call lasted 34 seconds. The only evidence of the contents of the telephone conversation came from the appellant. He said that his father suggested they meet for yum cha the next day. The prosecution alleged that he fabricated the claim that his father had called him back and initiated to meet for yum cha. Although evidence of the missing call existed, it was not adduced, and the appellant gave an explanation, as reinforced by his counsel, that the father had another telephone number. 166.The Judge gave the jury a lies direction in respect of this matter, which is a direction favourable to an accused where it is alleged that he or she has lied about a relevant matter. We note that in cases addressing an allegation of lies, the proviso is seldom applied when a lies direction has not been given to an accused. In the present case, a lies direction was given. However, the argument is that the appellant had not lied about the missing call and that this would have reflected on his credibility, which was an issue in this case, particularly in respect of the contents of the discussion of the missing call and his account of what happened in the Po Tin Flat. As we have already noted, the appellant received the benefit of a good character direction in which the jury were instructed that this was a favourable consideration in assessing his credibility. We do not consider that this would have negated or ameliorated the effect of the irregularity to a significant extent. 167.We are of the view that the appellant could have raised the issue of the missing call, but chose not to do so. It could be argued that it was a tactical decision on his part not to pursue the matter, even though he had not discussed it with his legal representatives. He has advanced this matter on appeal by essentially blaming his legal representatives for his own conduct. On the other hand, he was alleged to have lied about the missing call, and this was made a prominent issue at trial, so much so that he was given a lies direction in relation to it. While such a direction is favourable to an accused, it still remains that he was alleged to have lied when he had not. Critically, the appellant’s alleged lie about the missing call went to his credibility, which in turn may have had a bearing of the jury’s assessment of his testimony in determining whether or not he was provoked by his father’s conduct as he claimed in evidence, and on the outcome of the trial. We conclude that this is not an appropriate case to invoke the proviso, notwithstanding that the appellant was the author of his own misfortune in the way this matter was presented and left before the jury. 168.After thorough consideration, we allow the appeal and quash the conviction of murder. As provided by s. 83(3), an order of the Court of Appeal quashing the conviction shall, except when under s. 83E the appellant is ordered to be retried, operate as a direction to the court to enter a judgment and a verdict of acquittal. Accordingly, this judgment is subject to hearing any argument on the issue of retrial.
Mr Raymond Cheng, SADPP and Mr Justin Ma, SPP, of Department of Justice, for the respondent Mr Simon Young and Mr Simon So, instructed by Ng & Co, Solicitors, assigned by Director of Legal Aid, for the appellant [1] Appeal Bundle (AB), pp 47-50. See also the 1st video recorded interview, at counters 293-307, AB, pp 274-275; the 2nd VRI, at counters 230-237, AB, pp 388-389; the Reconstruction, at counter 701, AB, p 619. [2] HKSAR v Lai Kan-yau[2022] HKCA 1777, per Zervos JA. [3] AB, pp 100O-101T. [4] AB, pp 76M-77U and 112K-117K. [5] AB, p 88F-I, 130L-M, 137J-U, 142A-D. [6] AB, pp 786O-T, 788A-J and 819L-820I. [7] AB, pp 125F-128F; Admitted Facts, at [68], AB, p 32; the WhatsApp messages were produced as exhibit P174A, AB, pp 961-962. [8] AB, pp 125T-126C. [9] Admitted Facts, at [70], AB, pp 32-33 and 128P-129N. [10] AB, p 129E. [11] Admitted Facts, at [46], AB, pp18-19. [12] AB, pp 97A-98R. [13] AB, pp 98S-100N. [14] AB, pp 108F-117L. [15] AB, p 111A-F. [16] Admitted Facts, at [52]-[58], AB, pp 22-30. [17] 1st VRI, AB, p 245, at counter 45. [18] AB, pp 129P-133A. [19] AB, pp 133B-134D. [20] AB, pp 134D-137H. [21] AB, pp 137I-140T. [22] AB, p 141A-D. [23] The appellant’s evidence, AB, p 791I-O. See also AB, pp 143U-144A. [24] AB, pp 798Q-801E. [25] Reconstruction, AB, pp 618-619, at counters 690-697. [26] AB, pp 820J-822C. It was an admitted fact that the deceased had applied to have his MPF withdrawn and deposited into his HSBC account in October 2018: Admitted Facts, at [4], AB, pp 9-10. [27] Admitted Facts, at [46], AB, pp 18-19 and 822D-824K. [28] AB, p 859C-J. [29] AB, pp 790N-791G. [30] AB, p 794I-M. [31] AB, p 841L-Q. [32] AB, pp 842G-845B. [33] AB, pp 851A-852O. [34] AB, p 808E-H. [35] AB, p 890J-R. [36] AB, pp 863D-883C, Prosecution Closing address. [37] AB, pp 883L-890R, Defence Closing address. [38] The 2nd Amended Perfected Grounds of Appeal dated 22 March 2023. [39] AB, pp 75N-76M. [40] AB, pp 88O-91C. [41] AB, p 910R. See also pp 910U-911H and 913E-H. [42] AB, pp 910C-913K, AB p 912P-R. [43] AB, p 93F-O. [44] R v Arcangioli [1994] 1 SCR 129, pp 145D-H and 158O-159E. [45] R v White and Côté [1998] 2 SCR 72, at [19]-[33]. [46] Ibid., at [28]. [47] AB, pp 158J-159E. [48] Specimen Directions in Jury Trials Volume 2: 2020 Revision of Select Topics, at p 112-4. [49] HKSAR v Zhou Limei [2020] 1 HKLRD 234. [50] AB, pp 158D-159E. [51] R v White & Côté [1998] 125 CCC (3d) 385; R v White [2011] 267 CCC (3d) 453; R v Calnen [2019] 374 CCC (3d) 259; R v Millard 2023 ONCA 426; R v Coamtar (2006) 167 A Crim R 504. [52] HKSAR v Khan Asif Ali [2023] 4 HKLRD 327, at [30]-[31]. [53] R v Ibrahim [2003] VSCA 180, at [72]. [54] Nguyen Anh Nga v HKSAR (2017) 20 HKCFAR 149, at [22]. [55] Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209, at [17] per Bokhary PJ . [56] Khan Asif Ali, at [30] and [31]. [57] AB, p 889Q. [58] AB, p 93F-O. [59] AB, pp 808E-H and 851E-F. [60] AB, p 890J-S. [61] AB, pp 75T-76D and 76H-M. [62] AB, pp 822D-824K. [63] AB, p 868B-O. [64] AB, pp 81O-82T; discussion between the Judge and counsel at AB, pp 892Q-895G. [65] Admitted Facts, at [46], AB, pp 18-19. [66] 1st VRI, AB, p 245, at counter 45. [67] 1st Affirmation of Lai Kan Yau, dated 26 April 2023 and 27 July 2023, at [21], exhibit LKY-3. [68] AB, p 791I-O. [69] AB, pp 822D-823F. [70] AB, pp 822D-824Q. [71] AB, p 859C-J. [72] AB, pp 858S-859J. [73] 1st Affirmation of Lai Kan Yau, at [21]. [74] AB, p 868B-Q. [75] AB, pp 81N-82T. [76] AB, pp 93P-94A. [77] 1st Affirmation of Tang Tim Sik, dated 20 October 2022, at [9] and exhibit “TTS-1”. [78] 1st Affirmation of Tang Tim Sik, at [19] and exhibit “TTS-5”. [79] Mahabobur Rahman v HKSAR (2010) 13 HKCFAR 20, at [13]. [80] Mahabobur Rahman, at [16]. [81] 2nd Affirmation of Tang Tim Sik, dated 26 April 2023, at [4] and exhibit “TTS-6”. [82] AB, pp 93P-94B. [83] AB, p 822L-O. [84] AB, pp 823N-824K. [85] AB, pp 892Q-893D. [86] AB, pp 81T-82E. [87] 1st Affirmation of Lai Kan Yau, at [23]-[24]. “23. I had the chance to re-read the call records after I was convicted at trial. I saw a number not known to me therein (5202-8882) that rang me on 3 December 2018. I then asked my younger sister when she paid a prison visit to me. It was then I realised that my father actually had another phone number being 5202-8882 24. I did not know that my father had another phone number when I signed the Admitted Facts that day.”. [88] Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, at [6]. [89] R v Birks (1990) 48 A Crim R 385, 392. [90] Chong Ching Yuen, at [10]. [91] Ibid., at [13]. [92] The proviso in section 83(1) reads: “Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.” [93] Chong Ching Yuen, at [47]. [94] TKWJ v The Queen [2002] HCA 46. [95] TKWJ, at [16] per Gleeson CJ. [96] Mraz v The Queen (1955) 93 CLR 493, 514. [97] TKWJ, at [97]. [98] TKWJ, at [32]-[33]. [99] Ratten v The Queen (1974) 131 CLR 510, 517. [100] Mickelberg v The Queen (1989) 167 CLR 259, 301( per Toohey and Gaudron JJ). See also 273 (per Mason CJ) and 275 (per Brennan J). [101] TKWJ, at [104]. [102] TKWJ, at [107]-[108]. [103] 1stAffirmation of Lai Kan Yau, at [20]-[21] and exhibit “LKY-3”. [104] Ibid., at [12]. [105] Ibid., at [13]. [106] Ibid., at [14] and [15]. [107] Ibid., at [25]. [108] 1stAffirmation of Lai Kan Yau, at [17]. [109] 1stAffirmation of Lai Kan Yau, at [10]-[19]. [110] Darts, 13 January 2025, at 3:29:50-30:22. [111] Darts, 13 January 2025, at 3:31:30. [112] Darts, 13 January 2025, at 3:34:45. [113] Darts, 13 January 2025, at 3:41:40. [114] Darts, 13 January 2025, at 3:55.00-59:00. [115] Darts, 13 January 2025, at 4:01:00-22. [116] Darts, 13 January 2025, at 4:02:40. [117] 1stAffirmation of Lai Kan Yau, at [26]; 1stAffirmation of Tang Tim Sik, at [9] and exhibit “TTS-1”. [118] 1st Affirmation of Tang Tim Sik, at [9]-[11]. [119] 2nd Affirmation of Tang Tim Sik, at [10]. [120] Affirmation of Chu Wing Yin, dated 24 May 2023, at [7]. [121] Affirmation of Wong Ka Hing, dated 24 May 2023, at [5]-[6]. [122] Ibid., at [3.1]. [123] Affirmation of Ian Hastings Polson, dated 22 May 2023, at [2]-[8]. [124] Ibid., at [4.1]. [125] Ibid., at [5.1] and [6]. [126] Ibid., at [8.1]. [127] Darts, 3 January 2025, at 10:16:20-17:25. [128] Leave judgment, at [33]-[39]. [129] Darts, 14 January 2025, 10:06:38. [130] Darts, 14 January 2025, 10:07:13. [131] AB, p 822K-O. [132] Darts, 14 January 2025, 10:09:59. [133] Darts, 14 January 2025, 10:20:18-35. [134] Darts, 14 January 2025, 10:28:24-29:17. [135] Darts, 14 January 2025, 10:35:50-36:08. [136] AB, p 791I-O. [137] Admitted Facts, at [41], AB, pp 16-17. [138] AB, p 245, 1st VRI, at counter 45. [139] AB, p 791I-O. [140] AB, p 822G-O. [141] AB, pp 823S-824K. [142] AB, pp 125T-126C. [143] AB, p 129B-D. [144] Admitted Facts, at [9]-[13], AB, p 11. [145] AB, pp 821N-R and 869S-T. [146] AB, p 126J-N. [147] AB, p 808E-H. [148] AB, p 808F. [149] AB, p 890P-R. [150] AB, p 830N-O. [151] AB, pp 825B-828K. [152] AB, pp 867F-868M. [153] AB, p 834K-L. [154] AB, pp 872F-873H. [155] AB, p 112S. [156] AB, p 113S-T. [157] AB, pp 108F-115I. [158] AB, pp 849K-850N and 870C-871P. [159] AB, pp 853R-854R and 857N-P. [160] AB, pp 892Q-893R, hearing on 26 July 2021. [161] AB, pp 53T-54M. [162] HKSAR v Lam Hing Chit [2021] 4 HKLRD 382, at [116]. [163] AB, p 81N-S. [164] AB, p 82C-E. [165] AB, pp 82F-S and 93Q-94A. [166] Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113, 132. [167] HKSAR v Ma Chun Kit, unrep., CACC 224/2020, 16 May 2025, at [66]-[70]. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACC 177/2021