HKSAR v. Tai Tin Ho, Zafar and Another

CACC 130/2023 & CAAR 4/2023, [2025] HKCA 1109

On Appeal From & On Review From [2023] HKCFI 1635

(Heard together)

CACC 130/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 130 OF 2023

(ON APPEAL FROM HCCC NO 334 OF 2020)

________________________

________________________

AND

CAAR 4/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 4 OF 2023

(ON REVIEW FROM HCCC NO 334 OF 2020)

________________________

________________________

(Heard together)

______________________________________

REASONS FOR JUDGMENT

______________________________________

Hon Macrae VP and M Poon JA (giving the Reasons for Judgment of the Court in both CACC 130/2023 and CAAR 4/2023):

A.  Introduction

1.The two applicants (who will be referred to by their trial designations as “D1” and “D2” respectively and collectively as “the applicants” in CACC 130/2023 and “the respondents” in CAAR 4/2023) were jointly indicted on one count of robbery contrary to section 10(1) and (2) of the Theft Ordinance, Cap 210. They were tried in the High Court before Campbell-Moffat J (“the judge”) and a jury. On 15 June 2023, they were both duly convicted. On 19 June 2023, D1 and D2 were sentenced to terms of 7½ years’ and 7 years’ imprisonment respectively.

2.In CACC 130/2023, D1 applied for leave to appeal against his conviction, and D2 applied for leave to appeal against conviction and sentence. However, D2 abandoned his application for leave to appeal against sentence at the commencement of the hearing before us and his appeal against sentence was formally dismissed.

3.On 7 July 2023, pursuant to section 81A of the Criminal Procedure Ordinance, Cap 221, the Secretary for Justice made an application for leave to review the sentences imposed on the respondents, contending that the sentences were both wrong in principle and manifestly inadequate. Leave was granted by Poon CJHC on 10 July 2023 and the application for review of sentence now becomes CAAR 4/2023.

4.At the appeal in CACC 130/2023, D1 appeared in person, while D2 was represented by counsel, Mr Marray in relation to conviction only. In CAAR 4/2023, counsel Mr Yuen[1] appeared for D1 and Mr Marray, for D2, as the respondents. Ms Chan, Senior Assistant Director of Public Prosecutions, appeared for the respondent in CACC 130/2023 and the applicant in CAAR 4/2023.

5.In CACC 130/2023, we refused leave to appeal in respect of D1 on all grounds and dismissed his appeal against conviction. Leave, however, was granted to D2 on Grounds 1 and 3 but his appeal against conviction was also dismissed.

6.In respect of CAAR 4/2023, we allowed the application for review of sentence. We quashed the original sentences imposed on D1 and D2 of 7½ years’ and 7 years’ imprisonment respectively and substituted in their place sentences of 10 years’ and 9½ years’ imprisonment on D1 and D2 respectively. We said we would hand down our reasons in due course, which we now do.

A.1.  The prosecution case

7.On 22 February 2020, Ms Kharanzhevish (“PW1”), a Russian visitor to Hong Kong, was robbed by two assailants inside Room 1801 of the Walden Hotel (“the Room”) in Wanchai, Hong Kong Island. She had answered the doorbell at about 9:30 pm, and one of the robbers then forcibly pushed the door against her head, causing her to fall to the floor and lose consciousness for a time. When she regained consciousness, she found herself lying on the floor with a tall thin man[2], allegedly D1, straddling her and another man of fat-built standing behind him. Both men were dressed in black, and were wearing gloves and masks. The fatter man, allegedly D2, had a bag with him. PW1 tried to scream but D1 covered her mouth with his hand and warned her not to make any sound. She was very frightened, particularly when she saw D2 take out a 60cm[3] machete knife and a pistol[4]. Upon the demand of D1, PW1 handed over a sum of HK$40,000 in cash from her bag to him[5]. D2 then used the machete to cut open a suitcase, which in fact belonged to a friend of hers. On seeing this, she decided to open her own suitcase and a further sum of US$6,000 was taken by the robbers, who then made their escape, having warned her that she should not say anything to anyone. PW1 reported the incident to the police the following day[6].

8.CCTV footage of the hotel showed that the two robbers had proceeded straight to the Room after exiting the lift on the 18^th floor of the hotel. Further CCTV footage was obtained from the shops in the vicinity of the hotel, of Causeway Bay and Jordan MTR stations, and of the taxi driven by PW2 who dropped two male passengers off at the material time at the Walden Hotel. Together with the two Octopus Cards retrieved from the applicants upon their arrests, D1 and D2 were identified as the perpetrators of the robbery with their whereabouts traceable at the relevant times. Further, call records of the mobile telephones seized from the applicants showed that they were in frequent contact with each other on the day of the offence. Both applicants were arrested on 23 March 2020.

A.2.  The defence case

9.D1 and D2 each elected not to testify, nor did they call any witnesses. The sole issue before the jury was identification and it was submitted on their behalf that the identification evidence was insufficient for the jury to be sure that D1 and D2 were the robbers as alleged.

A.3.  The summing-up

10.The jury were instructed that the main issue in the case was identification. The evidence for the prosecution was highlighted together with the respective positions of the prosecution and the applicants in relation to that evidence. The jury retired at 9:44 am on 15 June 2023 to consider their verdicts. At 2:23 pm on the same day, they posed a question. Since the jury question has assumed considerable significance in this appeal, we will set out the background to it and its content in detail.

11.The jury’s note (“the Jury’s Note”) was attached to a printed “Record of Written Note/Request from the jury during deliberation” (“the Record”)[7]. Two questions had originally been set out. The first question, however, was marked “crossed out by the Jury”, while the second question (“the Jury Question”) comprised three sentences, in the following terms:

“Some photos or videos of D2 TANG Kwok Wai in 2020 or on the day of arrest for Jury to compare his face. (“Sentence 1”)

We’d like some more evidence to show D2 is the fat guy sitting in the right of the Defendant Box. (“Sentence 2”)

Based on current evidence and footage, there is no clear still showing clearing (sic) D2’s face.” (“Sentence 3”)

12.On the top sheet of the Record, the judge gave handwritten directions to redact Sentence 3 after ticking the box “Court be re-convened and a copy of the Note be provided to each counsel” as follows[8]:

“The first question, which has been crossed out by the Jury, should be edited out.

The second question indicates the current thinking of the jury at the end. Edit this out and provide counsel with one actual question.”

13.After redacting Sentence 3 of the Jury Question[9], photocopies of a note showing Sentence 1 and Sentence 2 of the Jury Question only were shown to counsel[10]. After discussions with counsel, and in the absence of the jury, a typewritten answer was handed to the jury (“the Judge’s Answer”), without the jury being called back into court, essentially informing them there would be no more evidence and that they must try the case on the evidence already placed before them[11].

B.  CACC 130/2023

B.1.  D1 and D2’s appeal against conviction

B.1.1.  D1’s grounds of appeal and submissions

14.Some ten grounds of appeals were put forward by D1 in his letter, dated 10 November 2024. Since there were altogether four different sets of grounds of appeal from D1, including those set out in his Form XI Notice of Application for Leave to appeal against conviction, we sought to clarify that he was relying on the grounds of 10 November 2024. Nevertheless, we have examined the other grounds and have endeavoured to group the grounds and set them out intelligibly as follows:

(1)  D1’s trial counsel was flagrantly incompetent in conducting the trial on his behalf:

(i)  Counsel failed to produce a hotel invoice as alibi evidence;

(ii)  Counsel failed to cross-examine PW1 in accordance with his instructions on the following topics: that she said that she thought the suspects were hotel staff; that she thought Hong Kong was safe when there was in fact social unrest; that she claimed to have been knocked unconscious and yet suffered no injuries; that she claimed not to know the robbers yet opened the door without the anti-alarm lock in position; that no report was made to the police immediately after the alleged incident; and that instead of providing a direct answer to a particular question she said she was “not here to play word games”;

(iii)  Counsel should have highlighted the inferior quality of the CCTV evidence which purported to show the boarding of the taxi by the robbers;

(iv)  Counsel failed to make a submission of no case to answer on his behalf, and to cite case law and authorities during his closing speech; and

(v)  D1 observed that there was a debate between counsel and the judge at the close of the prosecution case which had not been translated to him. He suspected that it could also have a bearing on the issue of counsel’s incompetence.

(2)  As the allegation of robbery involved a pistol, the correct charge should have been ‘armed robbery’ rather than ‘robbery’;

(3)  The judge was biased in preventing defence counsel from cross-examining PW1 in respect of whether she came to Hong Kong for the purpose of prostitution;

(4)  The fact that D1 was involved in another kidnapping case had been widely publicised. This could have caused prejudice in the minds of the jurors;

(5)  The judge in her opening remarks to the jury disparagingly compared court procedures to a ball-game. The judge failed to alert the jury to the severity of sentence should he be convicted;

(6)  The jury’s question asking for more exhibits showed that they could not understand the judge’s directions in her summing-up;

(7)  The judge wrongly usurped the function of the jury by justifying the time difference between the various digital records;

(8)  The judge failed to give examples when she explained the presumption of innocence (which we have assumed was a reference to the drawing of inferences);

(9)  The judge should have stressed to the jury that the chain of evidence which provided the primary facts for inferences to be drawn was of inferior quality; and

(10)  The judge failed to stress that the lack of fibres, DNA and fingerprint evidence connecting him to one of the robbers was something which the jury should consider in his favour.

15.At the hearing, D1 made supplementary submissions in relation to the above grounds. He highlighted the fact that his criminal record showed that he was sentenced for a previous offence of conspiracy to rob, in which the amount involved was $7 million. He asked rhetorically why he would rob for a much lesser amount with a machete and a pistol involved in the present case.

B.1.2.  Reply of D1’s legal representatives to D1’s complaints

16.Mr Tang Siu Man, solicitor for D1 and Mr Bullet, counsel for D1 at the trial, both filed affidavits to the effect that D1’s final written instructions to them were dated 16 December 2022. That set of instructions was expressly stated to have superseded the previous two sets of instructions. Mr Bullet contended that since that was the state of his instructions at the time, he was unable to see how the receipt could afford D1 an alibi or assist his case, particularly when he declined to give evidence. Mr Bullet further contended that with such strong circumstantial evidence against D1, a submission of no case to answer would have been futile and, in any event, his closing address to the jury had already covered the issues of the CCTV evidence and the Octopus card. The jury were specifically reminded to exercise great care when dealing with identification evidence.

B.1.3.  D2’s grounds of appeal and submissions

17.Mr Marray originally advanced three perfected grounds of appeal, dated 6 December 2023, on D2’s behalf. By a letter dated 5 March 2025, the Court was informed that Ground 2 would no longer be pursued. Ground 1 averred that there was a material irregularity in the conduct of the trial in that the judge did not show the entire Jury Question to counsel. Ground 3 complained that the jury were not called back into the court to receive the answer to their question, but were simply given answers in writing by the judge instead.

18.It was submitted that the redacted Sentence 3 of the Jury Question clearly required further directions on identification since what was troubling the jury was that there was “no clear still (shot)” of the fatter man’s face. The failure to reveal that sentence to the jury was tantamount to the judge receiving a private or secret communication from the jury and concealing or withholding information from counsel, for which proposition Mr Marray relied on R v Gorman[12], HKSAR v Leung Wai Hung[13], R v APJ[14], Ahmed Qasem and Another v R[15], Ramstead v The Queen[16] and The Queen v Phillipp George Black[17]. Further, such redaction of the jury’s communication had the effect of watering down the Jury Question into a mere request for more evidence. Had the redacted part of the Jury Question been shown to and fully addressed by counsel, the judge could have been advised to give further directions, which could have materially impacted on the case against D2. As a result, D2’s conviction was unsafe and unsatisfactory.

19.The contention behind Ground 3 was that by giving the jury a written reply to their question instead of calling them back into open court to receive the Judge’s Answer, the principle of open and transparent justice was undermined: see Gorman. Mr Marray concluded that the two grounds advanced, whether singly or cumulatively, amounted to a material irregularity, for which the application of the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap 221 would not be appropriate.

B.1.4.  The respondent’s reply

B.1.4.1.  Re: D1

20.Ms Chan, on behalf of the respondent, contended that counsel had properly acted in accordance with D1’s instructions. She relied on the authorities of R v Birks[18] and Chong Ching Yuen v HKSAR[19] to submit that counsel had a wide discretion as to what lines of cross-examination and argument to pursue, and whether to make or not make a submission of no case to answer; and D1 was bound by his counsel’s conduct of the proceedings. In the present case, D1 had failed to show any error on counsel’s part or to demonstrate that he had received less than a fair trial.

21.Ms Chan also submitted that all grounds of appeal were unfounded. In particular, she pointed out that the judge had explained why she disallowed counsel to cross-examine PW1 as to her alleged prostitution[20], yet counsel was allowed to come very close to that issue by asking whether the robbers were among the number of men she had earlier met in her room[21]. In response to the publicity of D1’s alleged involvement in another case, Ms Chan responded that it was pure speculation that the jury might have known anything about the matter. As for the discrepancies in time stamps in the digital evidence, the judge was only trying to guide the jury to use their common sense in considering the evidence.

B.1.4.2.  Re: D2

22.In respect of Ground 1, Ms Chan argued that reading the three sentences together, Sentence 3 was effectively asking for more evidence, which the jury were not entitled to receive at that stage of proceedings. The redaction did not amount to an irregularity and, even if it did, it was hardly material.

23.As for Ground 3, Ms Chan submitted that the judge had discussed with counsel in open court her proposed answer to the Jury Question and counsel were told she would give a written reply instead of calling them back to the court. This was an alternative way of answering the Jury Question in court, which had been recognised in R v Lamb[22], as cited in Leung Wai Hung[23]; furthermore, no counsel demurred at the proposal. There was, accordingly, no violation of the principle of open and transparent justice.

C.  Discussion (CACC 130/2023)

24.Both D1 and D2 were arrested a month after the alleged offence had occurred. At the time, both of them were in possession of their respective Octopus cards showing that the cards had been used in Jordan and Causeway Bay MTR stations shortly before the robbery. Though CCTV footage of the hotel and shops in the vicinity of the hotel did not show the faces of the robbers clearly, an image of two men resembling the two applicants outside a bakery near Jordan MTR station shortly before the relevant Octopus cards were used to travel from Jordan to Causeway Bay station was the most damaging. Further evidence against D1 was that a jacket matching one worn by one of the culprits at the robbery was found in his home; and his mobile telephone contained a photograph of a machete[24], which was identified by PW1 as similar to the one held by one of the assailants[25].

25.It was against this background of evidence that we considered D1’s grounds of appeal. At the hearing of the appeal, we made enquiries with D1 about his last written instructions dated 16 December 2022, exhibited to the affidavit of his trial solicitor Mr Tang, and specifically stated to supersede any of his previous instructions. In that set of instructions, he had said that “because it was too long time ago from the date of incident to present, I have forgotten the events of that day (namely, 22 February 2020)”. When questioned about this statement, D1 claimed that it was possible that the signature on this document was forged and, therefore, these latest instructions did not supersede the previous set of instructions, dated 6 May 2022. He stressed that his instructions were not that he had forgotten about the events of that day, but rather that he and D2 were in the Room to call upon the prostitute but there was a quarrel about the price of her services and they left. D1 complained that there was a dereliction of counsel’s duty in not putting this defence as instructed.

26.As pointed out by the respondent, these two lines of defence were not compatible and counsel would have readily understood the difficulty of advancing them both before the jury. One line of defence challenged identification and alleged that the prosecution case was one of mistaken identity: the other line of defence acknowledged that D1 had been in the Room and visited PW1 during which they had a quarrel about money, in which case the question of identification did not arise. However, his case was run solely on identification and throughout the trial D1 never raised the latter line of defence either by way of cross-examination or evidence. We were satisfied that the denial of the existence of the 16 December 2022 set of instructions was an afterthought on D1’s part to bolster his allegation against counsel for not putting the earlier 6 May 2022 instructions, which were said to be superseded. By so doing and confirming his case to this Court when we sought to unravel this matter, he placed himself at that scene rendering his allegation against counsel for not exhibiting his hotel voucher as a piece of alibi evidence irrelevant and otiose.

27.His complaints against counsel for not sufficiently cross-examining PW1 in order to discredit her evidence about what happened in the Room also failed for two reasons. Firstly, counsel ordinarily have a wide discretion as to what questions to ask a witness and the manner in which proceedings are conducted, which must include whether to make a submission of no case to answer, and his decision is binding on a defendant: see Birks. Secondly, the judge had already directed the jury that they had to be sure that the crime of robbery was carried out, and if they were so satisfied then they had to consider whether one of the people involved was D1, and the other was D2[26]. In convicting both defendants, there could not have been any doubt in the jury’s mind that what happened in the Room was a robbery as testified by PW1. Further, by virtue of D1’s stance on appeal, which obviously placed himself at the scene at some stage, his other grounds relating to identification necessarily fell away. In any event, the poor quality of the images for the purpose of identification was highlighted for the jury by the judge[27].

28.D1 contended that there might have been something to support his allegation of incompetence of counsel in the discussion between his counsel and the judge before closing addresses, but maintained that he had no idea what it was about, since there had been no interpretation provided to him of the discussion. In light of this complaint, we caused a check to be made of the judge’s clerk’s log. All it showed was that, at the relevant time, Mr Bullet had applied to remove the CCTV time on the exhibit index on the basis that the time had not been proved; however, the judge said this was a matter for the jury. D1’s suspicions as to the discussions between the judge and counsel were entirely unfounded.

29.In relation to the indictment, the count of robbery was correctly laid. Unlike burglary, which carries a maximum of 14 years’ imprisonment, and which can take an aggravated form as aggravated burglary with a maximum sentence of life imprisonment, all types of robberies are charged under the offence of robbery, which carries a maximum sentence of life imprisonment. A charge or count of armed robbery is not one known to the law.

30.D1 complained that it was improper for the judge to use colourful language in her introductory remarks to the jury after empanelment. Whilst the comments complained of might, on one view, have lacked a certain solemnity, they did not defeat the objective of the judge’s introductory remarks, which were for the purpose of “setting the tone, putting jurors at ease, providing them with core information about the process and about practical arrangements and warning them of the do’s and don’ts”: see the Guide to Jury Trials, 2016, published by the Hong Kong Judicial Institute. More importantly, the judge told the jury to pay no attention to related press or media reports, whether about the case or the defendants, and informed them of the prohibition against conducting research about the case or any person or issue connected with the case. It would have been very unwise for the judge to bring up the fact of D1’s other case, only to then ask them to banish it from their minds. It would have been equally wrong to influence the jury by informing them of the serious consequences faced by a defendant in the event of conviction, since the jury’s task was to decide the case only on the evidence presented before them without considering such irrelevant or emotive matters.

31.Complaint has been made that the judge wrongly refused cross-examination as to PW1’s alleged prostitution. The judge explained, when counsel was cross-examining on behalf of D2, that she failed to see how a certain profession could possibly undermine credibility. The judge told counsel that he would need to have a proper basis for putting such cross-examination[28]. In any event, counsel was allowed to come close to the issue by asking whether during her three days’ stay in the Room she had gone on the ‘Tinder’ dating application and met no less than thirty men. When the suggestion that the robbers could have been among the thirty men who had allegedly visited her in the Room was vaguely floated with the witness by D2’s counsel, PW1 firmly responded, “No”[29].

32.D1 argued that the judge should have given an example to illustrate ‘the presumption of innocence’, by which we assume he meant the drawing of inferences. Whilst in some instances a judge will illustrate, by way of example, what is meant by drawing the only reasonable inference from a set of facts, this case rested on identification and there was no obligation on the judge to give any direction or illustration on the drawing of inferences.

33.D1’s final ground concerned the Jury Question, which we shall deal with together with D2’s grounds, since the issue relates more to him than to D1. Accordingly, we turn to D2’s grounds of appeal.

34.The case of Gorman, referred to by Mr Marray, is the leading authority in respect of the extent to which a judge should disclose communications from a jury which has retired to consider its verdict. The Lord Chief Justice of England and Wales held[30]:

“First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court. …

Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication.

Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures, …then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have imparted.” (Emphasis added)

35.Mr Marray further relied on the authority of Phillipp George Black where the Court of Appeal of the Supreme Court of Victoria found that the failure of the trial judge to disclose the jury’s questions to counsel on the basis that she found that it “indicates material in the jurors’ minds during the deliberation in this particular instance”[31] had caused a substantial miscarriage of justice. In that case, the jury questions were not provided to counsel. The trial judge merely told counsel the subject-matter of the jury notes and then read out the re-directions she proposed to deal with it, before giving them to the jury. The trial judge further refused the request of the prosecutor to read the jury’s questions into the record. The Court of Appeal found that it was not sufficient to identify the subject-matter of the questions in general terms and what was puzzling the jury was “the very matter that the parties were entitled to learn and deal with”[32].

36.R v Lee Yi Choi[33]was a murder appeal in this jurisdiction, which was decided before Gorman. To understand the background to one of the grounds of appeal, we may refer to the following part of the judgment, which summarises what happened after the jury retired to deliberate[34]:

“At the conclusion of the summing-up the jury retired at 11:07 am. At 2:55 pm the Court resumed and the trial judge indicated that he had had a message from the jury showing them to have difficulty in reaching a unanimous decision.

He then went on to give them a direction in relation to unanimous verdicts to which no exception is taken. The jury retired again at 2:57 pm.

At 4:17 pm the Court again resumed and the trial judge said this:

‘Members of the jury, the message I have received is that you have reached a decision but that you are unable to be unanimous about a certain matter.’

He gave them further directions as to a unanimous verdict at the conclusion of which the Foreman of the jury said:

‘My Lord, we have reached a decision on one point. Really I suppose we should say we are unanimous now.’

The jury retired at 4:20 pm and at 4:50 pm returned to deliver their verdict.

After the verdict had been rendered Mr Duckett, who then appeared for the Crown, asked that the questions from the jury should be incorporated in the record and stated that counsel had not seen what those questions were. To this the trial judge replied:

‘Oh, I didn’t either.’

He went on, in answer to Mr Duckett, to state that no written questions were shown to him and continued:

‘I was informed of what the jury’s problem was and I decided that I would come into court and ask them because from the indication it seemed that if I got any further information it might have been helpful.’ ”

37.The Court found that what had occurred was a material irregularity but, since the judge had given unexceptional directions in the summing-up as well as on the two occasions when he found it necessary to address the jury, it concluded that there was “no miscarriage of justice and (it) would in any event have applied the proviso in respect of this ground”[35]. The appeal was ultimately allowed, but on other grounds.

38.It should be noted that in Lee Yi Choi no one ever saw any jury note; not even the judge. The information was presumably passed on to the judge by the jury usher and would have been, therefore, second-hand information. The judge acted on what he was told by the jury usher. The situation was undesirable since “counsel were never aware of the nature of the questions from the jury nor of the nature of the communication made by whoever carried the jury’s message to the judge; the accused did not know nor was counsel in a position to comment”[36]. The Court of Appeal did not have any note to act on or consider, yet having decided that there was a material irregularity it found that that there was no miscarriage of justice and the proviso was applied.

39.It is instructive to refer to two other cases considered by the Court in Lee Yi Choi[37]:

“…In Lamb where, after the jury had retired, a message was sent through the jury bailiff that the jury were unable to reach a unanimous verdict, the Clerk of the Court, acting upon the direction of the Judge, went into the jury room and instructed the jury that they must continue to try to reach a unanimous verdict. The English Court of Appeal thought it right that the proviso should be applied. The irregularity here is not so serious as was the one in Lamb nor is it as serious as that in Man Ching Ip[38] where the jury had, without consultation with counsel, been given a volume of The Laws and it was impossible to know which portions of the material Ordinance they had perused. …”

40.In our judgment, the present appeal is distinguishable from the circumstances in Lee Yi Choi. We had the un-redacted Jury Question before us and we were able to make a full assessment of it to determine whether the redaction of the Jury Question had caused a miscarriage of justice. The Jury Question had to be taken as a whole to find out what was puzzling the jury (or a juror) in order to decide how they might be assisted. Accordingly, the redacted sentence should not be taken out of context. In a case where English is not the first language of most jurors, the question raised by the jury “may not always be expressed with exemplary grammar and syntax”[39]. However, we were of the view that the addition of the following words in italics would make better sense to the Jury Question:

“Some photos or videos of D2 TANG Kwok Wai in 2020 or on the day of arrest for Jury to compare his face.

We’d like some more evidence to show D2 is the fat guy sitting in the right of the Defendant Box. [Because]

Based on current evidence and footage, [we think] there is no clear still showing clear[ly]ing(sic) D2’s face.”

41.With the addition of the words in italics, it can be seen that the jury were asking for a clear still photograph showing the face of the fatter robber in order to enable them to make, in effect, a dock identification. Sentence 3 revealed their concern and the reason they were asking for more photographs (or videos). That would also seem to have been the way the judge looked at it. However, it should be remembered that the judge, in her summing-up, had already pointed out the shortcomings of the jury making their own identification[40]:

“Although you have been able to look at the defendant in the courtroom in good light, at a relatively close distance, please remember that none of you know the defendants; did not know them before, so your ability to identify them is not based on any previous knowledge, or having seen them in different situations. And it is possible that the defendants’ appearance now may have changed since the time of the incident.”

42.Furthermore, at the commencement of her summing-up, the judge had told the jury in unambiguous terms that they must have regard to the whole of the evidence before them so as to form their own view about which evidence was reliable and which was not[41]. In particular, she said[42]:

“…you must decide this case only upon that evidence which has been placed before you. There will be no more. You must not speculate or guess about what evidence there might have been…”

She reminded the jury of the burden of proof, and that they had to be sure before they could return a verdict of guilty[43].

43.The judge, by her typewritten answer to the Jury Question, effectively reiterated what the jury had already been told[44]:

“You have taken an oath or sworn an affirmation to return a verdict according to the evidence placed before you.

You have access to all of the evidence including any CCTV footage and photographic evidence. There is no more.”

44.We further considered what other answers the judge could realistically have provided to the jury had the whole Jury Question been provided to counsel. Mr Marray has argued that had he been counsel and known the contents of the full question, he would have urged the judge: (1) to clarify with the jury what they meant; and (2) to give more emphatic directions on identification. But in our view, it was clear from the Jury Question in its entirety what the jury’s concern was. No further evidence could at that stage be given to them and the judge had already warned them of the dangers of making a dock identification themselves. In the circumstances, we do not see what else the judge could have properly done or said. The summing-up was entirely clear about the dangers of misidentification, there could be no further evidence and, in the circumstances, we found there was no material prejudice caused to the applicants by the judge dealing with the Jury Question as she did.

45.As for Ground 3, Mr Marray submitted that the judge should have called the jury back into open court to answer the Jury Question, instead of merely giving them a written reply. The respondent relied on the following passage in Lamb, as recited in Leung Wai Hung, at [15], to support her contention that it is not always necessary to call the jury back into court to answer a question, provided that the reply to the jury was made known in public before delivery:

“The practice should be that, on the Court being informed by the jury bailiff of the jury’s wish to make a request of the Court or to communicate something to the Court, the request or communication should either be delivered in writing to the Court and the contents and any reply to be delivered through the bailiff, made known in public in Court before delivery, or, the jury should be brought back into Court to make the request themselves and the Judge should answer their request in Court.” (Emphasis added)

46.The rationale of open justice was demonstrated in the case of Leung Wai Hung. There the judge had received two requests from the jury during their deliberations. The first was for a copy of the summing-up; which the judge refused. The second request was for some telephone records; which were not part of the evidence. The judge asked the jury usher to explain to the jury that these were not part of the evidence and they simply had to take the numbers from the Admitted Facts. Counsel were only told of such communications afterwards. Not only was there no jury note, there was no reply from the judge in open court either, and nor was there any written reply given to the jury. In relation to the responses by the judge made to the jury through the jury usher, Stock JA (as he then was) stated:

“15. …There was a material irregularity because there was a direction from the Judge to the jury that was relevant to the case itself which was not in open court and which in addition was made orally through a third person, giving rise, as such communications always do, to the risk of inexactitude and of informal remarks passing between that third party and the jury, or simply of the parties not knowing exactly what has been said by the third party or by the jury upon communication of message. …

16. …that the Judge’s response was not communicated in open court to the jury; that it was communicated as far as we know other than in writing, through a third party, the usher – a course that always leaves open the possibility of inexact communication; …” (Emphasis added)

47.In the present case, the proposed reply was typed up and the contents made known and discussed with counsel in open court before it was delivered to the jury. Defence counsel for D2 in fact remarked that the terms of the proposed written reply were “flawless”[45]. Any opportunity for inexact communication or possible misunderstanding was eliminated. Moreover, before sending the jury out to consider their verdicts, the jury were told that if they were to send a “‘Please explain’ something again type of note”, it would take a little time before it could be answered because counsel would have to be consulted. The judge never told the jury what means she would employ to reply to their written question and they would not necessarily have expected the court to be reconvened to deal with their question. In any event, as in the case of Lee Yi Choi, after being sent the written reply the jury did not ask for any further guidance and they were able to return their verdicts at 5:14 pm.

48.We nevertheless take the opportunity to reiterate the relevant paragraphs of the Guide to Jury Trials, 2016:

“Upon receipt of a note from the jury

• Inform counsel

• Do not debate with the jury

24.13 If a note is sent by the jury to the judge, counsel must forthwith be informed. There may be matters which do not require the recall of the jury – for example, the jury might ask for an exhibit which they have forgotten to take with them or which otherwise they wish to be sent to the room, an item of clothing perhaps; and in such a case the judge might feel it appropriate to give authority without further ado.

24.14 In any other instance, where further directions or assistance will be needed, the judge should ask counsel to return forthwith to court. The accused must be present when the court reconvenes. In the absence of the jury, the content of the jury’s note should be read out by the judge and counsel asked to make such observations as they wish. The jury must then be recalled to court and the judge will then deliver whatever direction or other assistance he deems appropriate in light of submissions which have been made.

24.15 What the judge should not do is to engage upon a discussion with the jury about the problem which it has encountered.

…

Questions from the jury

• Tell the jury of the right

• Notify counsel of questions

• Avoid off-the-cuff answers

• No dialogue with jury

• Remind them of other evidence where necessary

24.28 Questions from the jury to the judge occur – if they occur at all – most frequently after the jury’s retirement to deliberate though this part of the Guide applies equally to questions coming from the jury before that stage.

24.29 Questions might be asked about the evidence or about the law and the trial judge is under a duty to ensure that the jurors receive the assistance they require to discharge their task properly.

24.30 Jurors should be told, towards the close of the summing up, of the right to ask questions but should be instructed that a question must not be asked of court officers but should be asked directly of the judge by a note handed to the court officer, namely, the usher.

24.31 Unless it is a purely administrative matter, counsel should always be given an opportunity before the jury is called back into court, to make submissions as to the appropriate answer. The judge should read out the question in open court. He should not paraphrase the question or parts of it. The judge should not however disclose a question or part of a question which reveals the deliberative process e.g. provisional voting figures.

24.32 Where the judge deals with a purely administrative matter, such as a request for special dietary provision or that a call be made to a family member by a court official, there is no need for counsel to be recalled but the judge should, in open court when the court next convenes, tell counsel of the request and of the answer which the judge provided.

24.33 It is generally dangerous for the judge to provide the jury with an answer without first carefully framing it. This is especially so where it is a direction of law, since experience shows that an ex tempore statement or summary, whether it is a reminder or clarification of a direction earlier given, tends to be imprecise or at variance with an earlier direction. It is best for the judge first to write out reminders or clarification as to the law and read out to counsel what he proposes to say.

24.34 If the question itself requires clarification, the jury should be told by the judge, without him engaging in a dialogue with the jury, what clarification is needed and then be asked to reformulate the question in writing.

24.35 The judge should give clear and succinct answers to questions raised.

24.36 Once he has given the answer, he must inquire of the jury whether the answer covers the concern; making it clear to the jury that if it does not, they should please first discuss the matter amongst themselves in the retirement room next to the court and formulate the clarification they seek but that they should take care, in the clarification communicated to the court, not to reveal any discussions or preliminary voting trends.

24.37 Asking the jury to express orally what it is they are unclear about gives rise to the danger of a developing discussion which is not appropriate to the process; and in any event a question from the judge and an immediate answer from foreman is the foreman’s request for clarification and not necessarily that of the rest of the jury.

24.38 If, however, the foreman says that the answer given covers the jury’s concern, the judge is entitled to act on that representation, unless he sees expressions of dissent from the rest of the jury.

24.39 Where the request is for repetition of part of the evidence, the judge may either read from his notes or, if there is one, from the transcript. But, again, before he does so he must inform counsel, in the absence of the jury, what it is he intends to say and it is open to counsel to ask the judge to read out other evidence which bears upon the evidence which the jury has asked to be read out. Or the judge may himself decide to read out other relevant evidence if he decides that it bears upon the evidence requested to be read. The judge is not duty-bound to accede to counsel’s request for other evidence to be read; it is a question for the judge to decide whether it bears upon the evidence requested by the jury.”

49.In Leung Wai Hung, the Court of Appeal held:

“14. This is not to say that every communication, even the most procedurally banal, must be articulated in open court and it is also not to say that it is every breach of the rule, where the rule applies, that will result in the quashing of a conviction. …

‘In R v Green … It has been recognised that not every failure to comply with the rule should result in a conviction being set aside; in a number of cases, of which R v Furlong (1950) 34 Cr App R 79; R v Barnowski [1969] SASR 387; R v Zamparutti [1973] 2 NSWLR 151 and R v Lamb (1974) 59 Cr App R 196 are instances, the general proviso has been applied empowering an appellate court to dismiss an appeal on the ground that no miscarriage of justice has actually occurred.’ ”

50.We did not find the judge’s redaction and the failure to call the jury back into court to answer the Jury Question a material irregularity, even if it might be said that the judge dealt with the matter in an irregular manner. But, even if it had been a material irregularity, we would have had no hesitation in applying the proviso.

51.It was for these reasons that the application for leave to appeal against conviction by D1 was refused and his appeal dismissed; while the application for leave to appeal by D2 was granted but his appeal dismissed.

D.  CAAR 4/2023

D.1.  The application

52.The sentences passed on D1 and D2 were 7½ years’ and 7 years’ imprisonment respectively. Ms Chan has argued that the starting points adopted by the judge and the resulting sentences were manifestly inadequate and wrong in principle. She pointed out that there were a number of serious aggravating features involved in what was an invasion of private premises using significant physical violence. In particular:

(i)  the robbery was well-planned and premeditated;

(ii)  the victim had been targeted in advance;

(iii)  the victim was young, female and alone in a hotel room;

(iv)  there were two robbers acting in concert;

(v)  the robbers were armed not only with a machete but a firearm, which was shown to the victim;

(vi)  the victim was knocked unconscious by the forceful manner in which the robbers entered the room;

(vii)  the victim was physically restrained on the floor and a hand forcibly placed over her mouth;

(viii)  the machete was used to cut open a suitcase in front of the victim;

(ix)  the victim was frightened and believed she would be physically harmed if she did not comply with the robbers’ instructions; and

(x)  a considerable amount of money was stolen from the victim and never recovered.

53.Ms Chan pointed out that what is extraordinary about the judge’s reasons for sentence is that she contented herself by reference only to the guidelines on armed robberies in Mo Kwong-sang v The Queen[46], notwithstanding that Roberts CJ had made clear in the Court’s judgment[47]:

“By the word ‘armed’ in this judgment, we are referring to knives and other dangerous weapons, but not to firearms for which severer sentences are normally imposed”. (Emphasis added)

Indeed, Holding 2 of the headnote to the case itself makes clear that the guidelines are intended to apply to “an ordinary case of armed robbery where the accused carried a knife or other dangerous weapon (excluding firearms) which he displayed to his victim…”

54.Moreover, the only other authorities to which the judge referred in sentencing were HKSAR v Yang Xingyun[48], which, albeit a bad robbery carried out in a hotel room, did not involve a firearm or, indeed, any dangerous weapon, and HKSAR v Zhang Wei[49], which involved the robbery of a prostitute but also did not involve the use of a firearm.

55.Ms Chan argued that the judge had ignored a long line of authority which suggested that the starting point for sentences for robbery using even an imitation firearm should be 10 years’ imprisonment: see, in particular, R v Yu Tai Wing[50]; Secretary for Justice v Lee Chun Ho Jeef[51]. She further submitted that given the sheer number of aggravating factors in the present case, the sentences on both D1 and D2 should have been in excess of 10 years’ imprisonment after trial.

D.2.  The respondents’ submissions

56.Both Mr Yuen for D1 and Mr Marray for D2 (now the respondents) submitted that the robbery was not committed with a firearm in a public place, where innocent people might be caught up in the drama of the incident, particularly if the police became involved using their own firearms. The judge found that the pistol “appears to have been shown momentarily and was not used or displayed in a manner which suggested it was about to be used”[52]. Moreover, the present robbery was not as serious as the facts revealed in both Yang Xingyun and Zhang Wei, which concerned robberies of exceptional violence on lone females; while the firearms in Yu Tai Wing and Lee Chun Ho Jeef played a central role in the respective robberies.

E.  Discussion (CAAR 4/2023)

57.The judge’s adoption of 7 years’ imprisonment after trial would have been appropriate in respect of a robbery by a single assailant in private premises (including a hotel room) at night using physical violence and displaying a knife or other dangerous weapon: see Mo Kwong-sang. Here, however, there were two robbers acting in concert in an obviously pre-planned robbery, a lone female victim who must have been terrified to be concussed and then find a man straddling her on the floor when she regained consciousness, a machete being used and a firearm being displayed in order to steal the equivalent of about HK$86,000, which was never recovered.

58.The authority of Mo Kwong-sang plainly does not concern robberies where firearms are used or displayed and we are puzzled why the relevant authorities, in particular Lee Chun Ho Jeef, which was specifically and correctly brought to the judge’s attention by prosecuting counsel[53], were simply disregarded by her. Indeed, the judge indicated to counsel during mitigation, inexplicably and without any valid reason being given, “the two (the machete and the pistol) go together”[54] and “I’m not going to add some more for the pistol”[55]. With respect, had the judge followed the authority she was actually referred to and provided with, then she should not have considered a starting point of less than 10 years’ imprisonment after trial.

59.Whilst judges are always free to depart from sentencing guidelines with good reasons being given as to why they are not being followed in a particular case, an arbitrary departure from guidelines for no, or no valid, reason at all does not foster the objective of consistency in sentencing, nor does it serve the public interest in seeing just and appropriate sentences being passed. Rather, such a departure risks causing a sense of injustice in other defendants who commit similar offences with firearms and it is unfair to those, like the respondents, whose sentences are then made the subject of inevitable review.

60.In our judgment, the starting points for sentence in the case of both respondents, given the circumstances of this case, were manifestly inadequate and, insofar as the judge purported to disregard the impact of the carrying and displaying of a firearm at the time of, and in order to commit, the robbery, was wrong in principle as well. In our judgment, the sentences on both the respondents should have been 10 years’ imprisonment after trial.

61.In the case of D1, the judge acknowledged that he had committed two previous offences of conspiracy to rob, for which he had received 5 years’ and 32 months’ imprisonment respectively, both sentences being passed in the District Court. He had other previous convictions revealing a violent disposition as well as a contempt for authority; and, furthermore, he had committed still other offences whilst on bail for the present offence. We would have enhanced his sentence by 9 months’ imprisonment for these factors, resulting in a sentence of 10 years and 9 months’ imprisonment.

62.However, we are alive to the fact that this is a review of sentence and such a sentence as ought to have been passed would be substantially higher than the one actually passed by the judge. The Courts have long accepted that a slight discount can properly be considered where the sentence to be imposed on review is greatly in excess of the original sentence: see Attorney General v Wong Kwok-wai[56]; Secretary for Justice v Tseung Mang Ka[57]; Secretary for Justice v Wong Hong Leung[58]. In the circumstances of what would be an increase of well over 30% in the case of D1, we are prepared to make a slight reduction and leave the sentence at 10 years’ imprisonment.

63.In the case of D2, the considerations in respect of his criminal record and the commission of further offences whilst on bail for this offence do not arise. However, the proposed starting point in his case also represents a substantial increase on his original sentence. We are again prepared to give a small discount, given that this is an application for review of sentence brought about because of the inadequacy of the original sentence passed. We accordingly reduce the sentence he should have received to 9½ years’ imprisonment.

64.It was for these reasons that the applications for review of sentence were allowed. The result is that the sentence on D1 will be increased from 7½ years’ imprisonment to 10 years’ imprisonment. The sentence on D2 will be increased from 7 years’ imprisonment to 9½ years’ imprisonment.

Ms Denise Chan SADPP, of the Department of Justice, for the Respondent in CACC 130/2023 and the Applicant in CAAR 4/2023

Mr Bernard Yuen, instructed by Chiu, Szeto & Cheng, assigned by the Director of Legal Aid for the 1^st Respondent in CAAR 4/2023

Mr John Marray, instructed by Robertsons, assigned by the Director of Legal Aid, for the 2^nd Applicant in CACC 130/2023 and the 2^nd Respondent in CAAR 4/2023

The 1^st Applicant in CACC 130/2023 appeared in person