HKSAR v. Chan Ho Kay

CACC000375/1999

CACC 375/1999

HEADNOTE

Criminal law - procedure - application for leave to appeal - lengthy perfected grounds of appeal - adopted and developed in written argument - abandonment of all grounds except one - counsel's failure to communicate decision not to argue grounds leading to wasted time in preparation on the part of court and Respondent - notice to be given where grounds of appeal are not being pursued.

CACC 375/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 375OF 1999

(ON APPEAL FROM HCCC 330 OF 1998)

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Coram: Hon. Stuart-Moore VP, Leong & Wong JJA

Date of Hearing: 29 March 2000

Date of Judgment: 29 March 2000

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J U D G M E N T

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

Introduction

1. On 22 June 1999, the Applicant, then aged 24, was found guilty, following a 15-day trial before V. Bokhary J and a jury, on charges of murder (count 2) and wounding with intent contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212 (count 1). A plea of guilty to a further count of wounding with intent was tendered by the Applicant just before the trial commenced. Both wounding offences were alleged to have occurred at the Applicant's residence, a village house in the Yuen Long area which appears to have been in the nature of a drug addicts' commune. The Applicant now seeks leave to appeal against his conviction for murder.

Prosecution's Case

2. The prosecution's case against the Applicant on count 2 was that he murdered Chan Cheuk-lun (the victim) in a joint enterprise with a man in his early forties, Chung Wing-ching ("Chung"), by burning the victim to death. The evidence of the Applicant's involvement was largely circumstantial. The Applicant stood his trial alone because, by the commencement of the trial, Chung had died from natural causes.

3. The prosecution alleged that it was the Applicant who wounded the victim three days earlier (count 1) with the use of a baseball bat. The motive for this act of extreme violence and for the later murder of the victim was said to be that the Applicant had fallen out with the victim over the Applicant's girlfriend. Additionally, to make matters worse, the Applicant blamed the victim for trying to steal from him. He sought vengeance by beating the victim, together with others who lived at the same premises. After this, the victim was tied up, gagged and injected with heroin to prevent him from being seen by others in his injured state and to keep him sedated. The victim, a drug addict himself, was kept prisoner in this way for some considerable time before being driven in a Honda Civic car by Chung, with the Applicant as a passenger in the car, to an isolated refuse collection point in Pak Sha Tsuen. There, the victim was doused with paint thinner, set alight and left for dead.

4. Several areas of the evidence were not disputed. It was accepted by the defence that the victim was burnt to death after inflammable liquid had been poured over him and that the Applicant was present at the time this was done. It was also accepted that the Applicant wounded the victim in the earlier incident a few days before by using a baseball bat with which to hit the victim.

Defence Case

5. It was the defence case in relation to count 1 that, while the Applicant had wounded the victim, there had been no intent on his part to cause grievous bodily harm. So far as count 2 was concerned, it was the Applicant's case that he played no part in setting the victim alight and that he had no idea that Chung was going to do so.

6. The Applicant's case on count 1 was somewhat far-fetched insofar as any lack of intent on his part was concerned. The victim had been extensively beaten with a baseball bat leaving him lacerated and deeply bruised to the head, neck and left hand. The internal head injuries were described as moderate to severe.

7. The burns later suffered by the victim left his body with third degree burns covering 98% of the body surface. He died from these injuries 20 hours later. Only the soles of the victim's feet were spared. Plainly, those responsible for this merciless act of killing were guilty of murder, and the only real issue for the jury's consideration was whether the prosecution had established the Applicant's participation in the act of setting the victim on fire.

Late abandonment of appeal grounds

8. At the outset of his submissions, Mr Lloyd, appearing on behalf of the Applicant, said that he would not be pursuing the first four grounds in the Perfected Grounds of Appeal. These grounds attacked some of the directions given by the judge to the jury. We pause here to say that, while we do not expect worthless grounds as these were, and as Mr Lloyd now accepts they were, to be pursued, we do expect to be accorded the courtesy of being informed in advance of the abandonment of lengthy grounds where there has been, as in the present case, ample time in which to give proper notice. The court's time and the Respondent's time have been considerably wasted in preparing for what were believed to be lengthy submissions that were proposed and set out in the four grounds now abandoned.

9. We express the hope that this kind of irresponsible attitude will not be repeated. It is simply not good enough for counsel, as Mr Lloyd did, to stand up and glibly announce "I thought it could be dealt with quite easily this morning". So it can be, but this ignores the vast amount of work that has to be done by the Respondent as well as by the court when counsel keeps to himself the fact that he does not propose to argue the extensive grounds set out in the papers. Mr Lloyd's written argument was submitted to the court eleven days ago and they clearly expressed an intention to adopt the perfected grounds of appeal which were settled three months ago.

Remaining ground of appeal

10. Mr Lloyd went on to say that he now proposed to rely upon the fifth and final ground of the perfected grounds of appeal which simply alleged that the conviction for murder was unsafe and unsatisfactory. He submitted that the court should be left feeling that a lurking doubt existed as to the murder conviction because there was, he argued, insufficient evidence to prove the Applicant's participation in the murder. For the purposes of considering this ground, we need to look at the case against the Applicant in a little detail.

11. The way the judge directed the jury on joint enterprise was as follows:

"It is the law that when two or more persons embark on a joint enterprise or a common design, each is liable for the acts done in pursuance of that joint enterprise or common design. That includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise. However, if a participant in the venture goes beyond what has been expressly or tacitly agreed as part of the joint enterprise or common design, then the other participant or participants are not liable for the consequences of such unauthorised acts. It is for you the jury to decide whether the thing done was surely part of the joint enterprise or common design, or whether it was or may have been an unauthorised act and therefore outside the scope of the joint enterprise or common design.

Let me now give you this direction as to how the law of joint enterprise or common design works in the present case. If two persons are acting jointly in setting a person on fire with the intent to kill him or at least cause him really serious injury, then it matters not which of them performs the acts by which that is ultimately carried out. You see the position is this: where two or more persons take part in a joint enterprise or common design to set the victim on fire with such intention, each sharing a common intention to engage in the crime, and each prepared to assist if and as the need arises, then both are equally guilty.

So where they both have the necessary intent, a man who was there supporting or encouraging the other person when that person was setting another on fire, standing by, thus lending support and encouragement, and ready to give assistance if required, he is as guilty as the one who actually pours the inflammable liquid on the victim and sets the victim on fire.

Also if both participants have the necessary intent and a man accompanies the other when the victim was put in the car and accompanies the other in carrying the victim to the place where the victim is to be set on fire, accompanying the other while knowing what they are going there to do, and accompanying the other so that they may do it, then he may be convicted of the crime charged on the basis of that participation."

12. These directions were balanced with a timely and early reminder to the jury, a short while later, as to the general nature of the defence case. The judge said:

"As to the murder count, there is no dispute that the deceased had inflammable liquid poured over him and was set on fire. Nor is there any dispute that the accused was present at the time. But he denies that he participated in setting the deceased on fire. According to him, he did not know that Chung Wing-ching was going to do that. So far as the murder count is concerned, the ultimate issue is whether you are sure that the accused took part in burning the deceased and did so with the intent to kill him or at least cause him really serious injury. You may think that the most important part of this issue is whether the accused participated in the burning. If he did, it may be that you would have little difficulty in concluding that he acted with intent to kill or at least to cause really serious injury. This was after all the dousing of a human being with inflammable liquid and then setting him on fire.

You have already received my directions as to the law of joint enterprise or common design relevant to the issue of the accused's participation in regard to the murder count."

13. These brief comments as to the defence case were reinforced by the judge towards the end of her summing up when she said:

"Was the accused a participant in the act of setting the deceased on fire? If so, was his intention to kill or at least to cause really serious injury? As to the second question, it is a matter for you but you may feel, even taking drug consumption by the accused into account, that if the accused was a party to the deceased being doused with inflammable liquid and set on fire, the only reasonable inference is that he intended death or at least really serious injury.

Was he a participant? He gave evidence denying that he was. And he had made such a denial to the police when interviewed after his arrest. Essentially what he said - when interviewed and in the witness box - was to the following effect. All that he wanted was for Chung to take the deceased in the car to some place where the deceased could catch transport to go home. He went along in the car in the belief that that was what was going to happen. He did not realise what Chung was going to do. He was a mere bystander when Chung dragged the deceased from the car, went back to the car to get a can, poured the contents of that can onto the deceased, and then set the deceased on fire. He was horrified.

Members of the jury, if you think that the accused was telling the truth, or might have been telling the truth, then you will find him not guilty on the murder count. But remember that he does not have to prove his innocence. So even if you feel sure that you cannot place any reliance on his word, the question is whether the prosecution has proved his guilt beyond reasonable doubt."

14. In these comprehensive directions to the jury, it is apparent that the judge had correctly analysed the issues for the jury's consideration.

15. The judge also gave the jury directions as to their approach to the lies which had been told by the Applicant. The directions cannot be criticised and, indeed, have not been criticised. The Applicant had admitted he had told a number of lies but it was open to the jury to decide that he had told more untruths than he had admitted. As part of the directions on this aspect, the judge very properly directed the jury that if they felt that there was an innocent explanation for the lies, they should ignore them. However, the jury was also told that if there was no innocent explanation for the lie or lies they were considering, on material issues, whilst they "must never convict a person just because that person lied", the lie or lies could support the prosecution's case.

16. The case itself was a formidable one. The victim had undergone a terrible beating having, as the Applicant admitted, been hit "indiscriminately" with a baseball bat. The victim was then tied up with wire by Chung with help from the Applicant. When the victim shouted out in pain, he was injected on two separate occasions with heroin in the presence of the Applicant. By the time he was untied, the victim was only half-conscious. It was necessary for the victim to be helped into the back seat of the Honda Civic car. The Applicant assisted in closing the door of the car. The Applicant maintained, despite the victim's condition, that he went with Chung in order to find a taxi to take the victim home. However, Chung drove the car to a refuse collection point instead. The Applicant was present while Chung set the victim on fire. The two men then returned from whence they came, travelling together in the Honda Civic car. All of these events were in the early hours of the morning and relate to evidence which the Applicant accepted in the course of his testimony.

17. Added to these features in the evidence, the Admitted Facts revealed that the Honda Civic belonged to Chung, and that Chung had told police, following his arrest, that "a can of thinners had been taken from the boot of his car". Bloodstains which could have come from the victim were discovered in that car on the nearside rear panel and seat.

18. PW12, who gave evidence under immunity, emphatically testified that it was the Applicant who first suggested that the victim should be tied up. It appears that this piece of evidence, having regard to a direction given to the jury that they should not rely upon the evidence given by PW12 or PW14, may well have been ignored by the jury, and should have been if the direction was properly adhered to. We shall need to refer to this direction later in the judgment. However, the Applicant's own testimony contradicted what PW12 had said because he accused Chung of being the instigator of the idea to tie up the victim, and, importantly, he gave as the reason for this that otherwise the victim's injuries might be seen by police and by neighbours.

19. With the combination of this evidence in mind, the judge directed the attention of the jury once more to the Applicant's alleged participation, at page 23J in the appeal bundle, where she said:

"On the question of participation, the prosecution is able to place the following before you for the purpose of asking you to say that the only reasonable inference is that the accused was a participant in the act of setting the deceased on fire. First, there is the accused's presence. He was there when the deceased was set on fire. He went there in the car with the deceased and Chung. He was there when the deceased was set on fire. And he then went away in the car with Chung.

Secondly, there is motive. Quite apart from any motive Chung or anyone else had, it is open to you to find that the accused himself also had no(sic) motive. The accused had assaulted the deceased. It is only common sense that the accused could have got into trouble with the police if the deceased reported that assault. There is evidence that the accused realised the risks. That is because on his own admission, he felt the need to extract the promise from the deceased not to report the matter to the police. He says that the deceased gave him such a promise, and that he believed the promise. But the facts are for you and you are entitled to take the view that he had a motive to kill the deceased so that the deceased could not inform the authorities of the assault.

Thirdly, there is this consideration. On the accused's own account he had secured Chung's agreement to driving the deceased somewhere for the deceased to catch transportation to go home, but Chung nevertheless asked him to come along in the car. If so, Chung would have been running, you may feel, three risks. One was that the accused, who had secured Chung's agreement to taking the deceased somewhere for the deceased to go home, would intervene when he instead set about burning the deceased.

The second is that the accused would attempt to rescue the deceased, perhaps successfully, by smothering the flames.

The third is that the accused would inform the authorities about what Chung had done - either by going to the police or at least by telling them about the matter if the police came to question him.

Do you think it is reasonable to suppose that Chung had, or might have, run those risks? Or do you think that the accused's presence at the scene leads, in all the circumstances, to the inference, as the only reasonable inference, that he was a participant in the burning of the deceased?"

20. A very short while later, the judge carried on by saying:

"Members of the jury, the decision is yours to make. You cannot convict unless you are sure, but there is evidence on which you are entitled to feel sure, if you see fit, that the accused was a party to a joint enterprise pursuant to which the deceased was murdered. If you feel sure of that, you are entitled to convict him of murder on count 2."

21. And then on page 26D, she continued by saying:

"As far as the murder count is concerned, however, the inference which the prosecution asks you to draw as the only reasonable one in all the circumstances applies to everything which constitutes the offence: participation in a common enterprise to burn the deceased with intent to kill him or at least to cause him really serious injury. Intent to cause him really serious injury would be sufficient intent for murder. But as a matter of common sense, you may feel that the prosecution's case on the murder count depends on your feeling sure that the accused intended to kill the deceased. Merely causing the deceased really serious injury would not eliminate the deceased as a witness in regard to the earlier assault. It would only turn the deceased into a witness in regard to the burning too."

22. Mr Chapman, on behalf of the Respondent, reminded us of what was said in R v Adrian Rook (1993) 97 Cr. App. R. 327 where the English Court of Appeal examined a line of authority with regard to the issue of withdrawal from a joint enterprise. He submitted that there was in the present case no evidence whatever of withdrawal on the part of the Applicant in a sustained attack upon the victim, beginning with the baseball bat and ending with murder. At every stage, the Applicant was present, taking an active and, at the very least, a secondary role, in what took place.

23. In Rook, Lloyd LJ said at page 333:

"In the present case the appellant never told the others that he was not going ahead with the crime. His absence on the day could not possibly amount to 'unequivocal communication' of his withdrawal. In his evidence in chief, in a passage already quoted, he made it quite clear to himself that he did not want to be there on the day. But he did not make it clear to the others. So the minimum necessary for withdrawal from the crime was not established on the facts."

24. We think this extract has application to the present case. The Applicant did not at any stage communicate withdrawal from the enterprise. On the contrary, the evidence was all the other way. However, even if the Applicant had testified to such effect, which he did not, the jury were fully entitled to find that the Applicant had lent himself to a criminal enterprise involving the infliction, if necessary, of grievous bodily harm. On any view, the circumstances were wholly inconsistent with a desire on the Applicant's part to find a taxi to take the victim home. Furthermore, he made no attempt to rescue the victim when he saw what Chung was doing or to help him afterwards. The victim was simply left to die, while the Applicant returned with Chung in the car after the cruel deed had been done.

25. The position in this case can be compared to the facts in R v Slack (1989) 1 QB 775 where the court was concerned with joint enterprise in murder committed in the course of a burglary. Lord Lane CJ stated at 781:

"A must be proved to have intended to kill or do serious harm at the time he killed. B may not be present at the killing: he may be a distance away, for example, waiting in the getaway car; he may be in another part of the house; he may not know that A has killed; he may have hoped, and probably did hope, that A would not kill or do serious injury. If however as part of their joint plan it was understood between them expressly or tacitly that if necessary one of them would kill or do serious harm as part of their common enterprise, then B is guilty of murder.

As appears from the cases we have cited, the direction may be in a variety of different forms. Provided that it is made clear to the jury that B to be guilty must be proved to have lent himself to a criminal enterprise involving the infliction, if necessary, of serious harm or death or to have had an express or tacit understanding with A that such harm or death should, if necessary, be inflicted, the precise form of words in which the jury are directed is not important. As Sir Robin Cooke observed in Chan Wing-siu v The Queen [1985] AC 168, 179C-D: 'No one formula is exclusively preferable; indeed it may be advantageous in a summing up to use more than one. For the question is not one of semantics.'"

26. In Chan Wing-siu, Sir Robin Cooke (as he was then) observed at page 177:

"It is what the individual accused in fact contemplated that matters. As in other cases where the state of a person's mind has to be ascertained, this may be inferred from his conduct and any other evidence throwing light on what he foresaw at the material time, including of course any explanation that he gives in evidence or in a statement put in evidence by the prosecution. It is no less elementary that all questions of weight are for the jury."

27. The directions given by the trial judge to the jury in the present case were impeccable and Mr Lloyd does not now seek to argue otherwise. Indeed, if they can be faulted at all, it is in the somewhat curious direction given by the judge in the course of her summing up to the jury, on page 13 of the appeal bundle. The judge said:

"Members of the jury, the evidence describing the assault which is the subject matter of count 1 comes: from the evidence given by Mr. Yiu Kwok-kay (PW14); from the evidence given by Mr Cheung Kwok-wing (PW12); from what the accused said when interviewed by the police; and from the evidence given by the accused in court.

Let me direct you straightaway that quite apart from their unreliable characters and the fact that they have been given immunity, the evidence given by Mr Cheung and Mr Yiu is so vague that you cannot rely on it against the accused. It is another matter if the defence seeks to rely on it. For example, Mr Cheung gave evidence suggesting that Mr Yiu and Mr Chung Wing-ching were also involved in assaulting the deceased; and Mr Yiu admitted that he himself hit the deceased with hard objects contained in a bag. The accused can rely on all of that as accounting for some of the injuries found on the deceased."

28. Clearly these directions were very heavily balanced in favour of the defence because the jury was being told that they could rely on PW12 and PW14 only if their evidence helped the defence. However, these directions, curious though they are, and no doubt given out of an abundance of caution, can give the Applicant no comfort at all as they were entirely helpful to him.

Conclusion

29. Nothing in the ground raised at this hearing has caused us to feel that there was anything about the verdict which can be described as unsafe or unsatisfactory. The evidence was amply sufficient to convict if the jury accepted the prosecution's version of events from which the inferences to be drawn were irresistible. It is clear that they did so and this court has found no reason to interfere with their verdict.

30. Accordingly, the application is dismissed.

Representation:

Mr P.S. Chapman, SADPP of the Department of Justice for the Respondent.

Mr Ian Lloyd, instructed by the Legal Aid Department, for the Applicant.