HKSAR v. Wu Wai Fung

CACC 523/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 523 OF 2004

(ON APPEAL FROM HCCC NO. 42 of 2004)

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BETWEEN

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Before:  Hon Stuart-Moore VP, Stock JA and McMahon J

Date of Hearing: 18 November 2005

Date of Judgment: 9 December 2005

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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):

1.The applicant was convicted on 3 December 2004 following his 23-day retrial on charges of murder (count 1) and forcibly taking away a person with intent to procure a ransom for his liberation (count 2) before V Bokhary J and a jury.  He was sentenced to life imprisonment on the 1^st count and to a concurrent term of 21 years on the 2^nd count.  The applicant now seeks leave to appeal against conviction on both counts.

2.The applicant’s original trial, which concluded with his conviction on the same counts, resulted in a successful appeal on 9 September 2003 (see: CACC 365/2000) on the ground that he had been denied legal representation, so that throughout the 39 days his case lasted, including a lengthy voir dire, he was unrepresented.  The facts which emerged in that trial differ very little from the general nature of the allegations made at the retrial with which we are now concerned.  This time, the applicant was represented, as he is in these proceedings, by Mr Egan.  The principle differences in the evidence produced in these two trials were that the applicant’s co-defendant at the original trial, Cheung Chi-keung, whose appeal was dismissed in CACC 365/2000, this time gave evidence for the prosecution and the applicant in his retrial chose to give evidence.  Although the applicant had not given evidence in the earlier trial, there had been, in effect, a cut-throat defence run by him and also by Cheung with each blaming the other of having committed the murder.  Cheung pleaded guilty to the 2^nd count.  The prosecution alleged that they were jointly responsible on both counts.

3.The facts of the case are somewhat lengthy and, as Mr Egan did not take issue with the comprehensive and helpful summary provided by Mr Saw SC for the respondent, we propose to adopt this in large measure.  This is made necessary by the two grounds of appeal which seek to attack the fairness of the summing up and make the complaint that manslaughter was not left for the jury’s consideration following a question which they asked during the course of their deliberations.

Prosecution’s case

4.The victim, who was allegedly murdered in a joint enterprise by the applicant and Cheung, was a 13-year-old Form 2 student at Ho Lap College in San Po Kong named Wu Ho-him.  He disappeared during the afternoon of 21 April 1999 as he was returning to school after a basketball game at a nearby playground.  It was the prosecution’s case that the applicant, with his accomplice Cheung, took the victim away in a borrowed motor vehicle intending to procure a ransom from his family for his liberation.

5.The principal evidence against the applicant came from two sources, namely Cheung himself and the admissions made by the applicant in his three cautioned statements (Exhibits P58, P59 and P61).  No voir dire was held to determine the voluntariness of these statements, but the way in which the admissions were obtained was disputed before the jury.

6.The victim’s father Wu Ka-fai (Mr Wu) had grown up with the applicant in their “native place” in the Mainland.  After coming to Hong Kong in the 1970’s, Mr Wu had little contact with the applicant.  The applicant had visited his home at Bay View Gardens twice and the victim and his younger brother were present on both occasions.

7.Cheung was a drug addict with previous convictions.  In his evidence, Cheung said that he had known the applicant since 1980.  Before the Lunar New Year in 1999, Cheung was unemployed.  The applicant asked him to take part in a kidnapping, saying that his duties would be limited to driving a vehicle and making telephone calls.  He said the proposed hostage was one of the two sons of a friend from his clan’s association.  Cheung agreed as he was in urgent need of money.

8.After the Lunar New Year, the applicant told Cheung that he would be attending a funeral to collect some information about the proposed hostage.  He was later told that the boy had not shown up at the funeral, but he had managed to find out which school the brothers were attending.  According to Cheung, initially the applicant intended to kidnap the younger of the two brothers but when they went to the vicinity of his school they were unable to see him.  Instead, therefore, the applicant decided to kidnap the elder brother.

9.Telephone records revealed that on the 8 March 1999 one call was made using the applicant’s mobile phone to call Ho Lap College (the victim’s school) and another was made to Choi Wan St Joseph Primary School (the school of the victim’s younger brother).

10.In the period prior to the abduction of the victim, the applicant had shown considerable interest in Mr Wu and his family.  When the applicant met the victim’s aunt (PW3) sometime in late 1998, he asked whether her premises at Bay View Gardens had been bought by Mr Wu and she had answered in the affirmative.

11.Both PW3 and the victim’s “grandaunt” (PW4) met the applicant at a funeral in February 1999.  On that occasion the applicant asked PW3 whether Mr Wu had gone to the Mainland on business, and how many cars he had.  He also asked PW4 a number of questions about Mr Wu including which school his children attended, how many cars he had, how much machinery he had, and whether he still lived at Bay View Gardens.

12.Towards the end of March 1999, the applicant told Cheung that the victim’s family would go back to their “native place” for ancestral worship and that he would go there to make sure that there was no mistaking the identification of the proposed hostage.

13.According to PW3, PW4 and Mr Wu, they saw the applicant in their “native place” during the Ching Ming Festival in 1999 when the family, including the victim and his brother, went there to pay tribute to their ancestors.

14.On his return from the Mainland, the applicant told Cheung that he had seen the whole family in the Mainland and that he would kill the victim if the boy was able to recognise him.  When he heard this, Cheung said that he refused to take part as they were in it only for money and there was no need to kill.  Later, the applicant assured Cheung that it would not be necessary to kill as he did not see the victim face-to-face in the Mainland.  Cheung understood that he would be there to drive and to make telephone calls for which he would receive 20% of the ransom as a reward.  The applicant told him to borrow a vehicle so that the victim could be kept inside it.

15.On 20 April 1999, Cheung borrowed a van from a former colleague.  He said that the applicant brought along 2 gloves and a hammer for the purpose of scaring the victim, the plan being to keep the victim inside the van at a quiet place for 2 to 3 days.  They had originally intended to carry out the abduction on 20 April 1999 but they were unable to do so because the victim’s mother came to pick him up in her car.

16.On the following day, 21 April 1999, the victim was with some of his classmates at a nearby playground playing basketball.  At the end of the game, he took the basketball back to the store where it was kept.  Soon afterwards, Cheung managed to lure him into the van he had borrowed.  This was driven away by the applicant.  After passing the junction where the school was located, the victim shouted out.  Cheung punched the victim 2 or 3 times in the head.  The applicant told Cheung to knock him out with the hammer which he then attempted to do.  When the applicant asked him to inflict more blows to the victim’s head, Cheung declined to do so.  The victim at this stage was said by Cheung to have passed out and had begun to bleed.

17.Some time later, Cheung took over the driving and the applicant took over in the rear of the van with the victim.  Cheung said that while he was driving, there were banging sounds behind him which seemed to have come from the two of them struggling in the back.  Cheung was unable to see what was happening because the curtains between them were drawn closed.  All of a sudden, he heard the sound of a bang and an object was thrown into the front compartment.  The applicant told him that the hammer head had been severed when he had used it to knock the victim out.  He then asked Cheung to find another weapon.  Cheung immediately obliged by driving into the Choi Hung Estate where he found a piece of rock measuring about 8 inches by 3 inches and gave it to the applicant.

18.Cheung said that as he was driving out of Choi Hung Estate, he heard the victim saying: “I’m in great pain.  Give me a break.  I can recognise you, uncle.”  Thereafter, he again heard banging sounds from the rear compartment behind him.  Shortly afterwards, the applicant told him that the victim was dead.  The applicant told Cheung he had no alternative but to kill the victim because he was able to recognise him and had addressed him as “uncle”.

19.Later, the applicant and Cheung removed the victim’s clothing, put the body into a bag and threw it down a hill at Fei Ngo Shan.  At that time, Cheung saw that both sides and the back of the victim’s head were “broken”.  The victim’s body and the floor of the van were covered with blood.  He also saw blood stains on the piece of rock.

20.A total of 23 ransom demands were made to the victim’s parents between 21 April 1999 and 28 June 1999.  The first call, in which Cheung demanded a ransom of $8 million, was made to the victim’s mother at about 6:25 pm on the same day as the kidnapping while she was making a report at the police station.  Nineteen calls, between 21 April 1999 and 11 May 1999, were made by Cheung before being admitted to the Shek Kwu Chau Drug Addiction Treatment Centre.  The applicant was present during some of these calls.  The remaining 4 calls, all long distance between 6 June 1999 and 28 June 1999, were made by a Putonghua-speaking female.

21.On 5 May 1999, the applicant brought Cheung to see a friend, Law Che-kong (PW6), who had worked at a refuse collection point.  They asked him about refuse collection procedures and, in particular, they asked if it was possible to tell the refuse collection staff not to open a bag (which would contain money) left in the refuse bin.  PW6 was offered a reward in return.  PW6 told them that he no longer worked at the refuse collection point and declined the offer.  This meeting was videotaped by the police.

22.Sometime in May 1999, the applicant brought Cheung to see a solicitor’s clerk Chan Wah-keung (PW7).  They asked if it would be possible to use the firm’s account to collect a sum of money in respect of a matter which had already been reported to the police.

23.Meanwhile, the victim’s father had become suspicious that it was the applicant who had kidnapped his son.  He sought assistance from a clansman named Chan Sau-nam (Chan).  He told Chan to contact the applicant and to deliver the ransom money for him.  Chan in turn asked the applicant to assist by acting as an intermediary with the kidnappers.

24.By the end of June 1999, the ransom was agreed at $2.4 million which Mr Wu managed to raise by borrowing.  No further ransom demand was received after he had handed the money to Chan.

25.On 30 June 1999, the applicant asked a friend, Tang Chi-hung (PW9), to call somebody on his behalf as the applicant did not want the other party to recognise his voice.  On the applicant’s instructions, PW9 made 2 telephone calls to Chan asking Chan for a contact telephone number in Macau and telling him to wait at the Macau barrier gate at 2:30 pm on the following day, 1 July 1999.  Later that day, the applicant went to Chan’s home to take a look at the ransom money.

26.Eventually on 1 July 1999, the applicant and Chan went to the border gate in Macau which allowed access to the Mainland.  The applicant went through the checkpoint by himself.  Chan dropped the bag containing the ransom money into the bin he had been instructed to use.  Police surveillance saw a female collect the bag from the bin and then cross over to Zhuhai with the applicant.  The female returned to Macau while the applicant was observed going to a branch of the Bank of China before returning to his home in Zhuhai.  Later on that day, he was arrested by officers of the Zhuhai Public Security Bureau (PSB) on board a bus bound for Guangzhou.  The $2.4 million ransom money was recovered from the applicant’s safe deposit box at the Bank of China.  On 6 July 1999, the applicant was returned to Hong Kong in the custody of Hong Kong police officers.

27.Cheung was arrested on 3 July 1999.  The victim’s skeletal remains were found by the police in Fei Ngo Shan on 4 July 1999 after Cheung had shown them where he and the applicant had left the body.  These remains were examined by a pathologist who confirmed that the victim had suffered several severe blows to the skull.  These injuries are graphically illustrated in photographs.  The victim’s blood and hair were found in the van in which the victim had been killed.

28.In his cautioned statements, the applicant had allegedly admitted that after Cheung had taken over the driving, he had hit the victim’s shoulder with the small hammer.  The  hammer then broke into two.  He described his actions as “like hammering a nail into a wall heavily”.  After this, on the way to Choi Wan Estate carpark, the victim bled a lot because he had hit his “head and shoulder” with the small hammer.  Then at the carpark in Choi Wan Estate, he and Cheung had taken part in hitting and holding down the victim.  The applicant held him tight while Cheung hit his head with a stone until he could not move.  The applicant admitted he was involved in kidnapping for money.

Defence case

29.The applicant’s evidence differed entirely from the account he had allegedly given to the police.  He denied being involved in the kidnapping and murder.  He said that he only became aware of the kidnapping and the demand for a ransom after the event when he had tried to help the victim in the delivery of the ransom so that the victim could be released.

30.On behalf of the applicant, it was put to Cheung in cross-examination that he was involved in the kidnapping with a person called “Simon” from the Mainland, that Cheung had killed the victim by striking him with a hammer and that the applicant only became involved when he later agreed to assist in getting the ransom.  Cheung denied all these suggestions and said that he had no idea who this “Simon” was supposed to be.  It was further suggested that Cheung had falsely blamed the applicant in order to get a reduction of sentence.  This, he denied.  Cheung was also cross-examined on discrepancies between his evidence at the 2000 trial and the present trial.

31.The applicant’s account was that he had not seen Cheung for about 10 years but at about the time of these events he had four meetings with him.  The first of these was on 28 April 1999 when Cheung asked to meet him at Ngau Tau Kok.  Cheung revealed his involvement in the kidnapping saying that he wanted to get money for his family before being admitted into the drug addiction treatment centre.  Cheung asked for his help but he refused.  The next meeting was in May when Cheung asked the applicant to help in recruiting a refuse collection worker to collect the ransom.  He said that, acting as a middleman, he arranged a meeting between Cheung, his friend Law Che-kong (PW6) and himself.  He told PW6 that a bad debt had to be collected, but Law refused to become involved.  The applicant said that he reluctantly agreed to meet Cheung again in Ngau Tau Kok several days later.  Again, he refused to help Cheung.  During the meeting, Cheung made 2 telephone calls to the victim’s family to prove to the applicant that the matter had not been reported to the police.  The last meeting was two or three days later when the applicant agreed to meet Cheung in Mongkok and yet again Cheung sought his help but he refused to give it.  He then had to attend a solicitor’s office to discuss emigration matters with Chan Wah-keung (PW7) but Cheung followed him there.  During the meeting, the applicant asked PW7 about the possibility of collecting a bad debt through the firm of solicitors.  Before they parted, Cheung gave the applicant a piece of paper containing the pager number of “Simon” who was said to be the kidnapper.

32.The applicant described his relationship with Chan, the clansman of the victim’s father, as being like “brothers” as they came from the same native place.  Between 20 and 21 April, the applicant said that Chan informed him of the kidnapping and asked for his help as he (the applicant) knew many people including retired police officers.  Notwithstanding the applicant’s refusal to become involved, Chan nevertheless persisted in seeking his assistance.  In late May or early June, the applicant told Chan that he knew who had done the kidnapping.  Chan asked him to help in the hand-over of the ransom.  The applicant agreed and arranged to meet “Simon” in Zhuhai.

33.At the first of the meetings which followed, the applicant said that he “pressed ‘Simon’ to call the victim’s family” about the collection of the ransom.  During the second meeting, he reassured “Simon” about Chan’s trustworthiness and in the third meeting, he said he proposed placing the ransom in a safe deposit box in a bank in Zhuhai.  He would give the money to “Simon” after the release of the victim and “Simon” agreed to his proposal.

34.The applicant explained that he asked his friend (PW9) to call Chan on 30 June 1999 because “Simon” wanted to get Chan’s contact number in Macau.

35.On 1 July 1999, the applicant said that he went to Macau with Chan to deliver the ransom.  A female, “Ah Heung”, was waiting at the barrier gate and collected the ransom from the bin after Chan’s departure.  After he had gone to Zhuhai, the applicant put the ransom in a safe deposit box and was arrested soon afterwards on board the bus to Guangzhou.

36.Dealing with his admissions in the cautioned statements, the applicant alleged that the statements were fabricated by the police and that he had been forced to cooperate by the conduct of the PSB officers in the Mainland and the Hong Kong police officers.

37.More specifically, it was said by the applicant that in respect of Exhibit P58, which purported to be the applicant’s statement taken in Zhuhai on 3 July 1999, the Mainland officers threatened him with execution and the detention of his son unless he co-operated.  These threats were repeated by the Hong Kong police officers.  His requests to make telephone calls were denied and the Hong Kong police officers asked him to shift the blame onto Cheung.  The applicant said he signed the statement fearing for his life and for his son.

38.The applicant said that he signed Exhibit P59, taken in Zhuhai on 6 July 1999, after being threatened by the Mainland and Hong Kong police officers.  Later, on the same day, he alleged that he was pressured into writing and signing Exhibit P61, the notebook entry taken at Lok Ma Chau Border Control Point.

Grounds of appeal

39.Mr Egan put forward two grounds of appeal on the applicant’s behalf.

(1)   Comments to the jury

40.In the first ground, Mr Egan submitted that the applicant had been denied a fair trial because the judge had gone “beyond the acceptable limits that allow judges to make comments” so that the summing up became a “virtual direction to the jury to convict”.

41.It is, of course, fundamental to the fairness of proceedings in any jury trial that the summing up of the judge should set out for the benefit of the lay jury the important issues of law and fact with clarity and with a demonstrably even-handed approach to the prosecution and the defence.  This was a matter to which P Chan PJ in Lin Ping-keung v HKSAR [2005] 8 HKCFAR 52, at 59-60 turned his attention when saying:

“24.   A trial judge is under a duty to summarize the issues and the evidence relating to these issues clearly, accurately and fairly to the jury.  Although the jury are the sole judges of the facts, the trial judge is also entitled to express to the jury his or her views on the evidence, provided that the jury are told in clear and unambiguous terms that those are only the judge’s personal views, that the jury must form their own views on the evidence and that they can ignore the judge’s views if they do not agree with them.  However, notwithstanding such direction, it is perhaps understandable that the jury might sometimes attach more weight to the views of the trial judge than those expressed by counsel.  It is therefore important that a judge should be very careful in making comments on the evidence, particularly comments adverse to the accused.

25.     Where a defence is less than convincing or credible, the judge is often tempted to comment on it with the intention of assisting the jury.  This is permissible.  See Simon Brown LJ in R v Nelson [1997] Crim LR 234:

‘Of course, the judge must remain impartial.  But if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities, there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis.  Why should pointing out those matters be thought to smack of partiality?’

26.     However, what a judge says to the jury is very often the last word they hear before they retire and carries more weight than what defence counsel says in a closing address and what the judge says must truly and accurately reflect the evidence, must give a fair and balanced guidance to the jury and must avoid the use of sarcastic, unnecessary, inappropriate or even extravagant language.  See R v Berrada (1990) 91 Cr App R 131.  As the Lord Chief Justice said in R v Marr (1990) 90 Cr App R 154 at p. 156:

‘It is however an inherent principle of our system of trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge.’”

The considerations in Lin Ping-keung’s case have for long been recognised as having crucial importance.  Bearing these factors in mind, it is abundantly plain that the judge’s directions to the jury in the instant case were in keeping with them.

42.Taking some of the examples of alleged unfairness to which Mr Egan attached importance, he submitted that the length of time the judge concentrated on the evidence given by prosecution witnesses was far greater than for the defence.  He also submitted that references to defence cross-examination were brief and in any event were followed by comments geared to reinforcing the prosecution’s case.  Before turning to any of the examples Mr Egan chose as illustrations of his point, it is tantamount to stating the obvious that the prosecution called numerous witnesses, some of whose evidence was extensively challenged whereas, for the defence, the applicant was the sole witness and it is unsurprising, therefore, that the bulk of the evidence to be summed up concerned prosecution witnesses.  Furthermore, the judge’s directions on the law, given early in the summing up, covered topics in fairly standard form, properly adapted to the facts of this case, which explained to the jury amongst other things how they should approach any inconsistencies or discrepancies in their assessment of the witnesses and which reminded them to give careful consideration to the points made in the closing speeches of counsel.  Importantly, also, a warning as to the care needed in approaching the evidence given by Cheung, the accomplice, could not have been more explicitly or helpfully expressed.

43.Mr Egan, under the heading in his written submission of ‘unbalanced summary of evidence’ chose three examples to illustrate the point he wished to make.  All of these examples related to the way in which the evidence of the victim’s family members was summed up (between pages 14-17 in the appeal bundle) and, in our opinion, in regard to none of them is there revealed a lack of balance.  The judge explained the relevance of these witnesses, the first two revealing an interest on the applicant’s part about the father of the victim’s financial position and the third providing evidence of contact between the applicant and family members which had relevance to the victim’s cry from the back of the van showing that he could recognise the applicant.  These comments were sensible and entirely appropriate.  There was no unfairness in the judge’s handling of this material.

44.The next point made by Mr Egan was concerned with what he alleged was the judge’s failure to identify the significant areas of conflict between the evidence given by Cheung and by the applicant and also by the length of the summary provided by the judge when dealing with Cheung’s evidence when compared to the much shorter summary of the applicant’s evidence.  These arguments were wholly without merit.  A substantial part of the prosecution’s case was built upon Cheung’s account about what had happened and it is small wonder that this took some time to cover.  Furthermore, the jury could not have failed to observe the differences in the two accounts.  Mr Egan’s submission that it was unfair of the judge to have directed the jury late in her summing up (at page 69 in the appeal bundle) about the fundamental conflict between their evidence, when the evidence of Cheung (pages 20-33) and the applicant (pages 45-49) had been covered considerably earlier, was artificial.  The judge’s summary of the evidence bore all the hallmarks of having been carefully structured to give the jury the maximum assistance.  When dealing with the cross-examination of Cheung, she had reminded the jury that:

“… the cross-examination of Cheung [was] conducted by the accused’s counsel, Mr Egan, with a view to attacking Cheung’s reliability, challenging his account and putting the defence case to him.  You will take into account the whole of that cross-examination and not merely the parts of which I make specific mention.

The cross-examination included laying emphasis on Cheung’s family responsibilities, the drug habit that he had to support, his financial difficulties, his lack of employment and the fact that he was going into the Drug Addiction Treatment Centre.

It was put to Cheung that these matters caused him to be involved in the kidnapping and that he was involved in the kidnapping with other persons including a mastermind from the Mainland named Simon, but not with the accused.  Cheung said that he had no idea who this Simon was supposed to be, and that his involvement was with the accused, just the two of them.

It was suggested to Cheung that he falsely blamed the accused at his – that is Cheung’s – trial in the year 2000 to try to get acquitted and that he is falsely blaming the accused now in order to get a reduction of sentence.  Cheung maintained that his evidence against the accused is true.

Cheung was cross-examined on discrepancies between his evidence at his trial in the year 2000 and his evidence at the present trial.  It was brought out in cross-examination that Cheung had alleged at his trial that out-of-court admissions had been improperly extracted from him by the police, and that Cheung was maintaining this allegation even now.

It was suggested to Cheung that he killed the deceased by striking him with a hammer.  Cheung denied that that is how the deceased was killed.  He maintained his account of the accused’s involvement and of the accused being the one who actually killed the deceased.

It was put to Cheung that the accused only became involved after the kidnapping and the killing when he agreed, for the sake of the deceased, to assist in getting ransom.  Cheung disagreed.” (Appeal bundle pp. 32-33)

45.Another aspect of Cheung’s cross-examination and his re-examination were then summarised before the judge went on to say:

“Now let me repeat something which I have already told you.  You are entitled to accept part of what a witness says while rejecting another part of what that witness says.  But if you find a prosecution witness unreliable on anything that matters, then you must of course be extra careful before accepting anything else which matters said by that witness against an accused.

These directions are of particular importance in respect of Cheung’s evidence.  He maintains even now, as he had alleged at his trial in the year 2000, that the police had extracted out-of-court admissions from him by improper means and then lied in court by denying that.  If you feel that he was or may have been untruthful about that, then you must of course be extra careful for that reason before accepting anything else which matters said by him against the accused.  Of course you can, if you see fit, accept his evidence against the accused after exercising such extra caution.

If you think that there is or may be substance in Cheung’s allegations of impropriety against the police, then you should take that into account when considering what weight to attach to the accused’s out-of-court admissions relied upon by the prosecution but disputed by him.

Of course you are still entitled, if you see fit, to attach full weight to those admissions.  The facts are for you alone as the sole judges of fact.

Members of the jury, the man whom you are trying for murder is the accused, not Cheung.  Cheung has already been convicted of murder.  And of course you are not being asked, and you cannot be asked, to convict the accused of murder just because Cheung is guilty of murder.  You are being asked to convict the accused of murder on the whole of the evidence.” (Appeal bundle pp. 33-34)

46.When the judge later turned to the cross-examination of the applicant, she dealt with this relatively briefly by saying:

“… Miss Anna Lai for the prosecution cross-examined the accused in order to dispute and discredit his evidence.  The cross-examination was conducted in considerable detail, and you heard it fairly recently.  I am confident that you have a good recollection of it – so I need not, and will not, repeat it.  You will also remember the accused’s re-examination.” (Appeal bundle p. 49)

47.The next of Mr Egan’s points under this ground of appeal arose from the judge’s comment to the jury:

“What do you think of Mr Egan’s point in cross-examination to the effect that it would be strange for the accused to try to interest Cheung in a proposed kidnapping?  Consider that point.”

Mr Egan argued that it was unfair of the judge then to have followed this by saying:

“… But you are also entitled to consider this.  On the accused’s own account, Cheung is said to have told him of a kidnapping that had actually taken place, and tried to get his help in collecting ransom.  Would not that be even stranger and riskier since it was a kidnapping which was not merely being contemplated, but which had already taken place?  Is Cheung’s account so strange that you should not believe Cheung?  This is a matter for you as the sole judges of fact.” (Appeal bundle p. 69)

48.This was a straightforward example of logic and simple analysis being applied to the facts of the case which the judge was entitled to have put forward to the jury.  Perhaps it was stating the obvious but it certainly did not reveal unfairness.

49.These comments also have to be viewed in the context in which they were spoken.  Just beforehand, the judge had directed the jury in terms that:

“The accused’s account is that he is innocent and that his only involvement is to try to help the deceased by delivering the ransom so that the boy would be released.  He does not have to prove his innocence.  One each count, it is for the prosecution to prove his guilt beyond reasonable doubt.  That is what the prosecution has set out to do and asks you to say, by your verdicts, that it has succeeded in doing.

The conflict between Cheung’s evidence and the accused’s evidence is fundamental.  You will of course bear in mind my warning about the evidence of a witness like Cheung.  And in taking into account their respective demeanour in the witness-box, you will bear in mind the pressure on the accused as somebody on trial for extremely serious crimes.  If bearing all of that in mind, you feel sure, as the sole judges of fact, that the truth comes from Cheung and not from the accused, then you may act on Cheung’s evidence.” (Appeal bundle p. 69)

50.A little later, before giving a last, brief reminder of the prosecution’s case, the judge said:

“You cannot be asked to accept Cheung’s evidence and reject the accused’s evidence merely on the basis that Cheung’s account is more likely to be true.  The prosecution is not asking you to proceed on that basis.  It is asking you to accept Cheung’s evidence and reject the accused’s evidence on the basis that you are sure, which it urges you to be, that the truth comes from Cheung and not from the accused.  If you are sure of that, then you may act on Cheung’s evidence.

The conflict between the police officer’s evidence and the accused’s evidence on the taking of his out-of-court statements is also fundamental.  Again it is not a question of whether the officer’s evidence is more likely to be true.  The prosecution asks you to act on the accused’s disputed admissions on the basis that you are sure, which it urges you to be, that the truth comes form the officers and not from the accused.  If you are sure of that, then you may act on these admissions.

You will remember and take into consideration all of the evidence in this case: prosecution evidence and defence evidence.  Where the witnesses are concerned, you will take into consideration all such evidence-in-chief, cross-examination and re-examination as there was.  You will take into consideration all the assertions and all the explanations offered, whether I have mentioned them or not.  You will take into consideration both counsel’s points, those they sought to make in questioning witnesses, and those they sought to make in speeches.

When considering the prosecution’s evidence, you will of course take into consideration at the same time everything put forward by the defence by way of defence evidence and points made by defence counsel in the questioning of witnesses and in speech.  For example, in relation to Cheung’s credibility, you will remember Mr Egan’s point made in his speech about another voice, not that of the accused or of Cheung, in the tape of a ransom demand made on the telephone.

And in relation to the out-of-court statements, you will remember, for example, Mr Egan’s point about the absence of evidence from the Public Security Bureau.  These points are, as all points are, for you to assess as the sole judges of facts, attaching such weight to them as you see fit.  As I have told you, it is not for the accused to prove he is innocent.  It is for the prosecution to prove his guilt beyond reasonable doubt.” (Appeal bundle pp. 70-71)

51.We are satisfied that there is no merit in any of the points made by Mr Egan under this ground.  Indeed, we observe that when, in the absence of the jury, he complained to the judge that the defence had not been fairly advanced to the jury, and had been given the opportunity to say how the defence had been disadvantaged, Mr Egan said:

“Perhaps I am oversensitive.  Can I ask your Ladyship to [go through your notes] tonight and we’ll see what the situation is tomorrow.” (Appeal bundle p. 145)

Mr Egan was himself unable to point out anything which he desired the judge to add.

(2) The applicant’s state of mind

52.The jury apparently began their deliberations shortly before 1:00 pm on 1 December 2004 and, at about 8:00 pm, they wrote a question in the following terms:

“Assume both Wu and Cheung were inside the van and both of them aware there was a hammer, and we assume Cheung struck the hammer and Wu didn’t know Cheung’s intention to kill the boy.  Wu didn’t stop Cheung and the boy was dead.  In above case, should we define it as joint enterprise and convict Wu?” (Appeal bundle pp. 135-136)

53.This question, after hearing the submissions of counsel, was answered in the following terms:

“Now, members of the jury, I begin by repeating something I have already said to you in my summing-up, and it is this.  What does the expression ‘joint enterprise’ mean?  It means the conduct of two or more persons who take part together in a course of criminal conduct.  Under the law, each such person is criminally liable for all the acts done in pursuance of the joint enterprise.  So he is criminally liable not only for his own acts but also for the acts of another participant or participants done in pursuance of the joint enterprise.  He will be criminally liable for such acts if he intended that they be done.

Suppose he did not intend that they be done.  Even so, he would still be criminally liable for them if, (1) they were done in pursuance of the joint enterprise; (2) they were of a type which he foresaw as a possible incident of the joint enterprise; and (3) he participated in the joint enterprise with such foresight.

If Cheung and the accused were in the course of a joint enterprise of kidnapping the boy, and Cheung, in the course of that joint enterprise, killed the boy by hitting him with the hammer, then the questions are these: first, were Cheung’s acts of killing the boy by hitting him with a hammer acts done in pursuance of the joint enterprise?  If your answer as the sole judges of fact is ‘yes’, then the next question is this: were those acts of a type which the accused foresaw as a possible incident of the joint enterprise, i.e. as something which would possibly occur in the course of the joint enterprise?

If your answer as the sole judges of fact is ‘yes’, then you may convict him of murder if he participated in the joint enterprise with such foresight.  In other words, if he participated in the kidnapping of the boy even though he foresaw the killing of the boy as a possible incident of that joint enterprise.” (Appeal bundle p. 136)

54.This direction closely followed what was said by Bokhary PJ in Sze Kwan-lung and Ors v HKSAR [2004] 7 HKCFAR 475 at 488 which was in these terms:

“34.   While this is not the occasion for giving a definitive decision on the entirety of the doctrine of joint enterprise, it is my view, as indicated above, that the doctrine is distinct from the common law principles of aiding, abetting, counselling or procuring.  Each participant is criminally liable for all the acts done in pursuance of the joint enterprise.  And whether or not he intended it, he will be criminally liable for any such act if it was of a type which he foresaw as a possible incident of the execution of the joint enterprise and he participated in the joint enterprise with such foresight.  This may be traced at least as far back as Alderson B’s famous direction to the jury in Hodge’s case (1838) 2 Lewin 225 at p. 226; 168 ER 1136.  And it is the effect of our law as it has been clearly understood at least since the decision of the Privy Council on appeal from Hong Kong in Chan Wing Siu v R [1985] AC 168, which involved murder and wounding with intent. I have particularly in mind what Sir Robin Cooke (as Lord Cooke of Thorndon then was) said at pp. 175 G-H and 177B in the course of delivering their Lordships’ advice in that case.

35.     After examining the authorities in Australia and New Zealand as well as in England, Sir Robin Cooke said this (at p. 177G-178B):

‘The test of mens rea here is subjective.  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.  The prosecution must prove the necessary contemplation beyond reasonable doubt, although that may be done by inference as just mentioned.  If, at the end of the day and whether as a result of hearing evidence from the accused or for some other reason, the jury conclude that there is a reasonable possibility that the accused did not even contemplate the risk, he is in this type of case not guilty of murder or wounding with intent to cause serious bodily harm.’

Chan Wing Siu v R [1985] AC 168 was applied by the House of Lords in R v Powell [1999] 1 AC 1.”

55.Mr Egan submitted that the answer with which the jury had been provided did not “sufficiently explain that depending on the applicant’s state of mind … at the material time, [the jury] could equally have found [the] applicant guilty of manslaughter.”

56.On any reading of this case, it is apparent that the killing of the victim amounted to murder on the part of those who bore responsibility for it.  Mr Egan, despite being given many opportunities to do so was unable to provide any basis, without considerable speculation on his part, for a verdict of manslaughter.  On Cheung’s account, the applicant had killed the victim immediately after he had been recognised by the victim.  On the applicant’s account, he had not even been present when the killing occurred.  The photographs of the victim’s skeletal remains, and his skull in particular, taken together with the evidence of the pathologist, confirm that there had been an attack of the utmost savagery upon the defenceless victim.  The jury was aware that Cheung had already been convicted of murder so that no question had arisen in his case of manslaughter on the ground that he lacked the intent required for murder.  The applicant, by reason of his defence, made no claim to a lesser verdict.  He was, in other words, either guilty of murder or he was not.  Manslaughter, on these facts never arose.

57.It may be that out of an abundance of caution the judge, in the course of summing up the law, chose to direct the jury that if they were sure that the applicant had killed the victim but were “not sure that he did so with intent to kill … or at least cause him really serious injury” he would still be guilty of manslaughter.  She then went on to direct the jury as to the ingredients of manslaughter.  With respect, this was an unnecessary complication in a case which, on the facts as presented, had never given rise to any such verdict.  That this direction was given could not, of course, prejudice the applicant’s defence but he should not have been given the benefit of it.

58.Returning to the question posed by the jury, it is plain that this postulated a scenario where:

(1) the applicant and Cheung were both inside the borrowed van;

(2) both of them knew that the hammer was there;

(3) Cheung struck the victim with the hammer;

(4) the applicant did not know that Cheung’s intention was to kill; and that

(5) the applicant did not stop Cheung “and the boy was dead”.

59.In our opinion, the judge rightly directed the jury, in the terms we have set out already, as to the circumstances in which they could find the applicant guilty of a joint enterprise with Cheung in murder.

60.No direction on manslaughter arose on the jury’s question and, as we have said, there was no basis for this to have been raised at any stage in this trial.

Conclusion

61.There being no merit in the grounds raised on the applicant’s behalf, the application is dismissed.

Mr D G Saw, SC, DDPP and Ms Anna Y K Lai, SGC, of the Department of Justice, for the Respondent.

Mr Kevin B Egan, instructed by Messrs Louis Pau & Co. (assigned by Director of Legal Aid), for the Applicant.