HKSAR v. Kwok Ka Ming and Others
Read the full judgment text of CACC 75/2006 on BabelCite. This Court of Appeal judgment was delivered on 13 August 2007.
1. The appellants (D1, D2, D3 and D4 respectively) were convicted on 17 February 2006 of murder following a trial before V Bokhary J and a jury. Each of them now seeks leave to appeal against conviction. We can indicate from the outset, for the various reasons provided in this judgment, that we have granted leave to appeal to all of them.
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CACC 75/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL criminal APPEAL NO. 75OF 2006 (ON APPEAL FROM HCCC NO. 103 of 2005) ____________________ BETWEEN
____________________ Before : Hon Stuart-Moore VP, Stock JA and McMahon J Date of Hearing : 15 May 2007 Date of Judgment : 13 August 2007 ______________________ J U D G M E N T ______________________ Stuart-Moore, (giving the judgment of the Court): Background 1.The appellants (D1, D2, D3 and D4 respectively) were convicted on 17 February 2006 of murder following a trial before V Bokhary J and a jury. Each of them now seeks leave to appeal against conviction. We can indicate from the outset, for the various reasons provided in this judgment, that we have granted leave to appeal to all of them. 2.The facts were relatively straightforward and the prosecution’s case depended to a large extent on the version of events put forward by each of the appellants in their police interviews. None of the appellants gave evidence at trial. 3.By way of background to the killing, much of which was contained in the Admitted Facts, the deceased operated a wholesale fruit market business in Yaumatei as a consequence of which he was in the habit of getting up early in the morning and travelling to work by the same route. This involved leaving his home in Tsing Yi and walking to Maritime Square to the entrance of the Airport Express Station situated there. He would then routinely use the pedestrian footbridge after leaving the station at about 2.30 am, and take the escalator down to a taxi-stand in order to travel to Yaumatei. 4.On 9 October 2004, having apparently followed his usual routine, the deceased was found at about 2.30 am by a member of the public (PW1), close to the escalator near Maritime Square, in a pool of blood. At 2.38 am, police received a 999 call and an ambulanceman who attended the scene could find no pulse or breath and he noted that the deceased’s body was no longer bleeding. 5.Death was certified by a doctor shortly afterwards. On examination, the deceased was found to have a neck wound measuring 5 centimetres in length. The weapon (Exhibit P3) which had caused the injury, described in evidence as a ‘butterfly’ knife, was found nearby and on scientific examination this was found to have the deceased’s blood upon it. 6.Dr Poon Wai-ming, a forensic pathologist, conducted a post-mortem examination on the body of the deceased. The judge summed up this evidence by reminding the jury that in Dr Poon’s opinion death was due to rapid blood loss from the complete severance of the carotid artery and jugular vein on the right side of the neck. The wound was consistent with having been caused by a stabbing instrument with a sharp cutting edge such as the knife, Exhibit P3. The judge’s summary of the remainder of Dr Poon’s evidence can be shortly described. There was a zigzag-shaped wound to the deceased’s neck consisting of four limbs with three sharp turns to a depth of 9 centimetres. Dr Poon noted that the blade of Exhibit P3 measured 9.3 centimetres in length. The weapon had penetrated a muscle on the right front of the neck before cutting the right internal jugular vein and carotid artery. It had then cut through part of the cartilage of the voice-box and into the muscular tube behind the voice-box before causing oblique cuts to the soft tissue just in front of the spine. These two oblique cuts were nearly parallel and about a centimetre apart meaning that there had been more than one horizontal movement of the knife blade inside the body. This finding corresponded with the multiple limbs of the zigzag wound to be seen on the neck. Dr Poon stated that this indicated a repeated horizontal motion of the knife-blade inside the body which he described as a twisting and rocking motion of the stabbing instrument. This, he said, could have been due to the knife being actively moved in the wound by the assailant or by the body moving relative to the knife or by a combination of both. 7.Significantly, in the light of D1’s description of the incident in which he confessed to the police that he had wounded the deceased, Dr Poon asserted that the injuries were not caused by a ‘slash’ or a ‘flick’ of the knife but by a stab with moderate to severe force. 8.The prosecution alleged that D4, the “sworn mother” of D1, had responsibility for instigating the attack on the deceased and then, immediately prior to the killing, supplied D1 with information as to the deceased’s movements when he was in the vicinity of Maritime Square. 9.A few days before the killing, D4 had spoken to D1. Originally, she told him that she wanted the deceased to be taught a lesson and hit with a rod so that he would be unable to go out. After D1 had agreed to the proposal, D4’s account was that D1 telephoned her on the night of the killing to say that he had bought a knife and she had replied “okay”. Later, having learnt from D1 that the deceased was nowhere to be seen, she said she would telephone the deceased to ask if he had yet gone out. She then explained to the police how she “taught” D1 how to find the deceased near Maritime Square. She told D1 to “pull off his chain for [her] and teach him a lesson”. She telephoned the deceased and informed D1 that the deceased “would be going down there. It is almost time. He is now in the toilet”. In short, the case against D4 was that, in the knowledge that D1 was carrying a knife intending to teach the deceased a lesson, she supplied D1 with information about the deceased’s movements so that D1 could carry out the attack. 10.D1 admitted to the police that he had killed the deceased with a knife he had purchased just before the attack. He also bought gloves and a red, long-sleeved T-shirt which he was wearing at the time of the attack. His purpose had been to teach the deceased a lesson by “slicing” him a few times because the deceased had scolded and beaten his sworn mother (D4) who worked for the deceased. He said that the deceased also owed money to his sworn mother. He received information about the deceased’s movements from D4 and he had engaged D2 and D3 to act as lookouts for him. 11.D1’s case at trial was presented on the basis that this was a robbery which had gone badly wrong and that the killing was “accidental” in the sense that there had been no intention to cause really serious bodily harm at the time he inflicted the wound on the deceased. It will be necessary later to go into greater detail about this aspect of the defence case in the context of the ground of appeal raised on his behalf. 12.D2’s admissions to the police were that he had been asked by ‘Ah Ming’ (D1) to kill a person who had beaten ‘Ah Ming’s’ sworn mother. He refused to do this but agreed to help as a lookout when Ah Ming cut that person. He travelled with Ah Ming by taxi to Maritime Square and saw what appeared to be a butterfly knife when it was taken out in the course of the journey. He was told that the intended victim would be cut but not killed and he agreed to keep watch for the police while this was done. He had understood that the victim would be cut several times but had not thought he would be killed. 13.Similarly, there were admissions from D3 to being asked by D1 to act as a lookout to give a warning about the presence of the police. He referred, at various stages of his interviews, to his understanding that a man who had bullied ‘Ah Ming’s’ sworn mother was going to be “chopped” a few times. However, he had not seen the knife and, at various stages of his interviews, he gave accounts which described the anticipated attack as not necessarily involving a bladed weapon. Again, it will be necessary later, in the context of the grounds of appeal specifically raised in D3’s case, to look more closely at the descriptions he gave to the police about his understanding of the nature of the attack to be carried out by ‘Ah Ming’ to which he was allegedly a party. Grounds of appeal 14.With this general background, it is possible now to consider the grounds of appeal. D1’s application – ‘accidental’ infliction of the wound 15.There was no issue at trial that D1 had caused the wound which killed the deceased. The ground raised on D1’s behalf by Mr Stirling (who did not appear in the court below) was that the judge had inadequately directed the jury as to “whether the fatal blow was inflicted accidentally” when D1 “attempted to snatch a necklace from the neck of the deceased”. It was submitted that this issue had arisen from a reading of D1’s interviews (Exhibits P51 and P56) and that the judge had failed both to direct the jury that it was incumbent on the prosecution to negative this possibility and to give any direction as to the position in law if the jury accepted D1’s explanation for the injury or thought it might be true. 16.This ground of appeal was also relied upon by the other appellants having regard to the judge’s direction that if D1 was convicted of manslaughter none of the other defendants could be convicted of murder. 17.Before turning to D1’s explanations for his conduct given in two interviews, it was argued on his behalf that when his answers are carefully analysed, they amounted to a confession to a robbery which had not taken the course which D1 intended. D1, it was submitted, had been saying that he had approached the deceased, knife in hand, and had attempted to snatch the deceased’s necklace. The deceased, however, had resisted and, in the course of the skirmish which followed, the knife “accidentally” wounded the deceased. In this sense, Mr Stirling was not suggesting that a defence of pure accident could be advanced either at trial or in these proceedings. He conceded that the death was caused by an unlawful act, carried out in the course of an attempted robbery, which he contended left open a verdict of manslaughter on a basis which was never properly explained to the jury. In making these submissions, Mr Stirling echoed the approach taken by defence counsel at trial who had addressed the jury along the same lines when asking for a verdict of manslaughter. 18.It is necessary, therefore, to look at the detail of some of D1’s replies during his interview before examining the way in which the judge directed the jury on this issue. 19.D1 described himself as a transportation worker who was employed at the Yaumatei Fruit Market. He admitted that he knew the deceased by the nickname ‘Tsui Mau’ and that he was going to teach him a lesson. He had seldom spoken to him but he knew him as someone from the fruit market. For the purpose he had in mind, D1 purchased a long-sleeved red shirt. When asked what he intended to do to the deceased, he replied: “I just wanted to slice him with a knife several times … I mean to slash his arms and legs.” He also bought some gloves and what he described as a ‘balisong’ knife. He identified the knife (Exhibit P3) which he was shown by the police. After the purchase of the knife, he made his way to the fruit market where he worked and had a glass of “liquor”. At about 2 am, he called for a taxi. The driver had been known to him for about two years. At that time, he was with two others, ‘Ah Po’ and ‘Ah Yuen’. He then telephoned his sworn mother and told her that he was now going to help her by giving Tsui Mau a lesson. After this, he took a taxi to Tsing Yi with the two other men, getting out at Maritime Square. He told the taxi driver to wait. The other two men were acting as lookouts as he went to the escalator to wait for the deceased in order “to snatch his necklace and give it to [his] sworn mother”. As he waited, his sworn mother telephoned to say that the deceased had almost arrived. 20.Describing the events at the time of the killing, D1 said: “I intended to arm-lock [the deceased] and pull his necklace. Then he elbowed me once; his elbow landed on my left … then I sliced him accidentally”. D1 said that he was holding the knife in his right hand. The deceased had been going down the escalator and D1 said he walked down and “pulled his necklace; then he attacked me once … then I raised the knife ... then I flicked it once; he dashed around madly, I mean he bumped me away”. When asked if he stabbed once, D1 replied: “Swung wildly. I had no idea whether I stabbed … him or sliced him … Then I left.” D1 said that he had no idea that this would be such a serious incident, adding that he did not expect this “could have accidentally caused [the deceased’s] death”. 21.Describing what he did afterwards, he said that he changed out of the red ‘T’ shirt together with the gloves and jeans he had worn at the time of the killing. He changed into other trousers and a shirt which he had taken with him and had left in the waiting taxi. He took the taxi to a place where he could burn his outer clothing and later on he threw away the shoes he had worn. 22.In a second interview, D1 was asked to demonstrate how he had held the knife at the time of the killing. He replied:
23.Mr Stirling argued that the effect of D1’s answers gave rise to a clear defence to murder in that, on the evidence of D1’s interviews which the jury had to evaluate, D1 had two intended purposes in mind. Firstly, he meant to snatch the necklace and, secondly, he intended to teach the deceased a lesson by “slicing his arms and legs”. However, whilst engaged on the first part of his plan, which did not involve an intention to cause grievous bodily harm, he accidentally stabbed the deceased in the neck before he had begun to embark on the second part. 24.Accepting that the wounding was an unlawful act, Mr Stirling submitted that the judge should have made clear to the jury that in such circumstances D1 may not have formed an intention, when the fatal wound was inflicted, to cause really serious bodily harm to the deceased. He argued that the judge had failed to tailor her summing up to the facts and had failed to bring home to the jury that this was a basis for finding D1 not guilty of murder but guilty of manslaughter. The mere recitation of the law relating to manslaughter, which he contended was what the judge had done here, was not a sufficient way of putting this defence to murder before the jury as they may not have understood on what basis they could convict D1 of manslaughter or why they should acquit D1 of murder. 25.In this regard, Mr Stirling relied on the Privy Council’s decision in Alexander Von Starck v R [2000] 1 WLR 1270 at 1275 where Lord Clyde said:
26.The primary question in D1’s case that we have had to ask ourselves is whether the judge’s directions gave proper regard to the defence to murder which had been advanced in D1’s case. 27.Mr Zervos SC, for the respondent, submitted in his written argument that the contention that there had been an accidental infliction of the neck wound was in a category described by Lord Clyde in Alexander Von Starck v R as “a possibility which can be seen beyond reasonable doubt to be without substance”. However, he submitted that the judge had nonetheless put the issue of an accidental infliction of the wound before the jury with appropriate directions in law. 28.In the summing up, following comprehensive directions as to the burden and standard of proof, the judge pointed out that it had been submitted on behalf of D1 and D2 that the prosecution had been unable to prove the charge of murder against them and that it was for the jury to decide whether to convict of murder or, as counsel on their behalf had argued, of manslaughter only. She later directed the jury that they could not return a verdict against any of the defendants which was “less favourable” than the verdict they returned against D1 so that if D1 was convicted of manslaughter the others could, at most, be convicted of that offence. 29.When giving directions as to murder, the judge said as follows:
30.These directions were followed by other standard directions in relation to the crime of murder. The judge then went into greater detail about joint enterprise stating that it meant:
31.The judge then gave an illustration of the way intent and motive are to be distinguished before moving onto manslaughter directions at which point she directed the jury:
32.These directions are not criticised in themselves by Mr Stirling whose complaint was that that they failed to put D1’s case into a context which would enable the jury to follow it with ease. However, this submission is not, with respect, borne out if the summing up is looked at as a whole. Further, the judge carefully itemised (at pages 35 and 36 in the appeal bundle) the passages in D1’s interviews where D1 had explained to the police his side of the story and, as Mr Zervos correctly remarked, D1’s various references to “accidentally” flicking, slicing or stabbing the deceased were all made in the context of a confession in which D1 had described how he intended to attack the deceased with a knife “to teach him a lesson” by slicing his legs and arms. 33.Shortly afterwards, the judge returned to matters of law, directing the jury as follows:
34.In this passage, we note in passing that the judge referred to D1’s description of himself as being a “little tipsy” and to the evidence of another witness that he had looked “drunk”, inviting the jury to take this into account on the issue of intent. This was a rather more favourable direction than was warranted as it had not been suggested at trial that D1 was unable to form an intent and this was not, therefore, an issue before the jury. In any event, it might have been more helpful to the jury, having raised the issue in the summing up, for the judge to have gone on to explain that even if D1 was in a ‘tipsy’ condition, he could still be capable of forming an intent and that a drunken intent is still an intent. 35.Later again, shortly before the jury retired to consider their verdicts, the judge summarised the law relating to murder and manslaughter by reminding the jury, in terms which closely resembled her earlier directions, of the salient features to keep in mind. 36.In our opinion, the jury had been given sufficient directions on the issue to be decided by them and how this should be approached. There was no misdirection on the law relating to that issue and nothing of any consequence had been omitted on the facts. We are satisfied, therefore, that the conviction of D1 can safely stand. 37.A subsidiary issue, raised by Mr Zervos, was whether the direction to convict D1 of either murder or manslaughter, without giving the jury the further option of acquitting altogether was technically correct in the light of the judgment of this court in HKSAR v Lui Tsi-fai [2003] 2 HKLRD 927 which was later confirmed by the Appeal Committee of the Court of Final Appeal (see: Lui Tsi-fai v HKSAR, FAMC 53/2003). We are not surprised that the judge directed the jury in the way she did as there was never any prospect of a complete acquittal of D1. Indeed, his own trial counsel had addressed the jury specifically inviting them to convict of manslaughter. 38.We are satisfied that there was never any prospect of an acquittal for D1 and, while there was a material irregularity at trial in that the jury were never informed that it was technically open to them to acquit D1 altogether, doubtless couched in terms which reminded them that it had never been suggested that D1 was entirely innocent of all blame, it is apparent that this irregularity was of no consequence in the particular circumstances of this case. 39.Accordingly, whilst we shall grant leave to D1, treating the hearing as the appeal we will apply the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap. 221. 40.D1’s appeal is dismissed. D2’s appeal 41.Mr Oderberg candidly and rightly conceded that D2’s ground of appeal was wholly dependent upon the success of D1’s counsel persuading us that the summing up had failed to provide adequate directions to the jury on the presentation of D1’s defence and, in particular, that there had been no intention to cause really serious bodily harm at the time D1 killed the deceased. He accepted, therefore, that if D1’s appeal failed on this point then equally the appeal of D2 must fail. This is plainly correct in the present case. D2 knew that D1 was armed with a knife and he had agreed to act as to lookout for D1 while D1 attacked the deceased with the knife. 42.We shall, however, grant leave in D2’s case for the same reason as we have done for D1. There was no suggestion at trial that D2 could be acquitted altogether and the judge’s direction that D2 was either guilty of murder or manslaughter caused him no prejudice. Treating the hearing as the appeal, we shall apply the proviso and dismiss D2’s appeal. D4’s appeal 43.It is convenient next to take D4’s appeal against conviction. Mr Hemmings, whilst aligning himself to the main ground of appeal advanced on behalf of D1 and conceding that the judge had summed up the parts in D1’s interviews where D1 had stated that he had stabbed the deceased accidentally, submitted that the judge had failed to direct the jury sufficiently on the burden and standard of proof when applied to the defence of accident. This may, he argued, have left the jury under the impression that it was for D1 to satisfy them that the fatal wound was unintentionally inflicted and, in this sense, the onus of proof had inadvertently been reversed. He suggested that this had possibly denied D4 the opportunity of being convicted of manslaughter and, for this reason, if D1’s conviction for murder was unsafe or unsatisfactory then the same would have to be said about D4’s conviction. In all other respects, Mr Hemmings accepted that the judge’s directions about D4’s case had been given with complete accuracy. 44.The case against D4 was that in the knowledge that D1 was armed with a knife and was intending to attack the deceased with it, she supplied D1 with information about the deceased’s movements to facilitate the attack. The only reason that the argument for D1 or the ‘reverse burden’ argument raised by Mr Hemmings could assist D4 was, as we have already indicated, that if D1 was acquitted of murder and convicted of manslaughter, the judge’s direction to the jury had been that, on the facts of this case, none of the co-defendants could be convicted of anything more than manslaughter. 45.The judge’s directions on the burden and standard of proof were as follows:
46.We have set out already (see: paragraph 29 above) the judge’s directions on joint enterprise in which the judge informed the jury that they could convict of murder or manslaughter if they were “sure that an accused was a party to a joint enterprise [in] which the deceased was unlawfully and deliberately dealt a blow with a sharp instrument which caused an injury resulting in death … even though the blow which actually killed the deceased was inflicted by another participant”. We have dealt already (see: paragraph 30 above) with the judge’s directions on manslaughter in regard to all the appellants. It was made abundantly plain in those directions that if D1 “did not intend to cause really serious injury to the deceased” that he could not be convicted of murder “but only of manslaughter … and in the circumstances of this case, neither can any of the other accused be convicted of murder”. Whilst the judge might have reminded the jury of the burden and standard of proof at some stage during her synopsis of the answers given by the appellants in their interviews, she chose to do this afterwards when saying:
47.Nothing said by the judge could, in our opinion, have given the jury the impression that, on any aspect of the case for any of the appellants, the burden of proof had shifted to the defence to establish the point that any of the appellants had tried to make. 48.Accordingly, while we shall grant leave to D4, treating the hearing as her appeal, D4’s appeal is dismissed. D3’s appeal 49.Mr Andrew Raffell put a number of grounds before us in addition to the point, common to all the appellants, which we have already indicated was without merit. In the 1st ground advanced on D3’s behalf, which was not put forward with any great enthusiasm, it was gently suggested that the judge had not “adequately and fairly” dealt with the “long, inconsistent, rambling and incoherent nature” of the interviews and the ways in which they may have come into existence. Considerable time at trial was taken up by the suggestions made on D3’s behalf that he had been subjected to pressure to provide answers to the police at a time when he was still affected by methamphetamine (‘ice’). The judge reminded the jury of the allegations which Mr Raffell had made and about the letter sent by Dr Lin at Lai Chi Kok Reception Centre to D3’s solicitors to the effect that a routine examination of D3 was “positive in amphetamine (ice)”. We shall say more about this aspect of the evidence in relation to other grounds of appeal. 50.All that we need to say in regard to this ground is that it was misconceived. 51.The only grounds which we considered in D3’s case to be arguable were the 2nd and 3rd grounds which were closely linked. In the 2nd ground, it was submitted that the judge failed to give a balanced summary of the interviews and, in the 3rd ground, it was submitted that “the judge failed to direct the jury in terms of HKSAR v Mok Tsan-ping [2001] 2 HKLRD 325 concerning the need for the appellant to know that D1 had a knife”. The last of these grounds, which was not elaborated upon by Mr Raffell in his written submissions, was answered by Mr Zervos in only a single line of his written reply by the comment that it was clear from D3’s out-of-court statements that “he knew that [D1] had a knife and that he was going to use it on the deceased to slash him”. 52.In order to provide a full answer to this ground, it is necessary to go to the text of D3’s admissions to the police to examine precisely what he did say. This is rendered more difficult than usual because they contained a number of inconsistencies. 53.Leaving aside a ‘reconstruction’ at the scene, when D3’s answers were largely inaudible or indecipherable on account of the background noise, in the first of D3’s interviews, on 13 October 2004 (Exhibit P79, pages 617-810 of the appeal bundle), D3 spoke (page 624) about “watching if any policemen were coming, helping Ah Ming by watching if any policemen were around”. 54.He then went into considerable detail about what he understood Ah Ming (D1) was going to do. These details were covered extensively in the judge’s summing up to which we shall turn later. In short, D3 told the police (page 624) that D1 wanted to give “several chops” to someone (page 625) who had “often bullied his sworn mother”. D1 had spoken (page 633) about wanting to kill the person and he (D3) had told D1 not to do that and, when he had persuaded him not to, D1 “promised [him] that he would just slash (him) a few times” (page 636). Then (at page 656), D3 set out what he understood D1 was going to do: “To my understanding, one was to rob the guy to money, one was to beat him and one was to chop him”. D3 agreed (page 657) that he had gone to Tsing Yi to act as a lookout “because [D1] wanted to harass the guy”. D3 (page 663) had refused to help D1 as a lookout if D1 was going to kill the victim and D3 had said “if yours is a small matter, (we) would not mind to act as lookout for you”. D3 said (page 664) that he had not thought D1 was “so fierce” and (page 667) that “the most would be … to watch if there was any policeman, to rob (him) of money, to beat him, gave him several blows, or to chop him a few times”. D3 told the police (page 676) that D1 had said he “wanted to kill” but he did not say that “he certainly would kill”. 55.As we have already indicated, we shall set out D3’s admissions in this interview more fully when we turn to the summing up but, aside from the confessions made by D3 that he was acting as a lookout for D1 who he knew was intent upon attacking the deceased in one form or another, D3 also said (pages 726-727) about D1 that he “thought [D1] was talking bullshit … that is to rob, to stab, to kill people etcetera. … I thought he was talking bullshit”. Later, they went to the ‘348’ discotheque (pages 730 – 731) where D3 heard D1 admit that “the man was killed”. D3 said (page 731): “Then I was very unhappy. I bloody left the disco”. D3 denied (pages 756-757) ever having seen the knife which had been used to kill although he had read in a newspaper that a butterfly knife was used. 56.In the second of his formal interviews (Exhibit P84 pages 844-1025 of the appeal bundle), conducted at 4.00 pm on 14 October 2004 and lasting 91 minutes, D3 provided an account along the following lines. He explained (page 851) how he had met ‘Ah Ming’ (D1) and ‘Fei Bo’ (D2) some days before the incident at Golden Era Plaza. He continued:
D3 explained (page 854) that the reason D1 said that he wanted to kill this person was “a person had caused his sworn mother to suffer so much”. He continued by saying:
57.D3 then repeated how D1 had told him that someone had caused his sworn mother to “suffer much” and that D1 had said: “I want to kill him”. He said that D1 had been talking seriously at the beginning (page 859) when he spoke about killing someone but then he said:
58.After D3 had again refused to help D1 kill the person D1 was talking about, he said (page 862) that D1 “took the chance to begin watering down the matter”, and he added:
59.The officer who was questioning D3 then turned his enquiry to the conversation which D3 had with D1 and D2 prior to the killing itself. 60.D3 described how D1 called him to go to the fruit market (page 870) where he found D2. D3 said (at page 870): “We had a rough idea about what he wanted to discuss. D3 told the police:
61.D3 estimated (page 872) that the time of this conversation with D1 was at “around eleven or twelve o’clock”. He went on to deal with the clothing worn by D1 before saying:
When D3 went to the scene in Tsing Yi with D2, they were “idling there … to see whether there was any policeman” (page 889) before D1 arrived in a taxi. They then boarded the same taxi to hear D1 explain how he was to be alerted if they saw any police around. D3 said (page 893) that he did not pay attention, adding that:
62.Following this part of the interview, there was lengthy questioning about the taxi driver by whom D1 had been driven to the scene and took all three men away afterwards. D3 then described the place they had gone to afterwards for “fun” called ‘348’. After that, D3 said:
63.D3 said (page 961) that he had not seen D1 again until he returned from the Mainland and saw D1 at hospital after D1 had been arrested. Then, he said, “we agreed on (the facts of) the statement”. He explained (page 962) that by this he was to say to police “we only saw [D1] at ‘348’”. He added (page 964) “(we should) say that he had not gone to Maritime Square”. He said, also (page 966), “we never thought he would really kill someone”. He had found this out from reading the newspaper (page 968) and had not asked D1 if he had done so because he had earlier “refused him” when D1 had said he wanted to kill someone. He went on to say:
64.When D3 was asked (page 981) why he had assisted D1 to do this kind of thing unconditionally, he replied:
65.D3 went on afterwards to repeat how he had refused to hold the deceased while D1 killed him and how D1 had gone on to ask him to be “the watcher” and said that D2, had “a strong build to grab”. When this was declined, D1 had said that he would go over to kill [the deceased] and both D2 and D3 “refused him”. This was when (pages 984-985), as D3 put it, D1 “spent time in scheming (how he could) coax us … as lookouts for him”. 66.When D3 was asked (page 984) if these were things he only felt after the event, he replied that “on the day, I still thought that he had said (he) might … want to snatch money …” 67.Towards the end of the interview, D3 asked to be allowed to view the ‘reconstruction’ tape which had been recorded in very noisy conditions. His comments about that tape in the final interview amounted to clarification about what he had been saying at the time of the reconstruction. The replies he gave provided nothing which was not already known from the answers he had provided in his earlier interviews. 68.Looking, next, at the suggestion that the judge had failed to give a balanced overview of D3’s interviews, Mr Raffell’s point was that the judge had only highlighted the parts of D3’s main interview which pointed to his guilt. This submission has to be considered, as Mr Raffell conceded, in the light of the fact that the jury had copies of the transcripts of interviews and, importantly, the direction given by the judge that the jury should take into account the comments which Mr Raffell had made in the course of his lengthy final speech about the answers D3 had given to the police. 69.This brings us, therefore, to the way the judge summed up the evidence against D3 based on his answers to the police. The judge first of all covered a large number of matters which Mr Raffell had dealt with in cross-examination, alleging misconduct on the part of the police before coming to the content of D3’s interviews. The judge also dealt with the possibility (because of the analysis of a sample of D3’s urine) that D3 was affected by the consumption of dangerous drug at the time of his first interview. The judge then directed the jury in these terms:
70.The judge then briefly reminded the jury about the approach taken to the interviews by counsel for the prosecution and by counsel for D1 and D2 before saying:
71.After these introductory words, the interviews of each appellant were concisely dealt with. In regard to D3, the judge said:
72.The judge, rightly, did not trouble the jury with the contents of the ‘reconstruction’ videotape and the short summary given of the final interview took the matter no further. 73.The question which remained to be answered, therefore, was whether the directions in D3’s case provided sufficient guidance on the law of murder bearing in mind the diverse replies made by D3 as to what he perceived to be the nature of D1’s purpose as D3 acted as a lookout, keeping watch for the presence of police. 74.In HKSAR v Mok Tsan-ping and Ors [2001] 2 HKLRD 325, this court was concerned with an allegation of murder which the prosecution had alleged was committed by the three appellants in a joint enterprise. The fatal wound was inflicted by D3 who had stabbed the deceased twice in the back. D1 was carrying a stool and D2 was unarmed but both had joined D1 in pursuit of the deceased immediately before he was killed. It was submitted in that case (at page 330) that whilst the judge had given proper directions in general terms as to joint enterprise, “at no stage had she specifically directed the jury that they should be sure, before convicting of murder, that D1 was aware of the knife in D3’s hand”. The respondent conceded that this omission from the summing up was fatal to the conviction of D1. The judgment in that case continued (at page 332) as follows:
75.As we have seen from the passages cited earlier, taken from the judge’s directions as to what the prosecution had to prove to establish murder, it was made abundantly plain that a person would be criminally liable for the acts of another if:
76.This was immediately followed by the direction:
77.The judge carefully set out the difference between a verdict of murder as opposed to manslaughter and in the present context we are satisfied that she had provided ample directions in law to explain to the jury what had to be proved against D3. The confessions made by D3, which the jury plainly accepted, contained an ample basis for finding that D3 was engaged on an enterprise with D1 and D2 which involved acts of a type which he could foresee as a possible incident of that joint venture, namely the use of a knife. This emerges from numerous of the answers given by D3 to which we have referred. Equally, the judge was careful to explain, having dealt with the necessity of giving separate consideration of the evidence against each appellant, that D3 could be convicted of manslaughter, as we have said, if:
78.In all the circumstances, while we shall give leave to D3 on this ground, we are satisfied, treating the hearing as the appeal, that his appeal must be dismissed. Conclusion 79.For the reasons we have set out, the appeal of each appellant must be dismissed. 80.Finally, we observe that D4 has also applied for leave to appeal against her sentence of life imprisonment. We need to say no more than to confirm that as the sentence was one which is mandatory there can be no appeal against it. Accordingly, this application is dismissed.
Mr Kevin P Zervos, SC, SADPP, and Ms Jasmine Ching, GC, of the Department of Justice, for the Respondent. Mr William Stirling, instructed by Messrs T C Lau & Co., assigned by Director of Legal Aid, for the 1st Appellant. Mr Keith Oderberg, instructed by Messrs Simon Si & Co., assigned by Director of Legal Aid, for the 2nd Appellant. Mr Andrew Raffell, instructed by Messrs C D Kan & Co., assigned by Director of Legal Aid, for the 3rd Appellant. Mr John Hemmings, instructed by Messrs Louis K Y Pau & Co., assigned by Director of Legal Aid, for the 4th Appellant. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||