HKSAR v. Chan Ka Wing and Another

caCC 201/2007

in the high court of the

hong kong special administrative region

court of appeal

CRIMINAL appeal no. 201 of 2007

(on appeal from HCCC NO. 238 of 2006)

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BETWEEN

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Before: Hon Stuart-Moore VP, Stock and Hartmann JJA in Court

Date of Hearing: 26 March 2009

Date of Judgment: 26 March 2009

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J U D G M E N T

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Hon Stock JA (giving the Judgment of the Court):

Introduction

1.In June 2007 both applicants were convicted of manslaughter after trial by McMahon J and a jury.  The first applicant (D1) now seeks leave to appeal against conviction and the second applicant (D2) now seeks leave to appeal against sentence out of time. 

2.The applicants faced trail upon an indictment that alleged that on 9 June 2006 they murdered Pun Fuk-kwan, then aged 16 years.  D1 was aged 14 years and D2 18 years.  They pleaded not guilty to murder but D2 entered a plea of guilty to manslaughter which was not accepted by the prosecution.

The prosecution case

3.The killing arose from a dispute between two gangs on 4 June 2006.  The applicants belonged to a group who were identified at trial as the Ah B group and the deceased to a group which at trial was called the KFC group.

4.Given the narrowness of the grounds of appeal, it is unnecessary to rehearse the facts in much detail.  It suffices, for present purposes, to repeat the helpful summary of the facts which the judge stated in his sentencing remarks as those that must have been the basis upon which the applicants were acquitted of murder and convicted of manslaughter:

“… both defendants were members of a joint enterprise to attack an opposing group of teenages (the KFC group) in the vicinity of Fanling KCR station.

After a series of verbal confrontations between the KFC group, of which the deceased was a member, and another group of teenagers at Cheung Wah Estate, which is adjacent to Fanling KCR station, both defendants and two older men (the Mok brothers) who also lived in or nearby Cheung Wah Estate, drove by taxi to intercept the KFC teenagers at [the] station to where they had retreated after the initial confrontations.  The case of each defendant was that the Mok brothers and the other defendant were armed with water pipes although he was not.

Upon arrival at [the] station, the Moks and both defendants alighted from the taxi and chased those persons from the KFC group who they could see.  The deceased was caught.  He was eventually beaten with water pipes, suffered multiple injuries to his body, including a fragmented skull and severe brain injuries.  He died several days later.

The jury’s verdict reflected the fact that there was no reliable evidence that either defendant actually struck the deceased with water pipes, though each was aware that water pipes would be used in any attack.  The difficulty the jury faced in deciding this case was that there was no direct evidence of what the exact role of each defendant was in the assault on the deceased and that it was entirely possible that each defendant and each of the Mok Brothers had become involved in the attack at different times.

In those circumstances, the jury were plainly not satisfied it had been proven beyond reasonable doubt that either defendant foresaw a real risk of really serious injury being occasioned to the deceased, though they must have been satisfied that it was obvious that some significant harm would be caused to anyone subjected to such an attack. …

Both defendants were part of an organised expedition to intercept and attack members of the opposing group with water pipes.  Though, as I have said, there was no reliable evidence either defendant carried and used a water pipe in that attack, the evidence of the first defendant to the contrary plainly being rejected by the jury, there was evidence that both defendants had been close enough to the assault on the deceased to have received small amounts of blood on their clothing and shoes.

…. Both defendants were clearly present at the scene of that beating [with water pipes] and indeed, the second defendant was the one who actually caught the deceased and, on his own admission, began to punch and kick him.”

5.A number of members of the KFC group were called to testify, each saying that they saw these two applications boarding the taxi containing the four men who eventually attacked the deceased.

6.There was a further witness So Ka-chun (PW6 at trial) upon whose evidence the application of D1 concentrates.  He worked at KFC and he knew members of both groups including the applicants and one of the Mok brothers.  In his testimony, he described how after he had witnessed an initial contretemps between the groups, the applicants and one of the Mok brothers arrived and he explained to them what had just happened.  Later he saw both applicants and one of the Mok brothers at a stage when water pipes were produced from a rucksack and he said that both applicants took hold of water pipes which were wrapped in newspaper.  Then the applicants and the Mok brothers boarded a taxi.  It was common ground that the applicants and the Mok brothers boarded the taxi and went to a place where the deceased was attacked.

The defence cases

7.D1’s case was that whilst D2 took hold of a water pipe, he, D1, did not.  He did not really chase the deceased but saw the deceased on the ground with D2 striking him.  D1 said that he tried to pull D2 away and he himself never struck the deceased.  When they boarded the taxi he had no idea, even though he knew there were water pipes in the hands of his fellow passengers, that they were going to assault anyone.  He also ran a defence of duress, asserting fear of the Mok brothers.

8.D2 did not testify that the effect of what he said to the police in interviews was that he was the only one of the passengers in the taxi who did not have a water pipe.  His case was that D1 struck the deceased with a water pipe and that he only kicked the deceased, thereby suggesting that he was not party to any intention to cause grievous bodily harm and did not foresee such harm.

D1’s ground of appeal

9.The single ground of appeal advanced on behalf of D1 (another ground has been abandoned) arises from that part of the evidence of So, in which So testified that on the morning after the attack, D1 spoke to him on the telephone and told So not to go to Cheung Wah Estate for a while.  In his evidence in-chief he said that that was all the D1 said; nothing else.  However, in the course of cross-examination of So on behalf of D2, So was shown a witness statement which he had made in which he had stated that during that telephone conversation D1 had said that he had beaten and injured somebody and, in the cross-examination, So adopted the accuracy of that part of the witness statement.  Mr Poon, acting on behalf of D1, applied to cross-examine So as to that, but the judge declined his application.  The contention is that “the… judge should have granted leave to D1’s counsel to cross-examine [So] on this important piece of evidence.”

The events at trial

10.Since Mr Poon complains that the decision of the judge was a denial of the fundamental right of a defendant to cross-examine a witness, it must at once be stated that Mr Poon was not denied the opportunity to cross-examine the witness: he cross-examined him.  What he sought and what he was denied was the opportunity to cross-examine him twice.  Since he acted for D1, it was in the natural order of things that he should cross-examine So first and that counsel for D2 should cross-examine second.  The complaint is that he was not allowed another go.

11.It must further be noted at the outset that counsel for D2 had forewarned Mr Poon that he intended put to So in the course of cross-examination the statement which contained the damaging remark about D1’s admission in the telephone conversation.

12.Mr Poon objected at trial to the proposed course.  That is to say, he objected to the proposal that counsel for D2 adduce evidence from So of D1’s admission in the telephone call.  He objected upon the basis that counsel for D2 “could not possibly have any instruction about the phone conversation.”  The judge pointed out, not surprisingly, that counsel for D2 was surely “entitled to use as part of his case anything that the police have unravelled during the course of their investigation.”  Mr Poon did not agree.  To illustrate the obvious error in Mr Poon’s contention, the judge postulated that if the police had found a bloodied metal pipe in D1’s flat, counsel for D2 would be able to have that evidence adduced; but Mr Poon said that that was different, for in the present case what was at issue was “just the statement of [So] not some evidence found by the police.”  One cannot, with respect, be other than disturbed that such fundamentally misconceived propositions were advanced in a criminal trial, let alone on behalf of a 14-year-old facing a charge of murder.

13.Then Mr Poon suggested to the judge that if he was minded to allow counsel for D2 to cross-examine So on his statement to the police, he, Mr Poon, “should be allowed to ask questions again on this point because obviously I would not touch on this point on my own.”  The judge said that it was a matter for him, Mr Poon, whether in his cross-examination he touched upon the point or not but that he, the judge, did not see why Mr Poon should be entitled to re-examine, as it were.  Mr Poon was on notice of the intended course and he could conduct his cross-examination accordingly.  The judge was of the opinion that the statement of the witness to the police, if adopted by the witness in evidence, was relevant and admissible and he did not see how he could properly grant to Mr Poon a right to conduct a second bout of cross-examination without then giving counsel for D2 a right thereafter to further cross-examine.

14.In due course, Mr Poon commenced his cross-examination of So, and it is evident from the transcript of So’s evidence that the intent of Mr Poon’s cross-examination of So was to cast D2 in a culpable light.  Thus, for example, he tried to establish that D2 was closely affiliated to one of the Mok brothers, a bullying triad.

15.Mr Poon then introduced the witness statement made by So on 6 June 2006; the very witness statement that contained the averment about the telephone conversation that Mr Poon wanted excluded.  He did so in cross-examination of So in order to show that in that statement So had not mentioned anyone holding water pipes; this in an attempt to undermine So’s testimony that he had seen D1 holding one of the pipes, an attempt further advanced by establishing in cross-examination that the situation was somewhat chaotic so that So might be mistaken as to who was and who was not carrying a water pipe.  He then put to So the suggestion that D2 had held a pipe but not D1.  It is clear therefore that each defendant was exculpating himself and inculpating the other.

16.Mr Poon then turned to the question of the telephone conversation between So and D1 on the morning after the attack and sought to establish that since the conversation was a long time ago, and since So had made no record of the conversation, he could not quite remember what was said; his unreliability being further demonstrated by the fact that in his police statement he had not mentioned anyone holding water pipes.  So said that he had not mentioned water pipes because “it was very chaotic at the time so I had a confusing mind, so there were a number of things which I had remembered wrongly.”

17.Counsel for D2 then cross-examined So.  He established some uncertainty in So’s evidence that D2 had also telephoned him and then put to him the statement of the witness of 6 June in which he had said that D1 had stated that he had beaten and injured someone.  So agreed that that is what D1 had said in the conversation.

Analysis

18.In his written submissions, Mr Poon seeks to take us to a series of authorities about the fundamental right to cross-examine and its importance.  None is to the point because Mr Poon was not denied the opportunity to cross-examine.  Such problem as he suggestedly faced was merely a product of the normal order in which cross-examination takes place.  There was no application to change the order of cross-examination and even if there had been it is unlikely to have been successful, not least because Mr Poon announced that he intended to use his own cross-examination to cast D2 in a poor light.  In the cross-examination he did conduct, he utilized for his own client’s benefit the very statement which he said ought not to have been used by counsel for D2.  What is more, in anticipation of the cross-examination of which he had been forewarned, he established from the witness, So, no more than he could possibly have hoped to establish in the further cross-examination which he says was wrongly denied him, namely, that no contemporaneous note was made of the telephone conversation, that the events were a long time ago and that his memory about them less than clear.  It is difficult to know what advantage beyond that he could hope to have achieved in further cross-examination: indeed he ran the risk that in the course of that further cross-examination, had it taken place, So would merely have cemented what he had told counsel for D2.

19.We note how the judge, in an excellently clear summing up, a model of its kind, brought home to the jury the inconsistencies on this point within the evidence of So.  He said:

‘Now, bear in mind in his [So’s] evidence in chief he said that nothing else had been said during that telephone conversation with the 1^st defendant other than that he was not to go back to Cheung Wah Estate for a while.  It was only in cross-examination after he had been shown his witness statement that he had agreed that the 1^st defendant had also mentioned beating and injuring someone.  So there is an inconsistency in his evidence here between his evidence in chief and his cross-examination by [counsel for D2].  It is a matter for you to decide whether that inconsistency renders his evidence unreliable in this particular regard.’

20.He later drew the attention of the jury to what Mr Poon had said about this evidence:

‘Mr Poon particularly reminds you that [So] only said the 1^st defendant had admitted to him during their telephone conversation that he had hit someone after he had been … pushed into doing so by [counsel for D2].  Mr Poon suggests to you that you ignore this as evidence against the 1^st defendant as it was inconsistent with [So’s] evidence in chief.’

21.The judge thereby highlighted the points in D1’s favour in relation to this telephone conversation that had been established by the evidence including the cross-examination conducted of So by Mr Poon.  Mr Poon could not have established more by the further cross-examination which he had wanted to conduct.  In any event, one is bound to say that, looking at the evidence against D1 in the round, this particular item of evidence by So pales into insignificance by comparison with the evidence implicating D1 in the culpable homicide of the deceased.

Conclusion

22.There is in our judgment no merit in the ground advanced and D1’s application for leave to appeal against conviction is dismissed.

D2: Sentence

23.On 14 June 2007, McMahon J passed sentence upon both applicants.  He described the attack upon the deceased as “savage and merciless” and whilst, in the light of the verdicts returned by the jury, he was bound to pass sentence on the footing that neither foresaw a real risk of really serious bodily injury at the outset of the attack, both were present and took part in it, an attack that resulted in a young boy losing his life.

24.The judge took into account the age of D1 at the time of the offence, namely, 14 years; and the fact that D2 pleaded guilty to manslaughter at the outset.  It was, said the judge, a particularly bad case of its type.

25.In accordance with the approved approach to sentencing for the offence of manslaughter, the judge did not nominate a starting point.  In relation to D1 he imposed a sentence of 6 years’ imprisonment and in relation to D2 a sentence of 7 years’ imprisonment.

26.D2 now seeks leave to appeal out of time against that sentence.

27.The basis of the application is the significant assistance rendered by D2 to the authorities since sentence was passed.

28.Between September 2007 and April 2008, D2 provided five statements to the police that gave details of the incident in respect of which he had been convicted and which specified the roles played by the Mok brothers.  The brothers were apprehended and were tried for the offence of murder before McMahon J and a jury.  D2 gave evidence for the prosecution at trial.  Mr Zervos SC, for the respondent, acknowledges that D2 was a key witness for the prosecution in that trial and was the only witness who was able to testify how the two brothers attacked the deceased with water pipes.  He provided detailed evidence, which included evidence of the brothers themselves beating the deceased, although he said that the younger Mok brother did not hit the deceased on his head, and that the younger brother’s attack was not very hard: this may account for the verdict of manslaughter in relation to that defendant.  In his testimony, D2 admitted taking part in the assault on the deceased, although he denied using a water pipe.  The judge described the reliability of D2’s testimony as “a very important issue in this trial.”  The case of the brothers was that they were at the scene but that they did not participate in the fatal attack but that they had tried to stop D1 and D2 from attacking.

29.On 8 August 2008, the elder Mok brother was convicted of murder and the younger was convicted of manslaughter.

30.D2’s application for leave to appeal against sentence is dated 19 March 2008.  The application was made before giving evidence in the Mok trial, but in anticipation of doing so.

31.Whether a court will entertain an application for leave to appeal against sentence out of time and, more particularly, in relation to matters arising after sentence, will depend on the circumstances of each particular case: see HKSAR v Y [2005] 3 HKC 337.  In this particular case, the events giving rise to the application followed closely upon D2’s conviction and it is understandable that the applicant held his hand in filing the application until such time as he knew that he would in fact be a prosecution witness, a delay that in any event was only a matter of months.  We take the view in those circumstances that this is a case which can appropriately be dealt with by this court rather than by an application to the Executive.

32.The co-operation of D2, most particularly his provision of testimony against the leader of the gang and the instigator of the attack, namely, the elder Mok brother, a person aged 24 years with a bullying reputation, is an act of some significance and merits a material reduction in sentence.  In our judgment the appropriate sentence should now be one of 5 years’ imprisonment.

33.Accordingly, we grant D2 leave to appeal against sentence, treat the hearing of the application as the appeal, allow the appeal and substitute for the term of 7 years’ imprisonment imposed by the trial judge a term of 5 years’ imprisonment.

Mr. Jackson POON instructed by Messrs. Louis K.Y. Pau & Co. assigned by Director of Legal Aid, for the 1^st Applicant

Mr. Phillip ROSS instructed by Messrs. Tang & Lee assigned by Director of Legal Aid, for the 2^nd Applicant

Mr. Kevin P Zervos SC, DDPP, of Department of Justice, for the Respondent