Read the full judgment text of CACV 27/2009 on BabelCite. This Court of Appeal judgment was delivered on 20 January 2011 before Hartmann JA, Lunn J, Barnes J.
Criminal law – murder – joint enterprise – secondary party liability – withdrawal from joint enterprise – 'no case to answer' – identification from CCTV – sentencing of juvenile offenders for murder – sum of material facts: planned revenge attack by 'Billy's group' on rival group in Ngau Tau Kok housing estate on 25 August 2007; 17-year-old Wu Yu Hei fatally beaten with metal water pipes after tripping while fleeing; metal pipes distributed in rear lane of Choi Lung Amusement Games Centre; 3rd and 4th applicants carried out reconnaissance to identify the rival group at Lotus Tower. Legal issues and holdings: (1) whether the trial judge erred in refusing the 3rd applicant's submission of no case to answer – yes; there was no evidence on which a jury properly directed could find that the 3rd applicant foresaw the use of weapons as a possible incident of the joint enterprise, applying Chan Wing Siu v R [1985] AC 168, Hui Chi Ming v R [1992] 1 AC 34, and R v Powell and English [1997] 3 WLR 959; the 3rd applicant's understanding was that the attack would be a fist fight and there was no direct or properly inferable evidence that he was informed weapons would be used. (2) Whether the trial judge erred in failing to direct the jury on withdrawal from joint enterprise for the 3rd and 4th applicants – no material non-direction; applying R v Whitehouse (1941) 1 WWR 112, R v Becerra and Cooper (1976) 62 Cr App R 212, and R v O'Flaherty [2004] 2 Cr App R 315, withdrawal requires, where practicable and reasonable, timely and unequivocal communication of intent to abandon; the conduct of the 3rd and 4th applicants (communicating 'we are here if you need us', not replying, then later rejoining the group) was incapable of amounting to such unequivocal withdrawal. (3) Whether the judge erred in failing to direct the jury to ignore the 2nd applicant's identification of the 5th applicant in CCTV photograph 64 as wholly unreliable – the direction ought to have been given but the omission was not material in light of overwhelming other evidence placing the 5th applicant in the armed attack group. (4) Whether sentences imposed on the 2nd, 4th and 5th applicants were manifestly excessive – no; the trial judge had properly taken into account the different roles of each applicant, and the English juvenile sentencing regime in R v Sullivan [2005] 1 Cr App R 3 was of limited use in Hong Kong, following HKSAR v Yeung Mok Yeh. Outcome: 3rd applicant's conviction for manslaughter quashed and 5-year sentence set aside; 1st, 2nd, 4th and 5th applicants' applications for leave to appeal conviction and sentence dismissed. Sentences: 1st applicant (aged 18) – life imprisonment (mandatory under Cap 212 s.2); 2nd applicant (aged 17) – 20 years' imprisonment; 4th applicant (aged 16) – 16 years' imprisonment; 5th applicant (aged 15) – 18 years' imprisonment. Court of Final Appeal subsequently refused leave to appeal by the 1st, 4th and 5th applicants (FAMC 19 & 20/2011, 20 November 2011).
Legal issues: No case to answer on joint enterprise foreseeability of weapons for secondary party · Direction on withdrawal from joint criminal enterprise · Reliability of identification from CCTV photograph · Whether 18-year sentence for 15-year-old murder convict was manifestly excessive
Outcome: 3rd applicant's conviction for manslaughter quashed and sentence set aside; applications for leave to appeal by 1st, 2nd, 4th and 5th applicants against conviction and sentence dismissed.
Cites 1 case