HKSAR v. Chu Yiu Keung and Others

CAC C 27/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 27 OF 2009

(ON APPEAL FROM HCCC NO. 85 OF 2008)

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BETWEEN

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Before: Hon Hartmann JA, Lunn J and Barnes J in Court

Dates of Hearing: 14-16 July, 6 September and 17 December 2010

Date of Handing Down Judgment: 20 January 2011

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J U D G M E N T

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The judgment of the Court (to which each member has contributed):

Introduction.

1.Late on the night of 25 August 2007, within the precincts of a housing estate in Ngau Tau Kok, a group of young men, a number of whom were armed with metal water pipes, ambushed a second group of youths.  The members of the second group fled.  In doing so, however, one of their number, a 17-year-old man by the name of Wu Yu Hei, tripped and fell.  He was then set upon by a number of the attacking group, receiving multiple blows to his head from the metal pipes carried by his attackers.  Wu died of his injuries in the early hours of the following morning at the Queen Elizabeth Hospital.

2.On 21 January 2009, following a trial in the Court of First Instance before Mrs. Justice Bokhary and a jury, the 1^st, 2^nd, 4^th and 5^th applicants were convicted of the murder of Wu.  The 3^rd applicant was acquitted of murder but convicted of the alternative offence of manslaughter.

3.The 1^st applicant was aged 18 at the time of the murder and received the sentence prescribed by law, that of life imprisonment. However, the 2^nd, 4^th and 5^th applicants were aged under 18.  Having regard to their respective roles in the carrying out of the murder, the judge sentenced the 2^nd applicant to 20 years’ imprisonment, the 4^th applicant to 16 years’ imprisonment and the 5^th applicant to 18 years’ imprisonment.  The 3^rd applicant, who was convicted of the alternative offence of manslaughter, was sentenced to 5 years’ imprisonment.

4.Each of the applicants sought leave to appeal his conviction.  With the exception of the 3^rd applicant, each also sought leave to appeal the sentence imposed upon him.

Allowing the 3^rd applicant’s appeal against conviction.

5.During the course of the hearing, having heard submissions, we granted the 3^rd applicant’s application for leave to appeal his conviction and, treating the application as the appeal, quashed his conviction, setting aside the sentence of five years’ imprisonment.  We said that we would give our reasons later and do so in this judgment.

The broad factual background.

6.At all material times, the five applicants were associated in a group of young men, a number of whom were friends from school.  The apparent leader of this group, certainly an individual who wielded much influence in it, was Lai Kin Pong, known as Billy or Ah Pong.  During the course of the trial, this group was identified as ‘Billy’s group’.

7.About a week before the night of 25 August 2007 when Wu was attacked and killed, there was a confrontation in a cyber cafe in Kwun Tong called the 365 (‘the 365 incident’). The confrontation was between Billy together with certain members of his group and members of another group seemingly led by a young man known as Lo Shu Fat.  Wu was a member of Lo Shu Fat’s group and was present at the cyber cafe that night.  It seems that initially a few punches were thrown.  However the two groups quickly separated and a stand-off took place outside the cyber cafe with both sides seeking reinforcements.  During this stand-off, Wu seized a metal pole, using it to threaten Billy and the members of his group.  However, it was not used as a weapon of attack and was taken from Wu by members of his own group.  Indeed, by the time the two groups separated and went their own ways there had been no further acts of violence.

8.A few nights later, while certain members of Billy’s group were playing video games in an establishment called the Kam Tin Amusement Game Centre, they were joined by Billy himself.  Billy reported that a night or so before he had been attacked in a park by about 10 members of Lo Shu Fat’s group.  Billy, it was said, was angry and had bruising to his face as a mark of the beating he had taken.  Billy, however, made no suggestion that his attackers had carried any sort of weapons nor did he complain of any serious hurt.

9.On the night of 25 August 2007 itself, Billy gathered his associates including the five applicants.  The evidence showed that he had planned a revenge attack on members of Lo Shun Fat’s group.  The plan included the recruitment of a number of men from outside the group, men who, to all appearances, were a few years older.  One of them was Ah Lok.  Some of these men – strangers to the applicants - arrived that night by car.  They actively participated in the attack.

10.There could be no attack of course until members of Lo Shu Fat’s group had been located and identified.  This reconnaissance task was in part delegated to the 3^rd and 4^th applicants who were able to identify Lo Shu Fat’s group gathered at the podium area of a residential block known as Lotus Tower.

11.Once members of Lo Shu Fat’s group, which included Wu, had been identified, Billy and those who were to take part in the attack gathered in a rear lane adjacent to another amusement centre known as the Choi Lung Amusement Games Centre.  It was here that the water pipes were drawn from a bag and distributed.  It was from here also that the attacking group set out in order to carry out the attack.   

12.After the attack – Wu having been fatally beaten - the attacking group escaped the area.  Billy and all of the applicants were among those who made their way to a noodle shop in Tai Kok Tsui (‘the noodle shop’) for refreshments and a discussion of the night’s events.  

The case against the applicants and their respective defences.

13.The prosecution case against the five applicants relied primarily on the evidence of three accomplice witnesses who themselves had played a role in the attack, who testified under conditional immunities from prosecution, and on admissions made under caution by each of the applicants other than the 2^nd applicant.  All the applicants chose to testify in their own defence.

14.By way of summary, the case against each of the applicants and their respective defences may be described as follows:

The 1^st applicant

15.The case against the 1^st applicant was to the effect that, at Billy’s behest, he went to the rear lane of the Choi Lung Amusement Games Centre where 10 or so others gathered.  While there, he heard Billy speak of the fact that a few nights earlier he had been assaulted by Lo Shu Fat’s group and heard one of the group say that the rival group needed to be taught a lesson.  Although the 1^st applicant did not himself take a metal pipe as a weapon, he saw others drawing them from a bag.  Accordingly, while in the lane, the 1^st applicant learnt that the purpose of the gathering was to launch an attack on the rival group using metal pipes.  He appreciated that the use of those pipes was capable of causing serious bodily harm.  He accompanied the group of armed men from the rear lane to Lotus Tower and followed them when they rushed down to chase members of the other group of young men.  When the attack took place, although he was under no direct compulsion to remain, he nevertheless remained with the attacking group.  While Wu was beaten, the 1^st applicant stood watching, standing on some semicircular stairs next to two of the accomplice witnesses, namely Li Cheuk Wa and Chui Cheuk Hin.  After the attack, he went with others to the noodle shop.  It was therefore the prosecution case that the 1^st applicant participated in the joint venture to carry out the attack, knowing that serious injury may be caused to the victims, and, even if he had not himself attacked Wu, by his presence he did and intended to encourage others to do so.

16.It was the 1^st applicant’s defence that, although physically present, he did not take a weapon and did not do or say anything in any way to assist or encourage the others who carried out the attack.  While he saw the fatal attack take place, he stood some 30 m away, being no more than a passive witness.  In the circumstances he did not intend to encourage nor did he encourage the others and, as such, was not a member of the joint enterprise.

The 2^nd applicant

17.The 2^nd applicant made no admissions under caution.  The prosecution case against him was therefore based on the evidence of the three accomplice witnesses.  The combined testimony of these three witnesses was to the effect that the 2^nd applicant went to the rear lane of the Choi Lung Amusement Games Centre with the group of young men where he took two metal pipes from a bag placed near a motorcycle, one of which he handed to the 5^th applicant.  When the attack took place he rushed forward with the group of men armed with water pipes who chased Wu until he fell to the ground.  There, first Billy and then Ah Lok struck him multiple blows with the respective metal pipe each held.  As they did so the 2nd applicant joined in the attack on Wu.  He carried a metal pipe.  Li Cheuk Wa (PW 22) saw him kicking Wu's leg.  Chui Cheuk Hin (PW 23) saw him strike Wu’s legs several blows with a metal pipe.  A fourth unidentified assailant joined in the attack on Wu.  The four men were attacking at the same time.  When the attacking group fled, the 2^nd applicant fled with them, discarding his weapon and making his way to the noodle shop.  It was the prosecution case that the 2^nd applicant took a leading role in the joint venture, not only carrying a weapon himself but joining others in the attack on Wu.

18.The prosecution also relied on evidence adduced in the testimony of the 5^th applicant as to the conduct and role of the 2^nd applicant.  The 5^th applicant went to the Choi Lung Games Centre at the request by telephone of the 2^nd applicant.  At the request of the 2^nd applicant, a group of 11 or 12 young men that had gathered in that Games centre went to the rear lane of the premises.  On Ah Lok’s instruction, the 2^nd applicant retrieved a bag that was near to a motorcycle from which he handed the 5^th applicant a metal pipe.  Billy, Ah Lok and others also took pipes from the bag.  Ah Lok led the group of men armed with pipes, including the 2^nd applicant, to Lotus Tower.  There, the group rushed down and chased the other group of young men.  Wu fell to the ground whilst being chased by Ah Lok, in which position he was attacked first by Ah Lok and Billy and then by the 2^nd applicant and an unidentified fourth assailant.  He saw the 2^nd applicant kick Wu’s lower body several times and hit him once in that position with an iron pipe.

19.In his defence, the 2^nd applicant denied knowing that Billy had earlier been assaulted and therefore had a reason to seek revenge.  While he admitted helping to distribute four metal pipes, he said he only did so because he was under instructions to do so from Ah Lok.  He thought that the pipes would be used to point out and threaten people.  He had not expected them to be used to hit a person.  He denied that he had carried a metal pipe himself or that he had taken any part in attacking Wu.  He was scared of the persons who had armed themselves with water pipes.  It did not occur to him why he had followed them.  It was his defence that, while physically present, he had not been a member of the joint enterprise.

The 3^rd applicant

20.The prosecution case against the 3^rd applicant was to the effect that he too was an active participant in the joint venture.  While the 3^rd applicant was not present when the attack itself took place, he knew of the history leading up to the attack.  He had been present at the 365 incident.  He had also been at the Kam Tin Amusement Game Centre when Billy reported that he had been attacked by about 10 members of Lo Shu Fat’s group.  On the night of 25 August 2007 he was again at the Kam Tin Amusement Game Centre when Billy intimated that an attack was planned on Lo Shu Fat’s group that night.  While the 3^rd applicant may not have been fully committed to taking part in the attack itself, he nevertheless willingly played an important role in the joint enterprise by being a member of the reconnaissance group which located and identified the members of Lo Shu Fat’s group.  After the attack, even though he and the 4^th applicant had seen police gathered in the area where the attack had taken place and had seen a person lying on the ground, he nevertheless joined the other members of Billy’s group at the noodle shop.

21.There were two limbs to the defence of the 3^rd applicant.  First, while he knew that Billy was planning an attack that night on members of Lo Shu Fat’s group, he was never told, nor did he have any reason to think, that weapons would be employed.  He anticipated a fist fight and had no reason to believe that really serious injury would be occasioned.  The attack with metal pipes was therefore entirely outside the ambit of any enterprise to which he had allied himself.  Second, having no desire to take part in the attack itself, after being party to locating the members of Lo Shu Fat’s group, he, together with the 4^th applicant, withdrew from the joint enterprise.  Accordingly, when the attack itself took place, he was no longer a member of that enterprise.

The 4^th applicant

22.The prosecution case against the 4^th applicant was almost on all fours with its case against the 3^rd applicant.  The 4^th applicant too knew the history leading up to the attack, having been present for at least part of the 365 incident.  In particular, on the night of the attack he had learnt from Billy that a revenge attack was planned on Lo Shu Fat’s group and was informed that metal pipes would be used in the attack.  While the 4^th applicant, together with his friend the 3^rd applicant, may not have been willing to take part in the attack itself, he nevertheless willingly played an important role in ensuring the success of the joint enterprise by acting as a member of the reconnaissance party.  Accordingly, when the 4^th applicant carried out the reconnaissance, he was aware that metal pipes would be used in the attack and that serious bodily harm was a likely incident of the attack.  Having reported back on the success of the reconnaissance, the 4^th applicant remained with the 3^rd applicant until the attack was over when he rejoined the members of Billy’s group, meeting with them at the noodle shop.

23.In his defence, the 4^th applicant denied that, when the attack took place, he was a member of the joint enterprise.  Even though he had carried out the reconnaissance, he had never intended to take any part in the attack itself and, having completed the reconnaissance, before the attack itself took place, he, together with the 3^rd applicant, withdrew from the joint enterprise.

The 5^th applicant

24.Concerning the 5^th applicant, it was the prosecution case that, armed with a metal pipe, he was in the attack group itself.  Under caution, the 5^th applicant admitted that he had gone to the Games Centre and met up with the other young men having responded affirmatively to a request that he assist in going to hit people.  In his evidence, he explained that he had anticipated that there would be a fist fight. He admitted that he had gone into the rear lane where metal pipes were distributed.  He said that he had not expected that such weapons would be taken. Nevertheless, he took the metal pipe which he was handed.  He further admitted going with the group to carry out the attack and being with them when the attack took place.  He had brandish the metal pipe in his right hand as he chased members of the other group.  After the attack, he fled the scene of the attack and returned with others of the group to the rear lane where he disposed of his metal pipe and then, together with the 1^st and 2^nd applicants, and Billy himself, made his way to the noodle shop.  In summary, it was the prosecution case that the 5^th applicant was a core member of the attack group itself.

25.In his defence, the 5^th applicant – the youngest of the applicants – said that, despite being in the attack group and carrying a weapon, he was never part of the joint enterprise.  He fell in with the others because he felt he had no option other than to do so.  He was afraid that he himself would be hit with a water pipe if he had not done so.  He was not aware of why the attack was planned, had no intention of hitting anybody and simply ran with the group, pretending to be part of it.  He did not hit anybody nor did he attempt to do so.  He was not therefore, despite his physical presence, a party to the criminal joint enterprise.

The 1^st applicant’s application for leave to appeal conviction.

(a)   Joint enterprise: intention to participate.

26.Mr Hemmings submitted that the judge failed to direct the jury that, in respect of the alleged joint enterprise, proof was required that the 1^st applicant shared a common intention with others to commit the alleged offence.

(b)   Presence: intention and wilful encouragement.

27.Furthermore, he submitted the judge failed to direct the jury that it was the defence of the 1^st applicant that, in spite of his voluntary presence at the scene of the killing of the deceased, he had no intention to participate in the attack on the deceased or an intention to wilfully encourage others to do so.  The judge ought to have directed the jury that they had to be sure that by his presence at the scene of the killing of the deceased the 1^st applicant did in fact encourage the attackers to commit the offence and intended to and wilfully encouraged the attackers to do so.

28.In that context, objection was taken to the following passages in the summing up (page 85 M-U):

"What about any member of the group who stood there watching while the deceased was being beaten to death?… Would anyone stand there watching such a terrible, frightening and dangerous thing going on unless he was part of a group who had chased and caught the deceased and was therefore there when the deceased was beaten to death?

If you think that the only reasonable inference is that anyone standing there in these circumstances was a member of that group, you are entitled to find, upon my directions as to joint enterprise, that he was a participant in a joint enterprise to cause the deceased really serious injury and pursuant to which the deceased was killed. Such a person can be convicted of murder."

29.It was submitted that thereby the judge was inviting the jury to infer that by reason only of his non-accidental presence at the scene of the killing the deceased was not only a member of the group which had beaten the deceased to death but also a participant in a joint enterprise to cause him really serious injury.

(c)   A balanced summing up: participation in a joint enterprise.

30.Next, it was submitted that the judge’s description of the evidence relevant to whether or not the 1^st applicant was a participant in the joint enterprise alleged was unbalanced in favour of the prosecution.  The references by the judge to evidence from which the jury could infer that the 1^st applicant was a party to the joint enterprise were not balanced by references to evidence upon which they could conclude that he was not such a party.  [See the judgment of the Court of Appeal of England and Wales in R v Hobson (unreported) [1998] EWCA Crim 437 (9 February 1998) as to the duty of a judge to make specific reference to important matters in evidence upon which the defence relied in its case.]  In particular, it was submitted that the judge had failed to remind the jury that:

·   the uncontested evidence was that at the time of the distribution of the metal poles to the attackers the 1st applicant had declined to take a weapon when they were displayed and distributed; that Li Cheuk Wah (PW 22) had told the 1^st applicant and others not to take a weapon because "it had nothing to do with us";

·   he had only followed the armed group because he was afraid of the armed prime movers of the group;

·   he was unaware of who it was that they were looking for or why; that the attack on the deceased was already underway when he arrived at the place from which he watched that attack, namely some 30 metres from the deceased; and

·   the 1^st applicant said that he had been ‘stunned’ by the ruthless attack on the deceased and had neither done nor said anything during that attack.

(d)   A direction as to the approach to the evidence of the 1^st applicant.

31.Mr Hemmings submitted that the judge had failed to direct the jury, as required, in terms that if they were satisfied that the evidence of the 1^st applicant “was or might be true”, they should acquit him.

(e)   Miscellaneous matters.

32.Mr Hemmings complained that the judge had erred in describing his success in cross-examination in obtaining an affirmative answer from Choi Cheuk Hin (PW 23) to his suggestion that even after he had seen the metal pipes he had never thought that they would actually be used to hit anyone, as "having got the witness to say" that.  To do so was to invite the inference that the evidence was unwillingly extracted from the witness.  Finally, he complained that the failure of the judge to summarise the matters upon which the 1^st applicant relied upon in his defence was accentuated by reference at the end of the Summing-Up by the judge to "certain matters which I would stress in favour of both the 3rd and 4th accused."  To do so was to suggest to the jury that there were no matters that could be advanced in favour of the 1^st applicant.

A consideration of the submissions.

(a)   Joint enterprise: intention.

33.At the outset of her directions to the jury in respect of the requisite intent for the offence of murder, namely an intent to kill or to cause really serious injury, the judge directed the jury that the evidence did not support an intention to kill and told them that the issue with which they were concerned was proof of an intention to cause really serious injury (page 11 J- K):

“So killing a person unlawfully and with intent to cause really serious injury is murder. When I say “killing a person”, I include being party to the killing of a person done pursuant to a joint enterprise.”

34.The judge went on to direct the jury that, before they could convict an accused of the offence of murder, they had to answer the following questions in the affirmative (page 11 P-S):

"(1)   are you sure that he was party to a joint enterprise pursuant to which the deceased was unlawfully and deliberately dealt a blow or blows with a metal pipe or pipes which caused an injury or injuries resulting in his death? And

(2)   if you are sure that he was party to such a joint enterprise, then are you sure that he intended that the deceased at least be caused really serious injury?"

35.Of the ambit of criminal liability in any particular defendant for acts done in pursuance of a joint enterprise, the judge directed the jury that it encompassed not only acts that he intended be done but also acts, even if he did not intend that they be done (page 13N-P):

"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.”

(b)   Presence: intention and wilful encouragement.

36.In respect of the issue of the proper approach to the evidence of the presence of a defendant at the scene of the killing of the deceased the judge directed the jury: (page 15D-F):

"Of course, mere presence is not enough for guilt.  Of course, a person is not guilty of a crime just because he was present when it was committed."

37.The judge went on to remind the jury that the prosecution was not relying on "mere presence", rather it was "relying on a joint enterprise and each accused’s participation in it."  Then, the judge went on to give examples of how a party might participate in the alleged joint enterprise, including (page 15 K-L):

"…by standing nearby once a victim has been caught so as to encourage another or others to beat him."

38.Towards the end of the summing-up, the judge returned to the same subject matter, directing the jury (page 88F-H):

"Nor is he made guilty merely by presence whether such presence be at the Cyber Cafe or at any of the other places or indeed even at Lotus Tower during the incident and any gathering afterwards.”

39.Of the relevance of that evidence, the judge directed the jury that it was to put matters in context for their consideration of (page 88J-P):

"…each accused’s role as a participant in a joint enterprise pursuant to which the deceased was killed.

If you feel sure that, knowing what he must have known, no accused would have gone to Lotus Tower as he did unless he was a participant in the joint enterprise concerned, that is relevant……..

If you feel sure that no accused would have left with or met up with Billy and Ka Lok after the attack unless he had been a participant in the joint enterprise concerned, that is relevant."

40.It was in that context, that the judge invited the jury to consider whether the evidence established that the 1^st applicant had gone (page 88R-T):

“… from the rear lane, where metal pipes were taken or distributed, to Lotus Tower where the killing took place, there at Lotus Tower following behind the persons who rushed down with metal pipes and standing nearby when the killing took place.”

Then, the jury was invited to consider, if they were satisfied he had so conducted himself, what role the defendants, including the 1^st applicant, played in events.

41.Finally, the judge repeated in almost identical terms the illustrations that she had given earlier of the different roles that might be occupied by different participants in the joint enterprise the subject of the count.  In particular, she said that conduct by which participation might be evidenced included (page 89T-90A):

“by standing nearby once he has been caught so as to encourage another or others to thus beat him.”

[Emphasis added.]

42.As the judge made clear, the prosecution case in respect of the issue of the 1^st applicant's participation in the joint enterprise went far beyond the fact of his undisputed presence at the scene of the killing of the deceased. 

43.On his own admission, on the evening of 25 August 2007 the 1^st applicant went to the Choi Lung Amusement Games Centre on the instructions of ‘Ah Pong’ (Billy).  In the rear lane of those premises that 1^st applicant was present when metal pipes were distributed to between four and six persons, including Billy and Ah Lok.  Of that, the 1^st applicant said (counter # 33):

“Then, we knew what the matter was, to go to hit someone.”

Later, he added (counter #372-6):

“Q. Did you know what would the iron pipe be used for after they were fetched?

A. Probably for hitting someone.

Q. Right. Who told you someone would be hit?

A. We didn't know at first. Then they-seeing that they took a lot of iron pipes, we knew they would go to hit someone."

In his testimony at trial, the 1^st applicant confirmed that to be his understanding at that time (pages 64R and 68 A-C).

44.Of his understanding as to the reason that a person was going to be attacked, the 1^st applicant said, (counter #378-380):

“I knew that before-- the case occurred-- that is, on August 25. Two days before, Ah Pong seemed to have been hit.’

He went on to add (counter # 388):

“It was said he was hit. I found that he sustained an abrasion to his face. On August 25, he was seen to have sustained an abrasion to his face and a minor swelling to his eye corner.”

However, in his evidence he resiled from that admission, testifying that he had learned of that from Li Cheuk Wa only after the assault on 25 August 2007.

45.There was no dispute that after the pipes had been distributed that the 1^st applicant, and others who were unarmed, had followed the group of men armed with those pipes.  In all, they numbered 11 to 12 men.  From the rear lane they entered Block 4 and walked to Block 3 of the car parks of Lotus Tower.  At the staircase on the second floor of Block 3 they waited for “One or two minutes”. (counter #33, counter #174-180; page 23-24).  Then, the 1^st applicant said: (counter #183; page 24)

“When they, such as Ah Lok and Ah Pong saw clearly and confirmed the (person) was the one (they) had to hit, the whole group rushed down.”

46.For his part, the 1st applicant said, (counter #33; page 23):

“Later, we followed and rushed down there and stood aside watching Ah Lok and Ah Pong hit the person.”

He had not seen how the person came to be lying on the ground in the place where he was hit by Ah Lok and Ah Pong.  The beating lasted 4 to 5 minutes, after which he was told to leave (counter #33; page 23).  The 1^st applicant denied having taken part in hitting the deceased.  He had no intention to take part in either hitting anyone or in any altercation and had been ‘stunned’ at the ruthless attack. (Page 65 C-E).  Although he said that he could not leave the scene of the attack, he accepted that nothing had prevented him from doing so. (Counter #439-440, 517-518;page 25).

47.Together with the others he ran away from the scene of the attack on the deceased and, on the direction of Ah Lok, he met up with the other men, including Billy, at a noodle shop in Tai Kok Choi.  They dispersed after about half an hour and he went home. (Counter #33)

48.In summary, the context in which the jury was invited to consider the issue of the presence of the 1^st applicant at the scene of the killing of the deceased, in resolving the issue of whether or not he was a participant in the joint enterprise alleged, were the events that preceded and followed it, in particular the evidence that:

·   the 1^st applicant was present in the rear lane when iron pipes were distributed to four to six men, including Billy, Ah Lok, the 2^nd and 5^th applicants;

·   that he had accompanied a group of a total of 11 or 12 men, including those armed with iron pipes, who had made their way to the staircase of Block 3 of Lotus Tower, where they had waited for one or two minutes;

·   after Billy and Ah Lok confirmed the identity of the person to be hit the armed men followed by the unarmed men rushed down to where the deceased was;

·   thereafter, the 1^st applicant and the other unarmed men followed and stood nearby watching the fatal beating being administered to the deceased before they all fled before re-grouping at the noodle shop a little while later. 

49.Obviously, the undisputed conduct of the 1^st applicant went far beyond ‘mere presence’ at the scene of the killing of the deceased.  The latter event was to be viewed in the context of what went on before and after.  It is in that context that the rhetorical question of the judge, of which criticism is made, is to be viewed, namely (page 85 O-Q) "Would anyone stand there watching such a terrible, frightening and dangerous thing going on unless he was part of a group who had chased and caught the deceased and was therefore there when the deceased was beaten to death?"  A consideration of all of the evidence was relevant to the crucial question that the judge went on to pose for the jury, namely in standing nearby to the deceased after he had been caught by his assailants, did the 1^st applicant did so, "…so as to encourage another or others to beat him".  Notwithstanding the fact that the judge did not use the specific terms, the clear effect of that direction was to invite the jury to consider whether or not they were sure that by his conduct the 1^st applicant intentionally and wilfully encouraged the assailants in the commission of the offence.

50.In our judgment, the jury received appropriate and correct directions in respect of the ingredient of intention in participation in a joint enterprise to murder and as to their approach to the evidence relevant to thereto.

(c)   Balanced summing up.

51.There is no merit in the complaint that the judge had given the jury an unbalanced account of the evidence relevant to the issue of the 1^st applicant’s intention in respect of his conduct and of whether are not he was a participant in the joint enterprise alleged.  There is no dispute that in her summing up the judge had a duty to remind the jury of the significant and salient features of the defence case of each of the defendants at trial.  In the case of the 1^st applicant, the judge identified succinctly the evidence relevant to those issues not only in the prosecution case but also in his case.  The judge reminded the jury at some length of the relevant explanatory/exculpatory assertions made by the 1^st applicant in not only his out-of-court statements but also in his evidence.  In so doing, the judge addressed specifically the material matters about which complaint is made: he only followed the others from the rear lane because he was scared that he would be hit if he did not do so; he was stunned at witnessing the assault, and did so standing aside from the armed assailants, not leaving for the same reason; he did not take part in the assault.

52.As noted earlier in his out-of-court statements, confirmed in his testimony, the 1^st applicant denied having taken part in hitting the deceased.  Of the circumstances of his presence with others, including the assailants, before, during and after the attack on the deceased, the jury was reminded that in his out-of-court statements the 1^st applicant had said (counter #394-page 25 O):

“I followed them in the whole course. They ask (us) to walk and we walked. And they ask (us) to leave and we left.”

53.Of the1^st applicant’s evidence in that respect, the judge reminded the jury (page 64Q-65H):

“  When he saw pipes and people getting pipes and heard Ah Lok saying: “ Let's go”, he realised that they were to have a fight or hit people…. he was scared. It occurred to him to leave, but he could not because there were people behind including the person holding the torch, and he understood that person to be signalling him to follow. He could not refuse to follow. Billy, holding a pipe, indicated for him to follow. He was afraid that he would be hit if he did not follow.

He told you that he had no intention to take part in hitting or in any altercation.  He was worried about being in the group which was going to hit people.  He thought that he would see what the next step would be and would leave if anything happened.  He did not expect that they would be so ruthless.  He was stunned and just stood there and watched.  His group, without weapons, were separated from the group carrying pipes.  He told you that during the one to two minutes before the group rushed down the staircase, he did not know what the group of persons was looking for.”

54.Of the undisputed evidence that the 1^st applicant remained at the scene whilst the deceased was attacked by others, the judge reminded the jury of the 1^st applicant’s evidence of his fears, namely (page 65 M-Q):

“ …that he did not leave because he was afraid that if Billy was arrested later, then he would be suspected of being the one who called the police and that he would be assaulted by Billy.

He said that seeing the brutal assault, he was very scared and stunned, that he did not expect that they would hit a person so ruthlessly and that he did not know who the person being hit was.”

(d)   Directions as to the approach to the evidence of the 1^st applicant.

55.There is no merit in the complaint that the judge failed to give the jury appropriate directions as to how they were to approach the evidence of the 1^st applicant. As Mr Wong pointed out in his written submissions, although the judge did not give a specific direction in relation to the evidence of the 1^st applicant, she did give a general direction, with which issue is not taken, in respect of the proper approach to the evidence of an accused, namely that ( page 19J):

“…what an accused says in his own favour or in favour of a co-accused suffices if it is true or might be true while what he says against a co-accused should not be acted upon unless you feel sure that it is true.”

[Italics added.]

56.Of course, in her summing up the judge was dealing with a case in which all five defendants at trial had testified.  The direction that she gave clearly applied to the jury’s approach to the evidence of each one of those defendants.  It was wholly unnecessary to repeat that direction in respect of each defendant.

(e)   Miscellaneous matters.

57.Whilst the judge’s reference to Mr Hemmings, in cross-examination of Chui Cheuk Hin (PW 23), as having “got this witness to say that he never intended to chase anybody and that, even after seeing the metal pipes, he never thought they were actually going to be used to hit anybody” was an infelicitous description of the product of cross-examination, we are satisfied that it was not a pejorative observation on the witness nor did it belittle his testimony.  In fact, the evidence was adduced by simple affirmative answers to a series of leading questions.

58.We are satisfied that the fact that the judge determined it to be appropriate to inform the jury in the summing up that there were, "certain matters which I would stress in favour of both the 3rd and 4th accused" (page 90L), did not have the effect of suggesting to the jury that there were no matters that could be advanced on behalf of the 1^st applicant. As the jury would have readily understood their cases were quite different from their co-accused.  In fairness to the 3^rd and 4^th accused at trial she was entitled to give those directions.  As the judge reminded the jury (page 90Q-T):

“They were not present at the rear lane when metal pipes were handed out or taken; they were not present when persons carrying metal pipes went from that lane to Lotus Tower; they were not present during the Lotus Tower incident when persons were chased, and the deceased beaten, by a person or persons holding a metal pipe or pipes.”

Conclusion.

59.For the reasons set out above, we are satisfied that there are no merits in any of the proposed grounds of appeal against conviction advanced on behalf of the 1^st applicant, which application for leave to appeal against conviction is refused.

The 2^nd applicant’s application for leave to appeal conviction

60.Mr Loughran, who had appeared for the 2^nd applicant at his trial, informed the court that he was unable to advance any grounds of appeal against conviction in support of the 2^nd applicant’s application for leave to appeal against conviction.  He was available to assist the court in responding to such enquiries as might be made of him by the court.

Grounds of appeal against conviction.

61.In his home-made grounds of appeal, the 2^nd applicant simply contended, in effect, that something had gone wrong in the trial and that he had been wrongly convicted.

62.Although no specific arguments have been advanced in support of the 2^nd applicant’s bare assertion that he had been wrongly convicted of murder, in consequence of the arguments advanced on behalf of the other applicants, in particular the 1^st and 5^th applicants, the court has been required to examine the judge’s summing up in detail in areas that are germane to the case against the 2^nd applicant.  In the result, we are satisfied that the 2^nd applicant’s conviction is safe.  Accordingly, the 2^nd applicant’s application for leave to appeal against conviction is refused.

The 3^rd applicant’s application for leave to appeal conviction.

63.As we have said, the 3^rd applicant was the only one of the five applicants to be acquitted of murder but convicted of the alternative offence of manslaughter in respect of which he was sentenced to five years’ imprisonment.  At the conclusion of the hearing on 16 July 2010, having heard full submissions, we granted his application for leave to appeal his conviction and, treating the application as the appeal, quashed his conviction, setting aside the sentence of imprisonment.  Our reasons for doing so are now given.

The 3^rd applicant’s grounds of appeal.

64.There were two grounds of appeal advanced on behalf of the 3^rd applicant by Mr Stirling who had also represented him at trial.

65.The first ground asserted that, at the end of the prosecution case, the judge erred in law in refusing an application of ‘no case’ made on behalf of the 3^rd applicant.  That application of ‘no case’ was to the effect that, even if the 3^rd applicant had lent himself to a joint enterprise to attack members of the Lo Shu Fat group, it was on the basis, as he understood it, that it would be a fight without weapons and accordingly he never foresaw as a possible incident of the joint enterprise that weapons would be used that were capable of causing really serious harm.  The killing of Wu with the use of metal pipes was therefore entirely outside the parameters of any enterprise to which he lent himself.  As such, so the submission of ‘no case’ was argued, the 3^rd applicant was neither guilty of murder nor manslaughter.  This was because the death of Wu had been occasioned by other members of the group who, in taking up weapons and using them in the attack, had departed completely from what the 3^rd applicant understood to be the common design and had acted in a manner that he did not foresee, and could not in the circumstances have foreseen, as possibly constituting any part of the planned attack.

66.The second ground of appeal advanced on behalf of both the 3^rd  and 4^th applicants by Mr Stirling was to the effect that, on the evidence, it was open to the jury to find that, even if the 3^rd and 4^th applicants had allied themselves to the criminal joint enterprise, they had withdrawn from that enterprise before the attack itself took place.  It was therefore incumbent on the judge to direct the jury as to what in law was capable of amounting to disengagement from a criminal joint enterprise and to give some assistance to the jury as to how to apply the principles of law to the evidence before them.  The judge, however, failed adequately, or at all, to direct the jury in this regard, the consequence being that matters integral to the defence of both the 3^rd and 4^th applicants were never explained to the jury.    

The first ground of appeal: evidence relevant to the 3^rd applicant.

67.To put the first ground of appeal into context, the history of events concerning the 3^rd applicant needs to be revisited.

68.First, the 3^rd applicant was present at the 365 incident when the confrontation with the Lo Shu Fat group took place. While initially a few punches were thrown, no further violence occurred that night.  The evidence showed that Wu had brandished a long metal pole, threatening Billy and his group, but the pole had not been used as a weapon of attack and had been removed from Wu by members of his own group.

69.Second, a few days later, when Billy met up with the 3^rd applicant and other members of the group at the Kam Tin Amusement Game Centre, to report that he had been attacked in a park by members of the Lo Shu Fat group, he did not speak of any weapon being used against him nor did he complain of any serious injury.

70.Third, in respect of the night of the attack itself, the 3^rd applicant admitted under caution that Billy had asked him if he would take part in “hitting someone”.  The 3^rd applicant further admitted that he had agreed to do so, knowing that the intention was to fight with members of Lo Shu Fat’s group, in short, that this was to be a revenge attack for the beating that Billy had endured a few nights earlier.  Importantly, however, the 3^rd applicant said that he was not told by Billy how the attack was to be carried out.  He said that at the time he believed that there would be a fist fight, his understanding being that Billy had been attacked with fists and so the Lo Shu Fat group would be attacked in the same fashion.  In this respect, it is to be noted that there was no evidence, by way of any admission under caution or otherwise, that the 3^rd applicant was informed that weapons of any kind would be employed that night.

71.As to the 3^rd applicant’s movements on the night of the attack, he said under caution that, although he had agreed to participate in the attack, he did not wish to do so and lingered with the 4^th applicant in the amusement arcade playing video games while the others left.  He remained there, he said, until he and the 4^th applicant received a telephone call from another member of the group, Li Cheuk Wa one of the prosecution witnesses who testified under immunity.  It was as a result of Li’s summons that the 3^rd and 4^th applicants took part in a reconnaissance exercise to locate and identify members of the group that was to be attacked.

72.In this regard, it was Li’s testimony, supported by the 3^rd applicant’s admissions made under caution, that, because he had some eyesight difficulties, he telephoned the 3^rd and 4^th applicants asking them to join him in the vicinity of the Lotus Tower in order to confirm that a group of young people meeting in the area of the podium were members of Lo Shu Fat’s group.  Because both the 3^rd and 4^th applicants had been present at the 365 incident they were able to identify who were the members of that group.  

73.Having received their instructions from Li, the 3^rd and 4^th applicants found a vantage point from which they could look down on the group of people in the area of the podium.  They were able to confirm the presence of Lo Shu Fat himself.

74.With this task fulfilled, neither the 3^rd applicant nor the 4^th applicant took any further part in the joint enterprise.  Under caution, the 3^rd applicant said that he had no desire to take part in the fight itself.  He said that he spoke to Li on his mobile telephone, telling him that, if anything happened, he should call back.  He said that he and the 4^th applicant then walked to a nearby 7-Eleven store where they waited.  

75.The 3^rd applicant said that it was some time later – the evidence showed it to be about 10 or 11 minutes - that Li was telephoned.  Li said that the attack was over.  It was then that he and the 4^th applicant left the vicinity of the 7-Eleven store to join up with others in Billy’s group.  

The first ground of appeal: principles related to the participation of a secondary party in a criminal enterprise.

76.The law directs that, when a person embarks on a criminal enterprise with others, he is liable for the acts of those others in the fulfilment, or attempted fulfilment, of that enterprise provided those acts fall into either of the following two categories.  First, if they fall within the common design, that is, acts which fall within the scope of the common purpose.  Second, if they are acts which he foresaw as a possible incident of the criminal enterprise even if he did not himself intend such acts and even if he may have wished to avoid them.  

77.As to this second category of acts, the principle of jurisprudence supporting it was stated in the judgment of the Privy Council in Chan Wing Siu v R [1985] AC 168.  In giving the judgment of the Council, Sir Robin Cooke (as he then was) said (at 175):

“That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be expressed but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal liability lies in participating in the venture with that foresight.”

78.This is subject to the principle that a crime foreseen as a possible incident of a common unlawful enterprise will not include the risk of a crime so remote that it may be excluded altogether as being a negligible risk.

79.The principle succinctly stated by the Privy Council in Chan Wing Siu was considered in a later judgment of the Council, that of Hui Chi Ming v R [1992] 1 AC 34, at 35, in which Lord Lowry, giving the judgment of the Council, spoke of Sir Robin Cooke’s use of the word ‘authorisation’, saying:

“Their Lordships consider that Sir Robin Cooke used this word - in that regard they did not differ from counsel - to emphasise the fact that mere foresight is not enough: the accessory, in order to be guilty, must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise and must, with such foresight, still have participated in the enterprise. The word ‘authorisation’ explains what is meant by contemplation, but does not add a new ingredient. That this is so is manifest from Sir Robin's pithy conclusion to the passage cited: ‘the criminal culpability lies in participating in the venture with that foresight’.”

80.Lord Steyn, in his speech in R v Powell and English [1997] 3 WLR 959, at 964, held that these two judgments of the Privy Council correctly stated the law, namely, that –

“…a secondary party to a criminal enterprise may be criminally liable for a greater criminal offence committed by the primary offender of a type which the former foresaw but did not necessarily intend. The criminal culpability lies in participating in the criminal enterprise with that foresight. Foresight and intention are not synonymous terms. But foresight is a necessary and sufficient ground of the liability of accessories.”

81.It follows that if, during the course of a criminal enterprise, one or more participants in the enterprise commit a crime that not only falls outside of the common design but is a crime that the other participants did not foresee as a possible incident of the enterprise then those other participants are not guilty of that crime even though they may be guilty of other offences.

The first ground of appeal: the prosecution's reply to the 3^rd applicant’s submission of ‘no case’.

82.At trial, in advancing his ‘no case’ application, Mr Stirling submitted that there was simply no evidence upon which the jury could draw the inference that the 3^rd applicant knew the use of weapons was part of the common design of the criminal enterprise to attack Lo Shu Fat’s group nor that the 3^rd applicant must have foreseen as a possible incident of the attack that weapons would be carried.  It was argued that, on the evidence, the killing of Wu with metal pipes was entirely outside the parameters of any enterprise to which the 3^rd applicant had lent himself and, as such, the 3^rd applicant was not guilty of the crime which led to Wu’s death, be it murder or manslaughter.

83.What then was the extent of the evidence that had been put before the jury at the end of the prosecution case?  As we have said, at that time there was no direct evidence that the 3^rd applicant knew that metal pipes were to be used in the attack on the rival group.  In the absence of direct evidence, it was therefore incumbent on the prosecution to demonstrate that it nevertheless remained open to the jury, on a consideration of all the evidence, to draw the inference that the use of weapons was part of the common design or that the 3^rd applicant must have foreseen as a possible incident of the attack that weapons capable of causing serious bodily harm would be used.  The difficulty faced by prosecuting counsel at trial was that there was little, if anything, upon which a jury, properly directed, could base either inference.  Indeed, prosecuting counsel himself conceded that it was a “borderline” case.

84.In opposing the ‘no case’ application, prosecuting counsel asserted that the 3^rd applicant must have been aware of an inevitable escalation of events leading to the use of weapons.  In this regard, counsel emphasized that the 3^rd applicant had been present at the 365 incident.  But while Wu, the deceased, had brandished a long metal pole at some stage of that incident, it was never used as a weapon and was taken from him by members of his own group.  It was never in dispute that, on that occasion, the only violence consisted of a few early punches.  The 3^rd applicant was also present when Billy reported that he had been attacked by some 10 members of Lo Shu Fat’s group.  But, as we have said, Billy did not report that weapons had been used against him nor did he complain of or display injuries of such a serious nature as to indicate, by their very nature, that in a revenge attack means capable of causing similar serious injury would be employed.  

85.In our judgment, therefore, there was very little, if anything, in the history of events to point to an inevitable escalation of the degree of violence to be employed in a revenge attack.

86.Prosecuting counsel further submitted that it was open to the jury, applying its knowledge of Hong Kong, to take into account that invariably revenge attacks of this type “involving triads” involved the use of weapons capable of causing serious bodily harm.  

87.This submission, in our view, had to fail on a number of grounds.  First, there was no evidence as to how triad revenge attacks are invariably resolved.  Second, Billy may have been reputed to be a triad but there was no evidence that the other members of the group, certainly those friendly with the 3^rd applicant, had triad affiliations.  Third, while there was evidence that Billy ‘imported’ some strangers that night to assist in the attack, men who may have been presumed to be triads, there was no evidence that the 3^rd applicant had any association with these men.  Fourth, there was no evidence that Lo Shu Fat’s group itself had triad affiliations.  In summary, to suggest that the 3^rd applicant must have seen events that night as some sort of triad conflict has no viable basis.

88.Prosecuting counsel made the further submission that the jury was entitled to take into account that the 3^rd applicant seemed to be the only one in the group not to know that weapons were to be used that night.  We did not see how that advanced matters.  Events were not so static and so transparent that, if everybody else knew, it had to follow that the 3^rd applicant knew too.  To the contrary, events were fluid, different people learning of the true nature of the attack at different times and at different places.  There was no evidence, however, that Billy informed the 3^rd applicant that weapons were to be used nor was there any evidence that, prior to the attack taking place, the 3^rd applicant ever saw or knew anything of such weapons.

The first ground of appeal: our conclusion.

89.As we have said, events that night were fluid.  While the fact of an attack on Lo Shu Fat’s group may have been generally known by members of Billy’s group, the evidence revealed that Billy’s true intention, namely, that weapons would be carried, only became known to members of the group at different times and in different circumstances.  On the evidence, it was only in the alley, when the weapons were drawn from a bag and distributed, that it could be said that their use became part of the common design.  But, of course, the 3^rd applicant was not present at that time or in the minutes that followed when the attack was launched.

90.Accordingly, if the 3^rd applicant was to be found to have a case to answer it had to be on the basis that it remained open to the jury to draw the inference that he must have foreseen as a possible incident of the attack that weapons would be used.  But such an inference could only be drawn on the basis of evidence of sufficient weight to be capable of giving rise to such an inference.  As we have already made clear, there was no such evidence.  On a true analysis, we are satisfied that such evidence that there was amounted at best to speculation.

91.What then remained? What then remained was that, on the evidence, the jury had to accept that Wu’s death may have been occasioned by other members of Billy's group who, in taking up metal pipes and using them in the attack, departed completely from the common design and acted in a manner which the 3^rd applicant did not foresee, and could not have foreseen, as possibly constituting any part of the planned attack.  That being the case, it followed that the killing of Wu with those weapons fell entirely outside the parameters of any enterprise to which the 3^rd applicant had lent himself and, as such, the 3^rd applicant was neither guilty of murder nor manslaughter.  

92.There being no evidence upon which a reasonable jury properly directed could come to any other conclusion, we were satisfied that the judge was materially in error in refusing the application of no case to answer made on behalf of the 3^rd applicant.  It was on this ground, and this ground only, that we were satisfied that the 3^rd applicant’s appeal must be allowed.  

The 3^rd applicant’s second ground - and the 4^th applicant’s only ground - of appeal.

93.As we have indicated earlier, this ground of appeal was advanced on behalf of both the 3^rd and 4^th applicants. Indeed.  It was the 4^th applicant’s only ground of appeal.  It is therefore convenient to deal with both applicants together.

94.As Mr Stirling submitted, during the course of their testimony both the 3^rd and 4^th applicants spoke not only of their reluctance to participate in the criminal joint enterprise but spoke of actions taken by them to avoid being forced to take part in the attack itself.  In addition, in the course of addressing the jury, counsel spoke on a number of occasions of the defence of ‘withdrawal’.  By way of example, counsel for the 4^th applicant at trial, having referred to the fact that the judge would be addressing them on the issue, said the following:

“Two men withdrawing from an enterprise, what else could they have done? Should they both have rung Billy or Ah Lok - I don't believe there is any record of them having his number – “sorry about this, we decided we don't really want to join in.” It's common sense, in the real world, that you just go away, members of the jury. Their intention [ that of the 3^rd and 4^th applicants] to withdraw is clear. It cannot be clearer”

95.In the circumstances, Mr Stirling submitted, it being open to the jury on the evidence to find that the 3^rd and 4^th applicants had withdrawn from the criminal joint enterprise before the fatal attack took place, it was incumbent on the judge to give an appropriate direction to the jury as to ‘withdrawal’.  The judge, however, erred in failing adequately, or at all, to give such a direction.

96.As it was, the judge directed the jury in the following terms:

“I have directed you on the question of an accused being guilty of homicide, either murder or manslaughter, on the basis of his being a participant in a joint enterprise pursuant to which [the victim] was killed. In respect of each accused, such guilt involves of course you're feeling sure, on a realistic view of the whole of the evidence, that he was a participant in it throughout and that he never withdrew from it. That means, in other words, a single joint enterprise from the start until the last blow, and therefore including the fatal blow or blows [that were] struck, and his being in it, and remaining in it, throughout .” [our emphasis]

97.In the circumstances, said Mr Stirling, it was incumbent on the judge to address the jury, with specific reference to the 3^rd and 4^th applicants, on what in law is capable of constituting withdrawal from a criminal joint enterprise.  As it was, there was no direction in that regard.  The consequence was that the potential defences of the two applicants were never fully explained to the jury.

98.In their cautioned statements and in the course of their testimony both the 3^rd and 4^th applicants spoke of their reluctance generally to be involved in the planned revenge attack.  They also spoke of their actions, after they had conducted their reconnaissance, to seek to avoid having to participate in the violence of the attack itself.  These latter actions, so it was submitted, were capable in law of constituting withdrawal from the criminal joint enterprise, it ultimately being a question of fact and degree for the jury.

The evidence relevant to the 3^rd applicant.

99.Under caution, the 3^rd applicant said that, when he was approached by Billy on the night of the attack at the Kam Tin Amusement Game Centre and asked to take part in it, because he was nervous of Billy and did not know how to refuse him, he agreed to take part.  It was, however, his evidence that he had no desire to take part in any attack.  Accordingly, when the others left with Billy, he and his friend, the 4^th applicant, remained in the video games centre.

100.However, about ten minutes later Li telephoned, asking the 3^rd applicant to join him at a bus stop in the vicinity of the Lotus Tower.  According to the 3^rd applicant, Li did not state the purpose but the 3^rd applicant agreed to meet him.  The evidence showed that the 3^rd and 4^th applicants together went to the bus stop where they met Li.  

101.Li told them that he had some difficulties with his eyesight and could not be sure whether a group of persons he had seen in the area of the Lotus Tower podium were members of Lo Shu Fat’s group.  Li asked the 3^rd and 4^th applicants to check for him.  In the course of their testimony, both the 3^rd and 4^th applicants admitted that they were willing to carry out this reconnaissance even though they understood that the group they were tasked to identify was the group targeted to be attacked.

102.To get to the best vantage point, the 3^rd and 4^th applicants made their way to an elevated walkway from where they were able to look down on the group.  The 3^rd applicant admitted only to recognizing Lo Shu Fat himself.  

103.The 3^rd applicant testified that it was at about this time and in the minutes thereafter that he and the 4^th applicant spoke together of their misgivings in joining the attack on Lo Shu Fat’s group.  When, in the course of his testimony, the 3^rd applicant was asked to recall the gist of the conversation, he said:

“[The 4^th applicant] asked me whether we should go and fight with Billy. Then it was said that we did not want to go.”

104.When he made his statement under caution, the 3^rd applicant said that he then spoke to Li on his mobile telephone:

“… and then a while, a while later, we then said that we walked to and sat somewhere near the concrete block [in the vicinity of the 7-Eleven store] and, if anything happened, he should call us. So it was said.”

105.This statement was clarified by the interviewing officer to the following effect:

“Interviewer:          You told [Li] that you and [the 4^th applicant] walked away, walked away for a while?”

The 3^rd applicant:     Yes.

Interviewer:              Well, you told him to contact you if anything happened?

The 3^rd applicant:     Right.”

106.Under caution, the 3^rd applicant recalled that he and the 4^th applicant had waited for a long time before Li was contacted.  The evidence, in fact, showed that it was only some 10 or 11 minutes.  It was then, while in the company of the 3^rd applicant, that the 4^th applicant telephoned Li.

107.After the call, the 4^th applicant reported to the 3^rd applicant that the fight was now over.  The 3^rd applicant testified that the two of them then made their way back past Lotus Tower where they saw a large number of police officers.  They also saw Lo Shu Fat who was standing next to “a person lying on the ground”.

108.The 3^rd applicant testified that he was anxious to find out what had happened to his friends in the attack.  That was why he joined up with other members of the group and why, when they got into a vehicle to go to the noodle shop, he joined them.

The evidence relevant to the 4^th applicant.

109.There were a number of material differences in the two cautioned statements made by the 4^th applicant, the statements themselves differing from the 4^th applicant’s testimony.

110.Concerning the events of the night of 25 August 2007, in his cautioned statements, the 4^th applicant said that he had been telephoned by Billy when he was at the Kam Tin Amusement Game Centre and informed by him that he intended to attack Lo Shu Fat’s group that night.  He said that he spoke to Billy more than once and knew that Billy intended to employ metal pipes in the attack.  In his testimony, however, he denied any such telephone calls and denied learning of any intended attack while he was at the Kam Tin Amusement Game Centre.  

111.In his testimony, the 4^th applicant said that it was the 3^rd applicant who asked him to accompany him to a bus stop in the vicinity of Lotus Tower, that he was not told why and indeed only learnt of the reason when the two of them met with Li.  It was then, he said, that Li, explaining that his own eyesight was bad, asked them to make their way to a vantage point to see if they could locate and identify members of Lo Shu Fat’s group.

112.In his second cautioned statement, the 4^th applicant said that, having found and identified Lo Shu Fat, he reported back.  When he did so, he knew that his report would trigger the attack itself.  Indeed, under caution the 4^th applicant said that his principal reason for not wishing to take any further part in the criminal enterprise was because, knowing that weapons would be used, he wished to avoid the severe penalties that would be imposed if serious injury was caused to any of Lo Shu Fat’s group.    

113.In his testimony, the 4^th applicant said that, when he telephoned Li to report, he was asked by Li if the two of them, that is, himself and the 3^rd applicant, were going to join him and the others in the attack.  As to his reply, the transcript of his testimony records:

“The 4^th applicant:      At that time I did not answer him.

Counsel:                      Why?

The 4^th applicant:         Because I did not know how to refuse him.”

114.The 4^th applicant said that he and the 3^rd applicant then made their way to the nearby 7-Eleven store where they waited.  The 4^th applicant agreed that it was he who telephoned Li.  He did so, he said, because Li was a friend and he was anxious to learn of his welfare.  Indeed, it was the purport of his testimony that he only met up with the others in the group later that night, driving with them to the noodle shop, because he was anxious to be assured that none of them had come to any harm.

Withdrawal’ from a criminal joint enterprise.

115.In R v Becerra and Cooper(1976) 62 Cr App R 212, at 218, the English Court of Appeal considered that the following passage from the leading judgment of Sloan JA in the Court of Appeal of British Columbia in R v Whitehouse (1941) 1 WWR 112 concerning ‘withdrawal’ could not be improved upon as a correct statement of the law.  The passage is particularly apt to the facts of the present case.  It reads:

“Can it be said on the facts of this case that a mere change of mental intention and a quitting of the scene of the crime just immediately prior to the striking of the fatal blow will absolve those who participate in the commission of the crime by overt acts up to that moment from all the consequences of its accomplishment by the one who strikes in ignorance of his companions’ change of heart? I think not. After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to disassociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend upon the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: where practicable and reasonable there must be timely communication of the intention to abandon the common enterprise from those who wish to disassociate themselves from the contemplated crime to those who desire to continue in it. What is ‘timely communication’ must be determined by the facts of each case but where practical and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw.”

116.In R v O’Flaherty [2004] 2 Cr App R 315, at 327, the English Court of Appeal reduced this to the following statement:

“A person who unequivocally withdraws from the joint enterprise before the moment of the actual commission of the crime by the principal ... should not be liable for that crime, although his acts before withdrawing may render him liable for other offences.” [Our emphasis]

117.What amounts to ‘unequivocal withdrawal’ will depend on the facts of each case.  Where a violent incident arises spontaneously, it may not be ‘practicable and reasonable’ in the mayhem and immediacy of the moment for a person to communicate to the others involved with him in the joint criminal cause that he is disassociating himself from that cause.  A clear demonstration of disassociation may therefore be constituted by actions of a different kind.  

118.In the present case, however, the joint criminal enterprise did not arise spontaneously.  It was a planned revenge attack.  Members of Billy’s group were recruited to the enterprise.  A reconnaissance was necessary to locate and identify the persons to be attacked before any attack could be launched.  The successful results of that reconnaissance had to be reported back and the attack group then brought into place.

119.That being the case, in so far as it was practicable and reasonable in the circumstances, what the law required of those who wished to disassociate themselves from the forthcoming attack was a timely communication of the intention to abandon the common purpose given to those who were determined to continue with it.  As to the nature of that communication, to cite again from the judgment of Sloan JA in Whitehouse –

“…it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw.”

Was there evidence upon which the jury could find that the 3^rd and/or 4^th applicants had withdrawn from the criminal joint enterprise?

120.At the time when they conducted their reconnaissance both the 3^rd and 4^th applicants were in possession of mobile telephones.  They therefore had the means to contact the other members of Billy's group.  Indeed, they were in contact with Li who had sent them on the reconnaissance.

121.The 3^rd and 4^th applicants both testified that it was while they were completing the reconnaissance, or had just completed it, that they jointly resolved that they would not take part in the attack itself.  There was time therefore, if they had a change of heart, to communicate that change of heart to other members of the group.

122.Even if the 3^rd and 4^th applicants were intimidated by Billy, both testified that Li was their friend.  In short, the 3^rd and 4^th applicants had the means to make a timely communication to give notice that they wanted nothing further to do with the criminal enterprise to which they had allied themselves and they also had the person to whom it could reasonably be communicated without fear of dire repercussions.  

123.What was required of each of them in the circumstances was a call, at the very least to Li, to give him notice in a plain and unmistakable way that they were, with immediate effect, disassociating themselves from the criminal enterprise to carry out the attack; put simply, that they wanted nothing more to do with it and would not render any further assistance.  

124.In our view, however, there was nothing that a jury properly directed could find to be capable of such notice.

125.Under caution, the 3^rd applicant spoke of informing Li that he and the 4^th applicant were moving off to a particular spot, one which he identified.  He said nothing of leaving the area entirely.  He said nothing of disassociating himself from the criminal enterprise.  To the contrary, he said that he informed Li that, if anything happened, he could be contacted.  Considered in context, that latter part of the communication was capable of one meaning only, namely: ‘we are here if you need us’.

126.The 4^th applicant testified that, after he and the 3^rd applicant had made up their minds not to take part in the attack, he spoke to Li on the telephone and was specifically asked if the two of them would be going with him to join in the attack.  The 4^th applicant, however, did not use that opportunity to give plain and unmistakable notice that neither he nor the 3^rd applicant wanted anything further to do with the criminal enterprise and that any further steps to make good the enterprise would have to be carried out without their assistance.  He said only that he did not reply.

127.Indeed, the 4^th applicant said that he was the one who telephoned Li shortly thereafter to find out what was happening, hardly part of a course of conduct consistent with having given plain and unmistakable notice earlier that he wanted nothing further to do with the criminal enterprise.

128.To that must be added the fact that, once the 3^rd and 4^th applicants learnt that the attack was over, they took immediate steps to rejoin the members of Billy’s group.

129.It is evident that the 3^rd and 4^th applicants found themselves in a dilemma.  While they may not have been fully committed to the criminal enterprise as others in the group were, it is plain on the evidence that they did not wish to turn their backs on their friends: an unequivocal withdrawal from the enterprise may well have meant a rejection by the group.  But, having allied themselves to the criminal enterprise by carrying out a secondary but nevertheless important role in achieving its successful outcome, the options facing them were stark.  The law has long required no less.  Indeed, as is made plain in Becerra (above) the principle of unequivocal action, that is, action which is clear and express, has been stated as long ago as the 16th century : page 217.  It was therefore not sufficient for the 3^rd and 4^th applicants to resolve simply to sit out the attack itself, hoping that they would not be called upon to render any further assistance.  What was required of them, in light of the fact that the mischief of the reconnaissance had already been done, was not an attempt to be both in and out; that is, a form of tactical equivocation, but instead a plain and unmistakable withdrawal from the enterprise as a whole.  However, as we have said, the evidence as it emerged provided no basis upon which a jury properly directed could find that either the 3^rd applicant or the 4^th applicant took such action, that is, action unequivocally demonstrating that they were withdrawing from the joint enterprise.

Should there nevertheless have been a direction to the jury?

130.The potential defence of ‘withdrawal’ having been put before the jury, it is undoubted, we think, that the jury would have been assisted by a direction as to what in law was capable of constituting such ‘withdrawal’.  A direction to that effect would have been directly relevant.

131.But, for the reasons given, we are satisfied that, if there had been such a direction, the judge would have been obliged effectively to direct the jury that the defence was not open to either the 3^rd applicant or the 4^th applicant.

132.As it was, the direction given to the jury may be regarded as more generous to the applicants.  The direction did not ignore the issue of ‘withdrawal’.  It was, however, general in nature, being to the effect that the jury had to be satisfied, on a “realistic” view of the evidence, that each accused was a participant in the joint enterprise from the beginning until the end and that at no time did he withdraw from it.  What was capable of constituting withdrawal was left to the jury to determine as a matter of fact and degree free of the limiting principles that we have referred to above.  That being the case, the failure to give a direction acted more to the advantage of the two applicants than to their disadvantage.  

133.By their verdicts, of course, the jury clearly found that the 3^rd and 4^th applicants were participants in the joint enterprise throughout, rejecting any suggestion that at any time they may have withdrawn from it.

134.In the result, we are satisfied that the failure to give a direction in respect of ‘withdrawal’ did not amount to a material non-direction.

The 5^th applicant’s grounds of appeal against conviction.

(a)   Grounds 1 and 2: a balanced summing-up.

135.By Grounds 1 and 2 of the 5^th applicant’s Grounds of Appeal against Conviction Mr Haynes submitted that the summing-up was unbalanced in favour of the prosecution, in particular that the judge not only failed to remind the jury of significant aspects of the 5^th applicant's defence but also she did not draw their attention to the evidence in favour of the 5^th applicant in respect of the drawing inferences as to his intention in conducting himself as he did.  In particular, complaint was made that in the context of the 5^th applicant’s evidence at trial that he had no intention to kill or cause any serious injury to the victim or anyone the summing up was unbalanced in that the judge failed or failed adequately to remind the jury of relevant evidence, including that:

·               of the relative youth of the 5^th applicant;

·               the 5^th applicant had been handed the metal pipe in the rear lane prior to the warning by Li Cheuk Wa (PW 22) not to take possession of a pipe;

·               the 5^th applicant had stood next to Li Cheuk Wa (PW 22) who, in common with the 5^th applicant, testified that not only had he not attacked the deceased but also that he had not intended or foreseen an attack causing very serious injury to others and that he had done nothing other than watch the assault by others on the victim in fear of leaving the scene.

(b)   The 5^th applicant's out-of-court statements.

136.Next, it was contended that the judge failed to give the appropriate and complete direction in respect of character, in that she limited the general direction she gave in respect of credibility to the testimony of the applicants at trial, not extending that direction in respect of out-of-court statements led in evidence.  Also, she erred in failing to direct the jury that they should accept the exculpatory parts of the out-of-court statements of the 5^th applicant if they "might be true".  That omission was compounded by her failure to remind the jury of significant exculpatory assertions in those out-of-court  statements, in particular, that: he did not know the victim, that he was too frightened by the ruthless assault to leave the scene and that he had cooperated by giving the police details of the particulars of the assailants.

137.Furthermore, Mr Haynes joined Mr Hemmings in his complaint that the judge erred in posing the rhetorical question (page 85 M-Q):

" What about any member of the group who stood there watching while the deceased was beaten to death? You should approach your task with realism and commonsense. You may ask yourselves this. Would anyone standing there watching such a terrible, frightening and dangerous thing going on unless he was part of a group who had chased and caught the deceased and was therefore there when the deceased was beaten to death?"

In giving that direction, the judge pointed the jury away from the vital issue of the subjective intent of the 5^th applicant.

(c)   identification.

138.Mr Haynes contended that the judge had erred in failing to give directions to the jury in respect of the "purported "identification" of the 5^th applicant from a CCTV photograph timed at 22:43:19 (photograph no. 64 of exhibit P154)."

139.Although he was counsel for the 5^th applicant at his trial, neither in his ‘Grounds of Appeal against Conviction’ nor in his written submission, did he condescend to identify the witness in question.  At the hearing of the application, with the help of counsel for the respondent, Mr Haynes identified the witness in question as being the 2^nd applicant.  In consequence, the hearing of the applications was adjourned in order that the court could obtain transcripts relevant to the issue.

140.There is no dispute that, in cross examination by the prosecution, the 2^nd applicant agreed with the suggestion put to him that photograph 64 of Bundle C, a CCTV photograph taken on the ground floor of Block 3 of Lotus Tower, depicted the 5^th applicant in the immediate company of Billy and another member of the group leaving, the nearby scene of the assault on the deceased.  In cross-examination by the prosecution, the 5^th applicant denied that he was depicted in that photograph.  At the conclusion of the evidence, Mr Haynes invited the judge to direct the jury that the identification was unreliable, it being simply a rear view of the person.  At the end of his closing speech to the jury, Mr Haynes addressed the matter at some length, informing them that they would be directed by the judge that any reliance on that identification of the 5^th applicant by the 2^nd applicant would be "wholly unsafe".  In the event, the judge made no reference to any of that evidence nor did she give any such direction to the jury.

141.Mr Haynes submitted that in all the circumstances the identification of the 5^th applicant in photograph 64 was wholly unreliable.  The significance of the evidence was that it placed the 5^th applicant in the close company of Billy, a primary assailant in the attack on the deceased, immediately after that attack in the course of flight from the scene.  Also, it contradicted the 5^th applicant’s testimony that he had left by another route with other persons.  The judge’s failure to direct the jury to ignore that evidence was a material non-direction.

(d)   inferences.

142.It was submitted that in directing the jury in respect of the drawing of inferences as to intent the judge had failed to remind the jury with appropriate emphasis of the direct evidence of Li Cheuk Wa (PW 22) relevant to that issue.

(e)   foresight as to the carriage/use of weapons.

143.By this ground, it was submitted that the judge had erred in directing the jury that, in considering the evidence of the 5^th applicant, they could have regard to the fact that on the one hand he had testified that ..“it had never occurred to him that they would take iron pipes during the fight” , whereas on the other hand he had said that “.. the reason that he had chased people was to make it look like he was helping Ah Lok because he was afraid that if he did not do that, Ah Lok would hit him with a water pipe.” (page 80 K-M)

144.Whilst it was conceded of the 5^th applicant’s evidence that the "potential inconsistency is logically undeniable", it was contended that the judge erred in failing to direct the jury to consider whether or not the fear in the 5^th applicant was "irrational, emotive and powerful" and that, given "peer pressure, immaturity and speed of events", whether rational thought and foresight in the 5^th applicant may have been rendered "difficult and even non-existent."

A consideration of the submissions

(a)   Grounds 1 and 2: : a balanced summing-up.

145.There is no merit in the submission that the summing-up in respect of the 5^th applicant was unbalanced in favour of the prosecution.  As Mr Wong pointed out, the judge directed the jury generally to take (page 84 H-M) "fully into account in favour of each accused" the lack of clarity in the prosecution evidence in respect of various matters, including the number of assailants who were present when the victim was beaten to death, what they did and how many held metal pipes. 

146.Of the fact of the youth of the applicants, the judge had reminded the jury at a very early stage of her summing up that the admitted facts were available to them to read on their retirement and that they set out the dates of birth of the various applicants (page 3 B-J).  Of the relevance of that evidence, the judge directed the jury (page 3 K-L):

"You will bear in mind each accused’s youth - along with anything else put forward on his behalf about his background, character and so on when deciding what you feel sure about his state of mind, including his knowledge and intent, at all material times."

147.At the outset of a summary of the evidence of the respective applicants, the judge returned to the relevance of their youth (page 63P-R):

".. you will of course make allowance for their youth, their lack of experience of giving evidence and the nervousness which it would be natural for people, whether innocent or guilty, when on trial for a serious offence."

148.Of the issue of the circumstances in which the 5^th applicant came to be possessed of a metal pipe, the judge reminded the jury that in his out-of-court statements the 5^th applicant had said that although he had responded positively to the telephone invitation "to come down there for assistance, that is …hitting people" he had added (page 43S) ".. I didn't expect that they would take things like water pipe." Further, that he had confirmed that in his testimony (page 80K-L), "…it had never occurred to him that they would take iron pipes during the fight".  The judge reminded the jury (page 77 M) that it was the evidence of the 5^th applicant that he had been handed a water pipe by the 2nd applicant.  Moreover, that evidence was confirmed specifically by Chui Cheuk Hin (PW23) (page 59 A) and the 2nd applicant (page 70 A).  The latter said that he had been told to distribute them by ‘Ka Lok’.  Finally, she reminded them that it was the evidence of Li Cheuk Wa (PW 22) that the 5^th applicant was already holding a metal pipe when he had given his discreet advice to his friends that they should not take up or accept pipes (page 57 Q-R).  Of the fact that the 5^th applicant had then gone off with the others, the judge reminded the jury of his testimony that he was afraid that he would be hit if he did not do so and that he felt helpless (page 82 D-E).

149.Of the issue of the evidence of whether or not the deceased or his group were known to the 5^th applicant, the judge reminded the jury that in his out-of-court statements the 5^th applicant had said that he did not know them.  Later, the judge reminded the jury that the 5^th applicant had testified that in his out-of-court statements to the police that he had tried to tell the truth as best he remembered it (page 79 C-D).

150.Of the 5^th applicant’s acceptance in his testimony that in the ensuing chase of that group of young men that, whilst holding a water pipe, he had chased but not hit people, the judge reminded the jury of his testimony that he had done so ".. to make it look like he was helping Ah Lok" and that he did so ".. because he was afraid that if he did not do that, Ah Lok would hit him with a water pipe." (Page 80 L-M)

151.The jury was reminded of the evidence of the 5^th applicant of his position and conduct at the time that others were attacking the deceased as he lay on the ground, namely that he stood together with Li Cheuk Wa (PW 22) and Chui Cheuk Hin (PW23) on the circular steps simply watching the assault on (page 78 A-D).  Earlier, the judge read to the jury his repeated assertions in his out-of-court statements that at the time that he witnessed the assault on the deceased he was frightened and had not approached the scene of the attack any closer but had remained where he was standing. (Pages 39 M; 40D-E and 42 T-U)

152.The judge did remind the jury that Li Cheuk Wa (PW 22) testified that, together with the 1^st applicant and Chui Cheuk Hin (PW23), he stood and watched as the deceased was attacked on the ground and that he said that he was "very scared" (page 55K).  Li Cheuk Wa said that he had not seen the 5^th applicant during the attack and only saw him again when he was leaving Lotus Tower but that a little later he had seen him disposing of a water pipe in a rubbish bag (page 55P-Q).  The judge reminded the jury of the effect of cross examination on behalf of the 5^th applicant of the witness, namely (page 57 P-R):

"… this witness’s reluctance and fear, the fact of his having discreetly advised his friends not to pick up or accept bars", and the fact that by the time the 5^th accused was already holding an iron bar."

153.The reference to his "reluctance and fear" clearly reminded the jury of his acceptance, in cross examination on behalf of the 5^th applicant, of the suggestion that from the time that the water pipes were distributed that he was "role-playing really, trying to look as though you were assisting the bar-carrying people without actually assisting them", and to his similar acceptance that he feared that he might be beaten or assaulted if he did not do so. (Transcript page 189 O-U.)

154.Finally, the judge reminded the jury of the evidence of the 5^th applicant that on the day after the killing he had read reports in the newspapers and then told his mother, confirmed in her testimony, that he had been present at the scene of the killing armed with an iron bar but that he had not hit anyone.  He said that he had been "a hundred per cent cooperative with the police in answering their questions". (Page 78 Q-79 B.)

155.As noted earlier in respect of the case of the 1^st applicant, the rhetorical question of the judge, of which criticism is made, namely (page 85 O-Q) "Would anyone stand there watching such a terrible, frightening and dangerous thing going on unless he was part of a group who had chased and caught the deceased and was therefore there when the deceased was beaten to death?" is to be viewed in the context of all the evidence.  In particular in respect of the 5^th applicant, what he had done prior to reaching the scene of the killing, what he did there and what he did afterwards.  Of course, highly relevant to what he had done was his account of why he had so conducted himself.  As the judge made clear, a consideration of all of the evidence was relevant to the crucial question that the judge to went on pose for the jury, namely in standing nearby to the deceased after he had been caught by his assailants, did the 1st applicant did so, "…so as to encourage another or others to beat him".   

(b)   Out-of-court statements of the applicants.

156.Mr Haynes is correct in asserting that the judge did not direct the jury in the general good character direction, that she gave in respect of credibility of the applicants, that it applied not only to their testimony but also to their out-of-court statements.  However, not only had the 5^th applicant testified at trial but also he had testified that the account that he had given to the police in interviews, whilst matters were still fresh in his repeated mind, was the truth as best he could remember it. (Page 79 C-D) Moreover, he adopted all his material out-of-court explanatory/exculpatory statements in his evidence, in consequence of which those assertions were subsumed in his testimony.  Accordingly, there was no need for the judge to give a separate direction in respect of the exculpatory assertions made in out-of-court statements. [See R v Vu Trong Minh [1995] 1 HKCLR 24 at 30; HKSAR v Huang Xiang Rong [2010] 1 HKLRD 750 at 773, paragraph 61.]

157.The judge directed the jury correctly to have regard to the entire contents of the out-of-court statements of the applicants:

".. not only to the parts that are incriminating but also, whether or not I make specific reference to them, exculpatory part consisting of assertions, excuses and explanations that the maker may be able to rely on."

158.Further, although she gave the jury the standard direction in respect of the respective weight that they might attached to inculpatory statements in contrast to exculpatory statements, she made it clear that a decision in that respect was entirely a matter for the jury. (Page 20 G-S)

159.Shortly prior to giving that direction to the jury, the judge gave a general direction in respect of the oral testimony of an applicant at trial, namely that (page 19 I-K):

"..what an accused says in his own favour or in favour of a co-accused suffices if it is true or might be true while what he says against a co-accused should not be acted upon unless you feel sure that it is true.”

[Italics added.]

160.There is no merit in these proposed grounds of appeal against conviction.

(c)   identification.

161.There is no dispute that the judge did not remind the jury of the evidence of the identification of the 5^th applicant by the 2^nd applicant as one of three persons, another being Billy, depicted in photograph 64 of Bundle C on the ground floor of Block 3 of Lotus Tower, leaving the nearby scene of attack on the deceased immediately after the attack, nor that the 5^th applicant denied in testimony that he was that person.  Clearly, an identification made in court for the first time from a CCTV photograph by the 2^nd applicant of a person presenting almost entirely a view of his back was inherently unreliable.  Moreover, the 2^nd applicant had given no explanation whatsoever for the basis of that identification.  His evidence was a bare affirmative response to a suggestion by counsel for the prosecution that the person on the right hand side of Billy in photograph 64 was the 5^th applicant.  At the time the evidence was led the objection made by Mr Haynes was limited to the fact that the question was a leading question.  Of course, as the judge pointed out, prosecuting counsel was cross-examining the witness.

162.At the conclusion of all the evidence the matter was raised again with the judge by Mr Haynes.  On this occasion, the judge was invited by Mr Haynes to direct the jury that the identification was unreliable on the basis that it was a view of the back of the person only.  The judge invited Mr Haynes and counsel for the prosecution to research the matter and to make further submissions subsequently.  It appears no further submissions were made.  However, although counsel for the prosecution did not advert to the evidence in his closing speech the judge was reminded of the issue when Mr Haynes dealt with it in the final part of his closing speech to the jury, albeit that he did not identify the witness as being the 2^nd applicant.  Indeed, Mr Haynes went as far as to tell the jury that they would be directed to ignore the evidence by the judge.  Although the judge did not give the direction sought and anticipated by Mr Haynes he did not raise the matter with her at the conclusion of her summing up.

163.The necessity that the jury be directed on the matter by the judge was made all the greater by Mr Haynes’s suggestions in his closing speech of the inferences to be drawn adverse to the 5^th applicant in consequence, namely ".. that he was close to Billy shortly after the attack” and that the evidence was contrary to the 5^th applicant’s evidence that “.. he took the direct route to the next level and the escape route, and therefore wouldn't have been in that position, facing…with his back to the camera."

164.The context in which the identification by the 2^nd applicant of the 5^th applicant in photograph 64 is to be viewed is that the 2^nd applicant went on to identify other persons in the following sequence of CCTV photographs taken at the same location.  He said that Chui Cheuk Hin (PW 23) was depicted in photograph 65, taken two seconds later, and that Ah Lok was depicted in photograph 66, which bore the same time as photograph 65.  They are all to be seen fleeing in the same direction.

165.In her summing up, the judge reminded the jury that Chui Cheuk Hin (PW 23) testified that the group which had been hitting the deceased: (page 59 M-N)

"went up to the staircase of Block 3, running past this witness, who followed them."

In his testimony, he identified Billy as the person depicted in the middle of a group of three young men depicted in photograph 64.  He did not recognise the other two. He identified himself running just behind and following two of those three men, not Billy, in photograph 65.  He was unable to identify the person running immediately behind him in photograph 66.  Those photographs were all taken of the ground floor of Block 3 of Lotus Tower.  Chui Cheuk Hin (PW 23) testified that he had opened the gate (page 239 O) and that Billy was identified in photograph 70 passing through the gateway.  That photograph was taken 24 seconds after photograph 64.  Other photographs taken in the following few seconds show a group of young men passing through the gate.  In photographs 79 and 80, taken of the entrance to the car park of Block 4 of Lotus Tower, he identified Billy passing through the doorway in the first photograph and, two seconds later, the 5^th applicant opening the same door.  Photograph 80 was taken 28 seconds after photograph 64.

166.On occasions, when evidence that is either inadmissible or wholly unreliable is placed before a jury, the course fairer to the applicant so affected may be for the judge to ignore the evidence and not to make reference to it in a summing up, lest so doing may be to the disadvantage of that defendant in that it is inevitably brought back into the memory of the jury.  However, clearly that was not the course that Mr Haynes indicated to the judge he wished her to pursue nor was it possible in light of his closing speech.

167.In our judgment, the judge ought to have given the direction sought by Mr Haynes, namely that the jury should ignore the identification by the 2^nd applicant of the 5^th applicant as a person depicted in photograph 64 of Bundle C as wholly unreliable.

Material non-direction.

168.Next, it is necessary to consider whether or not the judge’s failure to so direct the jury was a material non-direction.  As Mr Wong has pointed out, the context in which the non-direction is to be viewed is the overall evidence of the conduct of the 5^th applicant.  

169.There was no dispute at trial that the 5^th applicant armed with a water pipe, possession of which he had taken in the rear lane, together with others so armed, including Billy, had made their way to the staircase in Block 3 of Lotus Tower down which they rushed to confront and chase the other group of young men. The 5^th applicant testified that whilst holding the metal pipe in his right hand he had chased people of the target group in the vicinity of the attack on the deceased.  He was pretending to catch them to hit them and did not strike anyone let alone the deceased. Then, he stood near the 1^st applicant, Li Cheuk Wa (PW 22) and Chui Cheuk Hin (PW 23) on the semicircular stairs and watched Ah Lok and Billy beating the deceased as he lay on the ground.

170.The 2^nd applicant and another person joined in that attack.  After Lo Shu Fat had been put to flight by Ah Lok, when he sought to intervene on behalf of the deceased shouting "Don't hit" and following shouts of "Police" and "Run" the 5^th applicant ran by the most direct route to the staircase where he and others in the group waited for Chui Cheuk Hin (PW 23) to open the gates on the second floor of Block 3 Lotus Tower through which they then passed.  Chui Cheuk Hin (PW 23) identified Billy passing through those same gates and then through the entrance to the car park of Block 4 closely followed by the 5^th applicant, respectively 24 seconds and 28 seconds after photograph 64 of Bundle C was taken.

171.Finally, the 5^th applicant testified that he had seen Billy disposing of his metal pipe in a rubbish bag in the rear lane, at which place the metal pipes had been distributed first of all, so he had discarded his pipe at the same place.

172.It follows that the evidence was that that the 5^th applicant had begun and ended his journey in the rear lane armed with a water pipe in the company of Billy.  He had rushed down the staircase from the second floor of Block 3 of Lotus Tower behind Billy and others to confront the other group of young men.  He fled in a group of which Billy was a part.  No issue was taken with the evidence that he was in the immediate company of Billy in the flight in photographs taken within 30 seconds of photograph 64 of bundle C.  Clearly, there was overwhelming evidence that the 5^th applicant was an active participant in the group’s conduct.

173.The issue for the jury, was whether or not his evidence “was or might be true”, that he was only pretending to participate in that conduct.  Accordingly, in our judgment the failure of the judge to give a direction to ignore the identification of the 5^th applicant in photograph 64 of bundle C was not a material misdirection.

(d)   inferences.

174.The complaint that is made in respect of the judge’s directions in respect of inferences (page 7 R-9 R) is not that they were wrong in law, rather it is that, in illustrating how they were to be drawn properly, the judge did not give greater emphasis to the testimony of Li Cheuk Wah (PW 22) in cross-examination on behalf of the 5^th applicant.  That evidence was obtained by simple affirmative answers to a series of leading questions to the effect that when the water pipes were produced in the rear lane, in fear of being assaulted, he was too afraid to run away and thereafter he had pretended to support the group, never having become a party to a joint enterprise to cause serious bodily injury to anyone (Transcript pages 1413 L-1414 T;1416 O-T.)

175.Although the judge’s description of the evidence elicited in cross-   examination on behalf of the 5^th applicant was brief, it was succinct and accurate, namely that he had conducted himself with “reluctance and fear” (page 57P-Q)) and, in particular, that he had discreetly advised his friends not to take possession of the water pipes in the rear lane.

176.Similarly, the judge correctly summarised the testimony of Li Cheuk Wa in respect of the 5^th applicant, namely that he had seen the 5^th applicant in possession of a metal pipe in the rear lane after which he had followed “… a group of three or four persons holding pipes, who were chasing the other group towards the entrance of Tower 3.” (Page 55N-O.)  He had not seen the 5^th applicant during the attack but had seen him afterwards disposing of a pipe in a rubbish bag in the rear lane.

177.In the result, the point was properly and sufficiently made to the jury that a prosecution witness, albeit not one armed with a pipe and not one who had chased others at Lotus Tower, testified that he was pretending to go along with the group from the rear lane to Lotus Tower and elsewhere subsequently, just as the 5^th applicant testified was his position.  There is no merit in this proposed ground of appeal against conviction.

(e)   Foresight as to the carriage/use of weapons.

178.As the judge reminded the jury (page 36 E and P) the 5^th applicant accepted in his out-of-court statements that he had agreed to requests from the 2^nd applicant and Li Cheuk Wah (PW 22) to meet up with them and others to assist in a fight.  He understood that to involve "hitting people" but he went on to explain that he "… didn't expect that they would take things like water pipe." (Page 43 R-S.) In cross-examination on behalf of the 1^st applicant, the 5^th applicant confirmed that to be the case (page 80 K-L).  Also, he confirmed his evidence in chief that he had pretended to chase people in order to hit them in order to give that appearance to Ah Lok, adding that he done so because he was afraid that if he did not do so Ah Lok would hit him with a metal pipe. (Pages 77U and 80 M.)

179.There was no dispute that the 5^th applicant had come into possession of a metal pipe in the rear lane behind Choi Lung Games Centre and that he remained in possession of it until he returned to the rear lane sometime later from the scene of the killing.  He had concealed the pipe beneath his clothing in his journey to Lotus Tower but had retrieved it and carried it in his right hand when he was chasing people at Lotus Tower. (Page 42.)

180.In her summary of the 5^th applicant’s testimony the judge went on to remind the jury that, in cross examination by counsel for the prosecution in respect of what it was that he had expected after he had encountered the unexpected distribution of metal pipes in the rear lane to some of the members of his group, he had said that “… perhaps they would be used to threaten or hit people." (Page 81 S-T.) Also, the 5^th applicant had accepted that if the person was hit hard enough with one of the pipes "there would be a very serious injury". In that context, the 5^th applicant said that he had gone off with that group of persons because "he was afraid that he would be hit if he did not". ( Page 82 A-D.)

181.It is clear from a consideration of the judge’s overall summary of the 5^th applicant’s evidence relevant to this issue, having regard to the scheme that she adopted of setting out the evidence of the 5^th applicant in the sequence in which it was produced in response to question by various counsel, that the judge was making it clear that his account was that at the outset he had not expected any weapons to be produced or distributed to his group but, when they were produced, he had conducted himself as he had done in fear that if he did not appear to be joining in with the others he might be hit with a water pipe himself.  Notwithstanding counsel’s concession to the contrary, there was nothing illogical or inconsistent in the 5^th applicant’s evidence in respect of the two separate issues nor did the summing up suggest otherwise.

Conclusion.

182.For the reasons set out above, we are satisfied that there are no merits in the proposed ground of appeal against conviction sought to be advanced on behalf of the 5^th applicant.  Accordingly, his application for leave to appeal against conviction is dismissed.

The applications for leave to appeal against sentence.

183.The 1^st, 2^nd, 4^th and 5^th applicants also apply for leave to appeal against sentence.

184.Originally none of them were legally represented. However, legal aid was later granted to the 2^nd, 4^th and 5^th applicants after Mr John Haynes submitted grounds of appeal against sentence on behalf of the 5^th applicant on a pro bono basis.

The sentences imposed

180.      The 1^st applicant, who was aged 18 at the time of the offence, was sentenced to life imprisonment.

181.      The 2^nd applicant, who was aged 17 years (18 days short of 18, having been born on 12 September 1989) at the time of the offence, was sentenced to a fixed term of 20 years.

182.      The 4^th applicant was 16 years old at the time of the offence and he was sentenced to a fixed term of 16 years.

183.      The 5^th applicant was 15 years of age at the time of the offence and he was sentenced to a fixed term of 18 years.

The applications

1^st applicant

184.      We can quickly deal with the 1^st applicant’s application.  In his home-made grounds of appeal, the 1^st applicant complained that his sentence was too excessive.  He did not make any oral submission in court.

185.Section 2 of the offences Against the Person Ordinance, Cap. 212 provides:

“Any person who is convicted of murder shall be imprisoned for life. However, if it appears to the court that a person convicted of murder was under 18 years of age at the time of the offence, the court has a discretion as to whether the person should be sentenced to imprisonment for life or to imprisonment for a shorter term.”

186.As the 1^st applicant was 18 at the time of the offence, the only and mandatory sentence the court could impose is one of life imprisonment.  There is no merit in the application for leave to appeal against sentence and we refuse leave for such an application.

The 2^nd applicant and 4^th applicant

187.Neither Mr Loughran nor Mr Stirling filed any grounds of appeal on behalf of the 2^nd applicant and 4^th applicant.  To the extent that it advanced their clients’ case, both counsel adopted the submission of Mr Haynes made for the 5^th applicant.

The 5^th applicant

188.Mr Haynes conceded, after viewing relevant authorities in Hong Kong, that the sentence imposed on the 5^th applicant could not be said to be wrong in principle.  He nevertheless submitted that the sentence of 18 years was manifestly excessive in that the trial judge has failed to take adequately into account the 5^th applicant’s age, his actual participation in the offence and his remorse and co-operation with the police.

189.Mr Haynes emphasized, time and again, that although the 5^th applicant was tall and of a big build, he was only 15 at the time – the youngest of them all.  He also stressed that the 5^th applicant was considerably younger than those attackers who were never apprehended.  Mr Haynes complained that the trial judge has failed to give sufficient regard to the 5^th applicant’s youth and immaturity.

190.In relation to the youth of the 5^th applicant, Mr Haynes also prayed in aid the sentencing procedure developed in the United Kingdom for the sentencing of juvenile offenders convicted of serious crimes – with particular reference to the case of R v Sullivan & Others [2005] 1 Cr App R 3, and submitted it is now time for the Hong Kong courts to have regard to the range of sentences proposed under the said sentencing scheme and reduce the harsh sentences imposed on young offenders.

191.As to the part played by the 5^th applicant, Mr Haynes submitted that, although the 5^th applicant was carrying a metal pipe, he did not actually attack anyone, and the deceased would have died with or without the 5^th applicant’s participation.  The sentence of 18 years imposed on the 5^th applicant was therefore “wholly inappropriate” with regard to the 5^th applicant’s actual participation.

192.Mr Haynes submitted that the 5^th applicant, upon being urged by his family, co-operated with the police during their investigation and was also remorseful for his participation, yet the trial judge has not taken these factors adequately into account when considering the appropriate sentence.

193.Mr Haynes also referred to a number of Hong Kong cases involving young persons who took part in gang fights being convicted of manslaughter after trial.  The sentences imposed in those cases were under 10 year, ranging from 6 to 8 years.  Mr Haynes submitted that there should not be such a big difference between the sentences imposed for the offence of murder in the present case and those imposed for manslaughter in other cases where the offenders’ participation was similar – joining a gang fight.

The sentencing procedure developed in the UK

194.As acknowledged by Mr Haynes, this is not the first time a Hong Kong court has been referred to the sentencing procedures developed in the United Kingdom.  In HKSAR v Yeung Mok Yeh and Anor (unreported) CACC 483/2004, Stock JA (as he then was), giving the judgment of the Court, had this to say about the relevance or applicability of the English regime (para 26 of the judgment):

“26. We were, in the course of submissions, taken to the statutory scheme now prevailing in the United Kingdom by which judges are guided as to the setting of minimum terms; as well as to decided cases in that context in relation to youth. We do not think that the terms set elsewhere are of particular use. Policy considerations, particularly for offences of the kind with which we are called upon to deal in this particular case, may vary significantly from one jurisdiction to another. That is not to say that sentencing decisions elsewhere, in the debate which they reveal as to the weight to be given to various factors, are anything other than helpful. So, for example, we see in two of the cases that were drawn to our attention, R v Sullivan [2005] 1 Cr App R 23, and R v Peters [2005] EWCA Crim 605, a repeated emphasis upon the extraordinary range of factual situations underlying murder cases. …”

195.What this Court said in that case is equally applicable to the present case.  We do not find the minimum terms set elsewhere of particular use here in Hong Kong, particularly when that sentencing procedure was under a statutory scheme.

Youth

196.The youth of an offender is naturally a matter of real concern to any judge.  No court would sentence a young person to either life imprisonment or a long prison term light.  Here, the trial judge exercised her discretion under Section 2 and did not impose a sentence of life imprisonment on any of the applicants who were under 18 at the time of the offence.

197.When considering the appropriate sentences in relation to the three applicants in this case, while their young age – in particular the 15-year-old 5^th applicant – is of grave concern to the court, it must not be forgotten that the courts have a duty to impose a sentence which has both the punitive and the deterrent elements.  Here, a group of persons – many armed with metal water pipes, ambushed and set upon an unarmed rival group, brutally attacked and killed one of the youths who tripped and fell while being chased.  The attack was well-planned and took place within the precincts of a housing estate, turning the place into a battle field.  While the attack took place late at night, there might well have been residents or passers-by going about their lawful business who were affected by this shocking incident.  In view of the circumstances of this offence, a sentence severe enough to be both punitive and deterrent is warranted.

Extent of participation

198.The participation of the 2^nd, 4^th and 5^th applicants was not identical.  Without repeating the full particulars already mentioned earlier, in a nutshell, the 2^nd applicant armed himself with a metal pipe and physically attacked the deceased, though not delivering any fatal blow; the 4^th applicant did the reconnaissance and did not take part in the actual attack; and the 5^th applicant chased the rival group while armed with a metal pipe, though there was no evidence that he physically attacked the deceased.

199.All three applicants were found guilty by the jury after trial on the basis that they were all parties to a joint enterprise pursuant to which the deceased was unlawfully killed and that they intended the deceased at least be caused really serious harm.  As in most cases of joint enterprise, different members to the joint enterprise may play different roles to achieve their joint aim.  Here, the 4^th applicant played a completely different role to that of the 2^nd and 5^th applicant.  The 4^th applicant’s part was completed after he did the reconnaissance.  The role played by both the 2^nd and the 5^th applicant was being armed with metal pipe and joined in the attack.  That the 2^nd applicant did not deliver the fatal blow; and that there was no evidence that the 5^th applicant had delivered any blows at all, did not change the fact that they were both guilty of murder on the basis of each of them being a party to the joint enterprise.  There is no merit in Mr Haynes’ submission that the deceased would have died with or without the 5^th applicant’s participation.

200.In reaching the respective sentences, the trial judge has taken into account the different roles played by these three applicants.  The trial judge was of the view that the role played by the 5^th applicant was less serious than that of the 2^nd applicant, and that the role played by the 4^th applicant was less serious than that of the 5^th applicant.  In our view, the trial judge’s observation was correct and the different sentences imposed on the three applicants properly reflect their culpability.

Remorse and co-operation

201.It was said that the 5^th applicant was remorseful and co-operated with the police.  However, the fact of the matter was that the 5^th applicant was found guilty after trial, after the jury rejected his evidence. 

Other cases

202.We do not think it necessary or helpful to refer to those cases cited by Mr Haynes in relation to the range of sentences imposed on persons involved in gang fights similar to that of the present case, those persons having been charged with murder but found guilty of manslaughter after trial.

203.The three applicants were found guilty of murder, not manslaughter.  The sentences imposed on persons found guilty of manslaughter has no bearing on the three applicants here.  The sentence must properly reflect the gravity of the offence of murder in this case.

Conclusion

204.In our view, the trial judge, having carefully considered the respective roles played by the three applicants, correctly identified their respective gravity.  She has taken into account their personal background, including their age and what was disclosed in their background reports.  The sentence imposed on each of the three applicants was appropriate and could not be said to be manifestly excessive.

205.For the reasons stated, each of the applications for leave to appeal against sentence is refused.

Orders

206.As we have recorded in the body of this judgment, we granted the 3^rd applicant’s application for leave to appeal his conviction during the course of the appeal hearing itself.  This judgment contains our reasons for so doing.

207.In respect of the remaining applicants, that is, the 1^st, 2^nd, 4^th and 5^th applicants, for the reasons given, their applications for leave to appeal against conviction and sentence are dismissed.

Mr Wesley W.C. Wong, SADPP and Ms Hermina Ng, PP for Respondent

Mr John Hemmings, instructed by Messrs Tang, Wong & Cheung (assigned by Director of Legal Aid) for 1^st Applicant (re: conviction)

Mr Paul Loughran, instructed by Messrs Tang, Lai & Leung (assigned by Director of Legal Aid) for 2^nd Applicant (re: conviction and sentence)

Mr William NC Stirling, instructed by Messrs Knight & Ho (assigned by Director of Legal Aid) for 3^rd Applicant (re: conviction)

Mr William NC Stirling, instructed by Messrs Anthony Kwan & Co. (assigned by Director of Legal Aid) for 4^th Applicant (re: conviction and sentence)

Mr John Haynes, instructed by Messrs Betty Chan & Co. (assigned by Director of Legal Aid) for 5^th Applicant (re: conviction and sentence)

1^st Applicant, in person (re: sentence)

Applications for leave to appeal to Court of Final Appeal by 1st, 4th and 5th Applicants refused by Court of Final Appeal. Please refer to FAMC19 & 20/2011 dated 20 November 2011