HKSAR v. Wong Sui Wai

CACC 60/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 60 OF 2007

(ON APPEAL FROM HCCC 171 OF 2006)

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BETWEEN

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Before: Hon Yeung JA, Lunn and Saw JJ

Date of Hearing: 28 January 2011

Date of Judgment: 3 March 2011

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the Court):

Introduction

1.The applicant, Wong Sui-wai and the deceased, Chau Siu-lung were husband and wife. They met in Shenzhen when she was working as a prostitute and they married on 15 September 1995. A son (“Fai Chai”) was born on 3 February 1996. Their relationship had always been tempestuous.

2.The deceased and Fai Chai came to Hong Kong in 2001 and she began working in the sex trade again, first as a hostess and then in a one-woman brothel. She met another man and her marriage with the applicant soon broke down.  A decree absolute was granted on 9 December 2004 and the applicant was granted custody of Fai Chai with reasonable access to the deceased.

3.The applicant was aware of the deceased’s occupation, and despite the divorce he helped her to get a tenancy of the premises in connection with her trade and in fact enjoyed financially the benefit of her work. The applicant, however, was not prepared to accept the deceased having a new relationship and he wanted to maintain some form of relationship with her.

4.The deceased met a Mr Chan and formed an affectionate relationship. Mr Chan gave her sufficient fund to purchase a flat in Tsuen Wan (“the flat”) and helped her to improve her livelihood.

5.Somehow, the applicant found the divorce unacceptable and he began pestering the deceased to give up her work and Mr Chan although he was unable to provide anything in their places. There were arguments and violence throughout the relationship, even after the divorce. There was suggestion that the applicant made use of Fai Chai’s custody to try to stay with the deceased and to maintain a relationship with her.

6.The applicant was allowed to stay in the flat with the deceased and Fai Chai, although another room in a nearby Kam Shek Building was also rented for his use.

7.There was suggestion that the applicant reneged on his promise to give up Fai Chai’s custody to the deceased and was concerned about the benefit under some insurance policy. He was also concerned that Fai Chai appeared to like Mr Chan and had a friendly relationship with him.

8.The deceased had by then stopped working as a prostitute, but the applicant refused to move out of the flat. It appeared that the applicant often threatened to remove Fai Chai to the Mainland although he had no money and no real plan for him.

9.The deceased became very unhappy because of the custody issue and, she being a temperamental person, there were continuous and repeated arguments and violence with the applicant. Documents seized from the flat and on the applicant’s person demonstrated frustration and anxiety on the part of the deceased over her relationship with the applicant.

10.The deceased had made a report to the police on 29 August 2005. DPC 58534 Chu Wai-tung went to the flat to investigate and noticed red marks on the deceased’s neck. The deceased and Fai Chai were both sent to Princess Margaret Hospital and the deceased was found to have two red marks, about the size of a finger tip, at both sides of the her front neck near the throat, which were consistent with someone grabbing her neck.

11.On the morning of 21 September 2005 after Fai Chai left for school, there were again rows between the applicant and the deceased. The applicant grabbed the deceased’s neck and killed her. The quarrel related primarily to Fai Chai’s custody.

12.After killing the deceased, the applicant left Hong Kong for the Mainland via Lo Wu at about 3 p.m. on the same day. Shortly before he left Hong Kong, he rang Fai Chai’s school, requesting the school to allow Fai Chai to stay behind as he would only be picked up later that day. The applicant also called someone to pick up Fai Chai from the school, saying that he was going to Shenzhen with the deceased to have her teeth fixed.

13.The deceased’s body on the bed, covered with a quilt and with her head on a pillow, was only discovered on 29 September 2005. The autopsy report confirmed that the deceased died of manual strangulation with the use of considerable amount force for a minimum of 15 to 30 seconds. There were bruises and abrasions on the limbs which were consistent with the suggestion that her body had been dragged into the bedroom. The air-conditioner of the bedroom was left on at a low temperature. The fan and the television were also turned on.

14.In a plastic bag inside a drawer, there were the deceased bank passbook, a standard Tenancy Agreement for the Kam Shek Building room and an Apple Daily article. The article, published on 24 March 2001, related to a manslaughter case in which a 2-year sentence was imposed on the defendant after he pleaded guilty to manslaughter. The defendant in that case killed his Mainland wife because she deserted him and their son to work in a night club in order to meet rich people. When the defendant tried to save the marriage and in a heated argument, the wife provoked him by saying that she had met a “rich man” who gave her money and that she “enjoyed making love with other men than with the defendant.”

15.The police also found, in the flat, a homework book of Fai Chai’s school in which there were four pages bearing the deceased’s name and what appeared to be letters written by the deceased to her parents setting out her grievances against the applicant. The deceased suggested that the applicant would not allow her to live with Fai Chai, thus ruining her life. She alleged that the applicant had “forced her to death” and at one time she did think of committing suicide. However, she said she gave up the idea as she did not want the applicant to take her money which would all be left to Fai Chai.

16.The applicant had been put on the Immigration Watch List and on 22 February 2006, he returned from the Mainland via Lo Wu and was arrested.

17.The applicant was charged with murdering the deceased and appeared before Beeson J for trial. On 10 February 2007, the applicant was convicted as charged and sentenced to life imprisonment. He now seeks leave to appeal against conviction.

The Prosecution Evidence

18.The prosecution evidence relating to the background of the case was undisputed. The applicant accepted that he had killed the deceased.

19.It was emphasized that the applicant and the deceased had frequent quarrels and fights, sometimes resulting in interventions by the police. There were occasions when Fai Chai had to be taken to the deceased’s sworn mother in a police car.

20.There was evidence that the applicant had complained to others that the deceased had tried to chop him with a knife. A witness had described an occasion when the deceased went out to buy cigarettes and the applicant ran after her, saying that he feared that she would commit suicide although he did not seem to believe it as he was laughing.

21.The deceased’ relationships with other men were confirmed. One of her boyfriends, Mr Chan had given her sufficient money to buy the flat. One witness suggested that the applicant insisted to live in the flat, possibly for the sake of Fai Chai, but she denied the suggestion that the applicant was genuine in being attentive, loving and caring for the deceased.

22.The police evidence and the scientific evidence relating to the discovery of the deceased body and other exhibits were undisputed. The police found, in the flat, the Apple Daily article together with a standard Tenancy Agreement for the Kam Shek Building room. There was also a notebook with a photograph of Mr Chan.

23.After the applicant’s arrest, the police found from his person a letter ostensibly written by the deceased. The letter was addressed to the deceased’s parents, complaining about the way the applicant had treated her. She said she had been suffering a lot in the hands of the applicant and that she wanted to commit suicide together with Fai Chai. She then said she had changed her mind and wanted Fai Chai to avenge her by killing the applicant himself as it was the applicant who had harmed her and wronged Fai Chai.

24.On being cautioned, the applicant said that he had a dispute with the deceased about Fai Chai’s custody, resulting in a quarrel and a conflict and they grappled with each other. The applicant further said that they grabbed the neck of each other and he let go when her body began to loosen up. He said he started to be a little afraid and he put her onto the bed before leaving the flat.

25.There were then five video recorded interviews of the applicant by the police, once on 22 February 2006 and four times on 23 February 2006.

26.It is not necessary to detail the contents of those interviews except to say that the applicant purported to describe what happened in the morning of 21 September 2005. There was suggestion that despite the divorce, the applicant continued to live with the deceased, but he had to leave the flat whenever Mr Chan came and that he found such arrangement unacceptable.

27.The applicant also claimed that he was unhappy about the deceased’s occupation, yet she was unwilling to abandon it. The applicant said after the strangulation incident on 29 August 2005, the deceased, as a condition of not pressing a charge against him, had asked for Fai Chai’s custody as well as the benefit of his insurance policy. The applicant alleged that the deceased teased him and provoked him by saying that she could regain the custody of Fai Chai with the help of Mr Chan and his friends.

28.The applicant repeated his claims of his many attempts to commit suicide after killing the deceased. He claimed not to realize that the deceased was dead when he put her onto the bed and he talked about his attempts to resuscitate her. He said he dared not make a report to the police for fear that the deceased’s brother and Mr Chan would harm him.

29.The applicant gave different explanations about the Apple Daily article. Initially, he said he wanted the deceased to learn a lesson from it and he then said he kept it because the name of the woman depicted in the article was similar to someone known to them. The applicant also explained why the air-conditioner, the television and the fan were all turned on when he finally left the flat. The applicant also talked about the unreasonable conduct of the deceased and how he was “choked with anger” over the deceased’s relationship with Mr Chan.

30.The applicant described how he gripped the deceased’s neck in the course of the struggle. He initially said he tried to take the mobile phone from her and grabbed her neck for 7 to 10 seconds. He then extended the period to about 10 seconds and later admitted the time could have been longer. It is fair to say that the applicant did mention various matters which could be described as provocative conduct of the part of the deceased when she refused to allow him take Fai Chai’s clothing and threatened to fight for his custody.

31.In a reconstruction which was also video recorded, the applicant demonstrated the struggle he had with the deceased and how he attempted to hang himself with a belt. He also talked about examining the deceased’s body when he thought she was still breathing.

The Defence Case and Evidence

32.The defence did not dispute that the applicant had killed the deceased, but suggested that he did not have the intention to kill her or cause her grievous bodily harm. It was also suggested that the applicant killed the deceased under provocation.

33.In his evidence, the applicant adopted much of what had said during the recorded interviews.  He emphasized the arguments, the fights and the physical abuse that went on throughout the marriage and said that they were more intense after he thought she was working in a one-woman brothel.

34.The applicant claimed that in all the arguments, it was the deceased who struck first, and he did not fight back, but just tried to restrain her. The applicant said the deceased had attacked him 10 to 20 times, sometimes with the use of a knife. He said he had to dodge and restrain her hands and sometimes pulled her hair when the force she used was too great.

35.The applicant further said that they would patch up their relationship two or three days later. He talked about the incident in August 2005 when he first grabbed the deceased’s neck. He said the deceased would not allow him to hang his clothes in the flat for fear that Mr Chan would be aware of his presence. He said the deceased had driven him to the wall and he grabbed her neck, but restrained himself when he thought of Fai Chai. He admitted that he had held her throat for several seconds when she tried to call the police, but denied that he was trying to kill her.

36.The applicant also talked about the incident on 21 September 2005. He said he grabbed her neck when she was lying on the floor, but insisted that he did not intend to kill the deceased. He said he sometimes loved her, and sometimes hated her because of her job and when she was cheating him. He said he killed the deceased because she got him worked up and he lost control.

37.The applicant said the deceased provided him with money to rent the room in Kam Shek Building so that he could avoid meeting Mr Chan in the flat although he continued to sleep with her every night. The applicant repeated what he knew about Mr Chan and his relationship with Fai Chai.

38.The applicant mentioned the dispute with the deceased in the early morning on 21 September 2005 over his attempt to take Fai Chai to Shenzhen. He said he did not intend to harm the deceased, but just wanted her to move so that he could get Fai Chai’s clothes.

39.The applicant emphasized that in the course of the argument, the deceased said to him, “Ah Wai, now I’ve got a property and I’m about to open a shop. My friend Chan is an accountant, (and) he knows a lot of lawyers. He will help me. Let’s see which side the judge will favour. You are living in a suite and you’re only doing odd jobs.”

40.The applicant claimed that he was so provoked by what the deceased said that he rushed at her when she stopped him from trying to get into Fai Chai’s room, he tried to bump her away. He also said he tried to restrain her when she took out the phone as he feared that she would again report to the police. The applicant agreed that the deceased wanted to live with Fai Chai, but he said she wanted the three of them to live together.

41.The applicant then suggested that the Apple Daily article might have been put where it was by decoration workers when they moved into the flat. He was unsure as to where he saw the article and if he had shown it to the deceased or the purpose of doing so. His explanation was different from what he said in the interviews.

42.He said after the strangling incident in August 2005, the deceased was asked to choose between Fai Chai and the insurance policies. The applicant accepted that the flat provided a better environment for Fai Chai than the room at Kam Shek Building, but claimed that the frequent appearance of Mr Chan was not good for Fai Chai. The applicant also claimed that the deceased looked down on him and that made his blood boil.

43.When describing the actual killing, the applicant said he used one hand to restrain her hand that was holding a mobile phone whilst putting his other hand between the deceased’s neck and shoulder and there was a struggle. He then said: “I managed to pick myself up and stopped her rising from the floor, she stayed on the floor. I felt the phone was no longer in her hand, so one of my hands was free. I then squeezed her neck with both hands. I was on top, she was on the floor. I was astride her but not sitting on her, and I grabbed her neck with both hands to restrain her.”

44.The applicant further claimed that it was chaotic and he was not sure if the deceased was grabbing his neck or pushing him away. He even said that the deceased could sometimes overpower him when they were fighting.

45.The applicant said he had tried to revive the deceased, but did not call the police for fear that she would press charges against him and that Mr Chan would get someone to “fix” him. He also said he had not checked the deceased’s breathing because he was not an ambulance man and he had no knowledge of that.

46.The applicant said he did not deliberately set the low temperature of the air-conditioner. He denied the suggestion that the Apple Daily article was meant to teach the deceased a lesson or to give her a warning. He said he just wanted her to see if the woman depicted in the article was their mutual friend.

47.The applicant appeared to suggest that he did not have any right to control the private life of the deceased after the divorce. He also said he only offered either the benefit of an insurance policy or Fai Chai’s custody to the deceased so that she would not press a charge against him.

48.The applicant called Mr Chan, Fai Chai and Madam Chiu as defence witnesses. In view of the undisputed facts and the applicant’s defence, the evidence of these witnesses may not be too significant.

49.However, Fai Chai suggested that in the arguments between the applicant and the deceased, he always complained about her work and her relationships with other men and wanted her to give them up. Fai Chai said the applicant offered to transfer the benefit of an insurance policy and his custody to the deceased for her not to pursue a charge against him in connection with the incident on 29 August 2005. Fai Chai said he wanted to stay in Hong Kong with the deceased and not return to the Mainland with the applicant and the applicant was angry at it. He suggested that the applicant was a fierce and violent person, particularly towards the deceased.

The Judge’s Summing-Up to the Jury

50.The judge gave the jury a very detailed summary of the evidence, particularly what the applicant said in the interviews. The judge emphasized to the jury the two issues involved in the case, namely the issues of intent and provocation. The judge gave the jury detailed directions on the relevant law.

51.The judge repeatedly reminded the jury that “unless the prosecution had made you sure of the guilt of the accused in respect of the charge, you must acquit him. The burden of proving the charge so that you are sure about the guilt remains with the prosecution. Any doubts that you have as to whether the accused had an intention to kill or cause serious bodily harm would mean that the prosecution has not made you sure of the guilt of the accused and it would be your duty to acquit of murder and go on to consider whether or not he is guilty of manslaughter. If you are not certain that all the elements of the manslaughter are established, you would acquit him”.

Grounds of Appeal

52.Mr. Philip Ross, on behalf of the applicant, basically argues two points. The first, relates to the response from the applicant after he was arrested when he said:

“On that day, my ex-wife and I had a dispute about the right of custody of our son. As a result, we quarrelled and subsequently we got into a conflict and then grappled each other. Both of us grabbed the neck of each other. Then her body began to loosen up and I let go. I started to be a little afraid and put her onto the bed. After that, I left her house.”

The second, relates to what was described by Mr. Ross as the absence of a formal "lies direction” by the judge to the jury.

53.Mr. Ross suggests that the applicant's statement on arrest was a "mixed" statement, containing not only admissions as to elements of the offence but also parts, as the judge directed the jury, capable of being read as excusing or exculpating the applicant, in particular in respect of the issue of the applicant's intention to kill or cause grievous bodily harm. The judge directed the jury:

“The admission relates to the intention, or rather, the lack of intention, to kill or cause serious bodily harm. You can be satisfied that he said those words, but you have to go on to decide whether what he said was true. The prosecution says that he is not telling the truth when he made this admission and he did have the intention to kill or cause serious bodily harm. It is for you to consider, in the context of the evidence as a whole, whether what he said was true. If you are not sure it was true, ignore it and direct your attention to the other evidence that may help you decide the question of intention.”

54.Insofar as the judge directed the jury that they should ignore what the applicant said if they were not sure that it was true, the judge fell into error. She should have told the jury that if what the applicant said was an assertion of a lack of intention to kill or cause really serious bodily harm, and that assertion "is or may be" true,  then they must acquit the applicant of murder. Mr. Ross relies on the often quoted case of Jim Fai v HKSAR (2006) 9 HKCFAR 85.

55.Mr. Ross also takes objection to the following direction of the judge:

“If you decide that any particular witness is lying, consider whether the lie is told to establish or strengthen the case against the accused. Is it a lie told to get the witness out some personal difficulty which is not really connected with the case, rather than to damage the accused? Perhaps a witness is trying to avoid blame some embarrassing but non-criminal behaviour.”

56.Mr. Ross suggests that the judge should have given a full "lies direction" in accordance with R v Lucas (1981) 78 Cr App R 159, as "there was a risk that the jury might wrongly infer guilt directly from a conclusion that the applicant was not telling the truth about the issues in interviews" and that "the jury may have engaged in an impermissible line of reasoning to convict". Mr. Ross argues that the applicant's conviction is unsafe.

Discussion

57.Chan PJ in Jim Fai (supra) analysed the need for the different treatment of the prosecution evidence and the defence evidence. At page 92 of the judgment, Chan PJ said:

“15. The prosecution has the burden of proving that the accused is guilty of the offence charged. The accused need not give evidence or call any witness to prove his own innocence, or indeed anything at all. If he exercises this right, it simply means that there is no evidence from the defence to undermine, contradict or explain the evidence adduced by the prosecution. If he chooses to give evidence or call any witnesses, he and his witnesses will be examined just like any other witness called by the prosecution and their evidence will be assessed by the jury in just the same way as with any other piece of evidence. The jury will decide what they would accept and what they would not accept. They are entitled to accept the whole of a witness’s evidence, or accept parts of it and reject other parts. They perform this task in respect of every witness, whether a witness for the prosecution or for the defence. In the present case, the trial judge had in his summing up correctly directed the jury in general terms along these lines.

16. However, there is a fundamental difference between the treatment of defence evidence and prosecution evidence in the jury’s deliberation of their verdict. It is only when the jury feel sure that the prosecution evidence is true and can be relied on that they can convict the accused. If they disbelieve the prosecution evidence or entertain a reasonable doubt in such evidence, they are not to convict upon it. On the other hand, when it comes to defence evidence, even if the jury totally reject it, they still have to be sure that the prosecution evidence is true and that there is no reasonable doubt before they can convict the accused. If they think that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case. In that case, the jury have to acquit him.

17. This crucial difference between the treatment of prosecution evidence and defence evidence necessarily follows from an application of the principle that it is for the prosecution to prove the guilt of an accused beyond reasonable doubt. It is therefore essential, in order to be fair to the accused, that the jury should be properly directed on this aspect in clear and simple terms. As Brennan J said in Liberato & others v R (1985) 159 CLR 507 at 515: “The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.” This was echoed by Bokhary PJ in HKSAR v Sze Kwan Lung (2004) 7 HKCFAR 475: “It was crucial that they receive a clear and accurate direction thereon. …” (at p.486, para.26) and “Whether by one form of words or another and whether in one way or another, that message must be conveyed to the jury.” (at p.487, para.27) See also Mortimer NPJ in Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, at 613, paras 28 and 29.

58.Of the tenor of the applicant's first statement to the police in answer to caution the judge said:

“That suggests a lack of intention or premeditation. There is also some suggestion of elements of self defence. There is also a suggestion of accident. The defence says that there was a lack of intention to kill or cause serious bodily harm.”

59.With respect to the judge, other than in respect of the killing not being premeditated, we are doubtful that the statement was capable of bearing the suggested exculpatory meaning. We agree with the submission of Mr. Robert S K Lee SC, counsel for the respondent, that there was insufficient threshold of evidence in that statement to raise the defences of self defence or accident. Similarly, there was insufficient evidence, on that brief response from the applicant, to raise the issue of lack of intent either. The statement was neutral on that issue.

60.Insofar as the statement contained an admission, it was of having killed the deceased. However, that was not in issue at the trial. It was an Admitted Fact that the applicant had "killed the deceased.. by manual strangulation inside the flat….The killing was unlawful."

61.The judge took a very favourable approach to the applicant in the meaning that she said was suggested by the applicant’s first statement. Even if such a favourable approach was justified, it simply meant that the applicant's first statement contained both inculpatory and exculpatory parts. It was a ‘mixed’ statement.

62.The inculpatory and exculpatory parts of a mixed statement are admissible as evidence of the truth (See R v Sharp [1988] 1 WLR 7; R v Chan Chi Wai [1992] HKCLR 1)

“That does not, however, mean that the two parts must carry the same weight. On the contrary, a tribunal may well take the view that the inculpatory part is more likely to be true and therefore give it great weight, and the exculpatory part, being self-serving, worthy of less, or even little, or even no weight. It is important to appreciate that the exculpatory part is admissible as evidence of its truth not in some vacuum. It is admissible to that end because without it the tribunal of fact is less able fairly to evaluate the facts admitted. (see R. v. Sharp [1988] 1 WLR 7, page 15d-e; and R. v. Donaldson (1976) 64 Cr App R 59, at page 64).”( Per Stock JA ,as he was then, in HKSAR v Poon Hoi Wing & Another, unreported CACC 313/2000)

63.The judge did remind the jury that the first statement was made some five months after the killing, "so there was time to consider what to say". Of that, she said, " It is exculpatory so you treat it with caution-in other words, he is saying that he had no intention. Do not look at it in isolation; look at it in the context of all the other video interviews as well."

64.Noting that in his testimony the applicant had "chosen to adopt those statements as his evidence and he has also given oral evidence about what he said in those statements" the judge invited the jury to "assess the content of the statements as a whole" in the context of the circumstances in which they were given, the submissions of counsel and "also in light of the oral evidence given in court". Of the video recorded interviews, the judge directed the jury, "…it is for you to decide what, if any, of the contents is true or may be true, but those items that you find are true, you go on to decide what weight you put on that material."

65.Later in her summing up, having reviewed the contents of the various video recorded interviews in great detail, the judge repeated to the jury her earlier reminder that in his testimony the applicant had adopted "as part of that evidence each of the police interviews, and has supplemented what was said in the police notebook, in the video interviews, and also what he said during the reconstruction.." Of the applicant's account of events, the judge directed the jury that they should acquit the applicant of murder:

“if…you find that what he said made you have doubts about the prosecution evidence on some points, or if you think that what the accused said is true, or might be true, then he has succeeded in casting doubt on the prosecution case.”

66.Of the crucial issue of the intention of the applicant at the time that he killed the deceased, the judge reminded the jury that in his evidence he had said:

“I didn't intend to kill my wife. Sometimes I loved her, sometimes I hated her. I hated her in that job. She was cheating on others. My personality is normally okay but if I got worked up, I would lose control. I lost control and I killed my wife is the only time. What she said really got me worked up.”

67.Given that in his testimony the applicant had adopted his out-of-court statements produced in the prosecution case as part of his evidence, supplementing them in his testimony, the out-of-court statements were subsumed into his testimony. In those circumstances the judge was not obliged to give the jury a direction as to the weight to be given to the exculpatory parts of the out-of-court statements of the applicant (see R v Vu Trong Minh [1995]1 HKCLR 24.) As the judge correctly directed the jury, the crucial issue was their determination as to whether or not his account of events and his explanation about various matters ".. is true, or might be true”, in which case they were to acquit the applicant of murder.

68.However, having embarked on a direction to the jury in respect of their approach to the out-of-court statement of the applicant it was incumbent upon the judge to give a correct direction. With respect to the judge, it was a misdirection to direct the jury in respect of the applicant's first out-of-court statement, having identified it as suggesting a lack of an intention to kill, that:

“…if you are not sure it was true, ignore it and direct your attention to other evidence that may help you decide the question of intention.”

That direction was appropriate to admissions relevant to the prosecution case only (see the Judicial Studies Board’s Specimen Direction 39), not to a ‘mixed’ statement, which also included explanations or excuses (see the Judicial Studies Board’s Specimen Direction 40). In respect of a mixed statement, the jury ought to have been directed that they were to have regard to the whole statement in determining where truth lay. Further, as they were directed subsequently, if they determined that his account was or might be true that they were to acquit him of murder.

69.In his final address to the jury, counsel for the prosecution at trial emphasized that the applicant was not an honest witness and that his evidence was not credible. There was also suggestion that the applicant made use of every excuse to reduce his culpability and that some of the answers he gave during the interviews were not true. However, the prosecution never relied on “those lies” to establish or assist its case against the applicant or strengthen an inference of guilt against him. The prosecution’s case was simply that the applicant’s evidence should be rejected because it was not true.

70.We just wish to refer to the often cited passage from the judgment of Chan PJ in Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 at p 128H to 129C:

“In view of the circumstances in which the criteria were set, a ‘full Lucas direction’ is not always necessary. Kennedy LJ in R v Burge and Pegg [1996] 1 Cr App R 163 at p 173 summarized the circumstances in which a Lucas direction is usually required. However, he added that ‘where there is no need for such a direction (as in the normal case where there is a straight conflict of evidence), it will add complexity and do more harm than good.’

In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate. R v Barnett [2002] 2 Cr App R 168, 173. In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient. See R v Dehar [1969] NZLR 763 at p 765; R v Man Bing Chou [1993] 2 HKCLR 71; R v Liacopoulos & Others (unreported, 31 August 1994), referred to in R v Burge and Pegg [1996] 1 Cr App R 163 at pp 172-173. In these situations, there is no danger of improper use by the jury of any lie told by the accused and there is no risk of miscarriage of justice.

Where there is a risk that the jury may regard lies told by an accused as probative of his guilt, as in the case where the prosecution address the jury on the basis that the accused has lied in what he said and that the lie is supportive of the prosecution’s case …, or where there is a danger that the jury may in any way misuse the lie, it is necessary to give a direction on lies…”

71.Stock JA (as he then was) in HKSAR v Chan Boon Ning (unreported CACC 571/2001) made similar observation at para 48 of the judgment:

“The need, or the absence of a need, for a lies direction has been the subject of many appeals, and there is now a tendency to raise the issue in virtually every appeal case in which it is discovered from post trial scrutinies of the summing up that a lies direction has or has not been given. It seems still not to be appreciated that a lies direction is reserved for the limited circumstances in which a lie is used not merely to undermine the credibility of the defence, but as in itself constituting a separate item of evidence or conduct in support of the case against the defendant, or where there is a danger that the jury might use a lie, not merely as undermining the credibility of a defence, but as itself probative of guilt.”

72.The judge had in fact not mentioned any lies by the applicant at all. Mr Ross says that the judge did direct on lies. He refers us to the following paragraph:

“If you decide that any particular witness is lying, consider whether the lie is told to establish or strengthen the case against the accused. Is it a lie told to get the witness out of some personal difficulty which is not really connected with the case, rather than to damage the accused? Perhaps the witness is trying to avoid blame for some embarrassing but non-criminal behaviour.”

73.Clearly the judge was only referring to the evidence of other witnesses and not that of the applicant. It was part of the judge’s general directions on how to assess the evidence of witnesses when she talked about different possible explanations for discrepancies such as faulty memories due to passage of time, confusion, mistakes or not being truth.

74.The judge did focus the jury’s attention to certain aspect of the applicant’s evidence, but only in relation to his credibility. The judge had directed the jury that if they were unsure about any of the evidence, they should give any benefit of the doubts to the applicant.

75.There was never any suggestion that the applicant’s lies were supportive of the prosecution case. Indeed the judge had repeatedly reminded the jury that unless the prosecution has made them sure of the guilt of the applicant, they must acquit him and that the burden of proving the charge so that they are sure about the guilt of the applicant remained with the prosecution.

76.There was, in our view, no possibility of the jury falling into the error of inferring guilt directly from the conclusion that the applicant was lying.

77.To suggest that the judge should give a full “Lucas” direction is to suggest that a full “Lucas” direction is necessary in practically every case when the credibility of the accused is invloved. Such suggestion contradicts what the Court of Final Appeal said in Yuen Kwai Choi (supra) and is simply not correct.

78.The only live issue in the case was the question of provocation. Mr Ross agrees that the judge’s direction on that issue was comprehensive, fair and correct. The jury concluded that the applicant had not been provoked.

Proviso

79.Proceeding, as we do, on the basis that the misdirection given by the judge in respect of the first out-of-court statement of the applicant was a material misdirection, we turn to consider the application of the proviso, pursuant to section 83 of the Criminal Procedure Ordinance, Cap 221.

80.As noted earlier, in his testimony the applicant adopted as his evidence his out-of-court statements produced in the prosecution case. Further, the judge reminded the jury in terms that it was the applicant's testimony that he did not intend to kill the deceased. That testimony was consistent with what the judge had told the jury was suggested in his first out-of-court statement. In particular, the judge directed the jury that in having regard to the applicant's account of events and explanations they were to acquit him of murder if they thought what he had said  “..is true or might be true.” Finally, in respect of the crucial issue of the applicant's intention she directed the jury:

“You must look at the entire body of what he says as a whole before you can make up your mind about what conclusions to draw about it.”

81.In the result, we are satisfied that the jury's attention was properly focused on having regard to the entire body of what the applicant had to say in determining the issue of his intention. In particular, that it was his case that he had not intended to kill the deceased and that if they found that account of events ‘might be’ true they must acquit him of murder. We are satisfied that in the circumstances of this case, and with a correct direction, the only reasonable and proper verdict of the jury would have been one of guilty of murder. Accordingly, we are satisfied that no actual miscarriage of justice occurred.

Conclusion.

82.We grant the applicant leave to appeal against conviction and, treating the hearing of the applications as the hearing of the appeal, for the reasons set out above we dismiss the appeal.

Mr Robert SK Lee, SC (DDPP) and Mr David Chan, SPP of the Department of Justice for the Respondent.

Mr Phillip Ross instructed by Messrs Reimer & Partners for the Applicant.