Chu Yiu Keung v. HKSAR

FAMC Nos. 19 and 20 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 19 AND 20 OF 2011 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 27 OF 2009)

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FAMC No. 19 of 2011

Between:

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FAMC No. 20 of 2011

Between:

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DETERMINATION

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Mr Justice Chan PJ(for the Appeal Committee):

1.At the conclusion of the hearing, we dismissed all the applications for leave to appeal saying that we would give our reasons later. This we now do.

2.These applicants (who were respectively D1, D4 and D5 at the trial) were convicted of murder arising from an attack by a group of young men (including these applicants) on a rival group of which the deceased was a member. D1 and D5 apply for leave to appeal against conviction and D4 and D5 (who were both under 18 years of age at the time of offence) apply for leave to appeal against their respective sentences of 16 and 18 years of imprisonment.

The evidence against these applicants 

3.The evidence showed that all 3 applicants were members of the attacking group of which the leader, Billy, had a previous grudge against the deceased. Billy decided to launch a surprise revenge attack on the deceased and summoned the group including the applicants to assist him. When the group met, metal pipes were distributed for use in the attack.  Two of them were assigned to locate the group which included the deceased. They then set about carrying out the attack which ended up with the deceased being beaten to death.

4.In respect of D1, the evidence also showed that he was present at the distribution of metal pipes; although he himself was unarmed, he accompanied the armed group and rushed at the deceased and his group; and although D1 did not strike any blow on the deceased, he stood by and watched even though he was under no compulsion to remain. The prosecution’s case was that he participated in the joint enterprise with knowledge that serious injuries would be inflicted. It was also alleged that although he did not himself attack the deceased, by his presence he intentionally encouraged the others. D1’s defence was that he had no intention to and did not encourage the others.

5.As to D4, he carried out a reconnaissance to locate the rival group, but stayed away from the scene until the attack was over. His defence was that he had withdrawn before the attack but this defence was apparently rejected by the jury.

6.The case against D5 was that he took possession of a metal pipe and went with the group to carry out the attack; he brandished the metal pipe as he chased after members of the rival group. The prosecution case was that he was a core member of the attacking group. His defence was that, being the youngest in the group, he was never part of the joint enterprise; he went with members of his group and just pretended to chase after the rival group because he feared that he might himself be beaten if he did not; but he had no intention to hit and did not hit any person. 

D1’s application against conviction

7.In seeking leave to appeal on the substantial and grave injustice ground, Mr John Hemmings for D1 raises two main arguments. First, he submits that the trial judge had failed to properly direct the jury on the law of participation in a joint enterprise by encouragement; and in this connection, he also argues that for such an offence, it is necessary to prove common intent to cause serious harm to the deceased. Secondly, it is submitted that there was no sufficient evidence that D1 had the intention to participate in the attack or to wilfully encourage the others to do so and that the trial judge had failed to adequately direct the jury on the evidence against D1.

8.The same arguments were rejected by the Court of Appeal. Having considered the summing up as a whole, the Court of Appeal took the view that the jury had received appropriate and correct directions in respect of the ingredient of intention in participation in a joint enterprise to murder and on the approach to the evidence relevant to this issue (para.50).

9.We respectfully agree with this conclusion.

10.The judge had repeatedly reminded the jury that mere presence was not sufficient and that they had to consider what the group had done in pursuance of the joint enterprise and the role played by each defendant as a participant in the joint enterprise. See p.13N of the summing up; also p.14C, 86G, 88K and 89F. We do not think the jury could have been mistaken as to what was required to be proved in order to convict these defendants on the basis of joint enterprise.

11.The judge had also clearly summed up the evidence on the respective parts played by D1 and the other defendants in the incident (see e.g. pp.88Q to 89F). In respect of D1, this was summarized by the Court of Appeal in paragraph 48 of its judgment which is not challenged by counsel. We are satisfied that there was sufficient evidence on which the jury could be sure of D1’s participation in the joint enterprise; and that in convicting D1, the jury must have been sure that with full knowledge of what the group had planned to do, D1 intended to take part and did take part in the joint enterprise.

12.There is no substance in counsel’s arguments. The application for leave to appeal against conviction must fail.

D5’s application against conviction

13.D5’s main ground of appeal is that the trial judge had failed to direct the jury to ignore the wholly unreliable identification of him by a co-accused by means of some photographs derived from footage from a nearby CCTV. The Court of Appeal accepted that the trial judge ought to have directed the jury to ignore this identification evidence but held that this non-direction was not material. Mr John Haynes for D5, however, argues that the Court of Appeal was wrong and that the non-direction was indeed a material irregularity in that the unreliable identification tended to show that D5 was close to (and therefore closely associated with) Billy shortly before, during and after the attack.  As a result, this adversely affected D5’s credibility in putting forth his defence (as outlined in paragraph 6 above).

14.We agree with the Court of Appeal that the judge’s failure to direct the jury on the unreliable identification was clearly not material in the circumstances of this case. On the evidence which included D5’s own evidence, there was no dispute that he was at the scene of the murder and that he had rushed at the deceased and his group, wielding a metal pipe in his hand and chasing after members of the rival group. Identification evidence was thus unnecessary. It was also immaterial whether or not D5 was close to Billy during (or shortly before or after) the attack. The main issue for the jury was whether he intended to join in the attack or merely pretended to do so. The evidence clearly showed that D5 was following Billy and moving together with the attacking group and in their company during the incident. In any case, it could hardly be disputed that he was closely associated with the attacking group. We fail to see how it can be argued that D5 could be prejudiced by the non-direction.   

Applications for leave re sentence

15.In respect of the sentence appeals, counsel’s first complaint on behalf of both defendants is of a general nature. It is argued that the regular imposition of long sentences on juvenile murderers causes grave and substantial injustice; and that since the court is relieved of the obligation to impose a mandatory life sentence in the case of juvenile murderers, it should also be free to pass individualized sentences taking into consideration the particular defendant’s immaturity and the part he played in the offence. Counsel refers to the practice in the UK and submits that by way of comparison, the sentences imposed in Hong Kong are much longer. It is also submitted that there is a need for the highest court to review the previous decisions of the Court of Appeal regarding these sentences. The second complaint is that in view of the unusual features in this case and the relatively minor parts played by these two defendants, the individual sentences on D4 and D5 are manifestly too harsh.

16.We do not think these contentions are reasonably arguable.

17.The practice in the UK cannot assist counsel. The UK practice is based on a statutory scheme which is not in place in Hong Kong. As the Court of Appeal remarked, policy considerations differ in different jurisdictions.

18.There can be no doubt that murder, especially a murder committed as a result of a gang fight, is one of the most serious offences. There are good reasons for imposing heavy sentences in Hong Kong for this type of offence even on juvenile offenders. Apart from counsel’s argument that they are generally too harsh as compared with those passed in some other jurisdictions, there is no material or special reason before us to suggest that the sentences hitherto imposed on juvenile murderers by the lower courts call for a review by the Court of Final Appeal.

19.With regard to the sentences in question, they were imposed by the trial judge after consideration of all the circumstances of this case, including the individual circumstances of each defendant and carefully reviewed by the Court of Appeal, taking into account relevant factors such as the young age of these applicants, the extent of participation of each of them, and their remorse and co-operation with the authorities. In the absence of any departure from the applicable sentencing principles, we are not satisfied that we should interfere with the exercise of the lower courts’ discretion. As the Appeal Committee said in HKSAR v Tam Wa Lun, FAMC 56 of 2010, it is only in extremely rare and utterly exceptional circumstances that leave would be granted to appeal against a sentence which has been seriously considered by the trial judge and the intermediate appeal court. This is not such a case.

20.For these reasons, all the applications for leave to appeal are refused.

Mr John Hemmings (instructed by Messrs Tang, Wong & Cheung and assigned by the Legal Aid Department) for the applicant in FAMC 19 of 2011

Mr John Haynes (instructed by Messrs Betty Chan & Co and assigned by the Legal Aid Department) for the applicants in FAMC 20 of 2011

Mr Wesley W C Wong and Ms Hermina Ng (of the Department of Justice) for the respondent