HKSAR v. Lam Siu Fung and Another

CACC 326/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 326 OF 2012

(ON APPEAL FROM HCCC NOS. 154 and 433 OF 2011)

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BETWEEN

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D E C I S I O N

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Hon Lunn JA (giving the Decision of the Court)

1.The 1^st and 2^nd applicants apply for orders certifying that points of law of great and general importance are involved in the judgment of this court handed down on 22 November 2013. With the consent of all parties, we have dealt with the application on the papers without an oral hearing.

The 1^st applicant

2.The question posed on behalf of the 1^st applicant only is:

(1)   Upon the taking of a jury’s verdict, where the judge’s clerk conflates into a single formal question whether the accused is guilty or not guilty of the alternative verdicts of murder and manslaughter, is a verdict of “Guilty” to that question an unequivocal or lawful verdict?

The 2^nd applicant

3.The questions posed on behalf of the 2^nd applicant only are:

(2)   In a joint enterprise that involves spontaneous violence (as opposed to “pre-planned” violence), must a jury be directed that a person does not need to communicate or demonstrate his withdrawal to the other members, in order for him/her to effectively withdraw from the joint enterprise?

(3)   Where the identification of an accused is disputed for the commission of an offence, in that the accused can only be one of two people (and not both), must the jury be directed that a majority must agree upon which one of the two had in fact committed the offence?

4.The issues arising from Question 1 were addressed specifically in the judgment of this court.  As noted in that judgment, the jury was provided with a pro forma in which the questions to be posed of their foreman were set out, which questions the clerk posed orally to the foreman in court.  In sequence, those questions were:

1. On the Count of Murder against the 1^st accused - LAM Siu-fung, have you reached a verdict?

2. Is your verdict one upon which you are all agreed?

3. What is your verdict?  Do you find him?

a. Guilty? or

b. Not Guilty? or

c. Not Guilty of Murder but guilty of Manslaughter by reason of provocation?

The jury gave affirmative answers to Questions 1 and 2.  In response to Question 3, the foreman replied “Guilty”.

5.In refusing the 1^st applicant leave to appeal against his conviction, this court said that it was satisfied that the verdict of the jury “was an unambiguous verdict of guilty of murder.” [1]

6.Obviously, that determination of the court was fact specific.  With respect, no point of law of great and general importance arises from the judgment.

Question 2

7.The issue of whether or not, in a joint enterprise arising in circumstances of spontaneous violence, the judge is required to direct the jury that it is not a requirement that a party who withdraws from the joint enterprise needs to communicate or demonstrate his withdrawal to other members of the joint enterprise was canvassed at trial and in the 2^nd applicant’s appeal against conviction in this court.  In the judgment of this court, it was noted that the judge had directed the jury:[2]

“ The law is this. To withdraw from a joint enterprise a defendant must do some act or make some statement which clearly and obviously demonstrates to the other members of the joint enterprise that he is no longer a member of that joint enterprise and no longer lends any support to the other members of the joint enterprise.”

8.The judge concluded those directions to the jury, by saying:

“ So to withdraw from the joint enterprise you have got to make it obvious to the others that you are no longer a member of the joint enterprise.

What if a defendant in this case had, quite plainly, made it clear and obvious that he had withdrawn from the joint enterprise but nobody had noticed what he did.  Well, that is not his fault if they do not notice what he did.  If he has done enough in your view to make it obvious to the others that he is withdrawing, then that is sufficient.”

9.Of the judge’s directions in respect of the issue of withdrawal from a joint enterprise, in the judgment this court said:[3]

“ Clearly, the last paragraph of the judge’s direction was relevant to the evidence that the violence had unfolded spontaneously, was of very short duration, during which the deceased had been surrounded by a group of young men and in short order forced to the floor, in which position his attackers jostled to deliver blows. In effect, the jury were directed that in those circumstances if, on the evidence, they were satisfied that the respective applicants had or may have done things or said words evincing an unequivocal withdraw from the joint enterprise, that was sufficient. It was not necessary for them to be satisfied that the conduct had been observed by others.”

This court concluded that those directions were “correct and entirely apposite to the circumstances of each of the applicants in this case.” [4]

10.In the result, having regard to the directions given by the judge to the jury, the issue arising from Question 2 does not arise for consideration.

Question 3

11.In our judgment, this court approved of the “reasoned analysis and the decision” of the judge in determining that it was not necessary to give a Kevin Brown direction in respect of the 2^nd applicant.[5]  The judge said:[6]

“ ..whether the 2^nd defendant used the umbrella stand or simply kicked the deceased is not an ingredient of the offence. It is a simple dispute on the evidence as to what actions the 2^nd defendant did during the assault on the deceased, the relevance of his actions going to the inference that the jury may draw as to his state of mind.

In other words, his actions are not an ingredient of the offence.  They are a means to proof of an ingredient, and that ingredient, unlike in Brown and Mitchell, is not one of a number of alternative ingredients.”

12.The judge’s ruling and the judgment of this court concerned the application of well established principles and do not concern a point of law of great and general importance.

Conclusion

13.In the result, we are satisfied that none of the three questions posed on behalf of the applicants concern points of law of great and general importance.  Accordingly, the applications for the grant of a certificate are dismissed.

Mr Simon Tam, SC, SADPP, of the Department of Justice, for the respondent

Mr Gerard McCoy, SC and Mr John Marray, instructed by S. Y. Fung, Solicitors,assigned by Director of Legal Aid, for the 1^st applicant

Mr Gerard McCoy, SC, instructed by Li, Wong, Lam & W.I. Cheung, assigned by Director of Legal Aid, for the 2^nd applicant

[1] HKSAR v Lam Siu Fung and Another (CACC 326/2012; unreported, 22 November 2013 – paragraphs 44-6).

[2] HKSAR v Lam Siu Fung and Another – paragraph 59.

[3] HKSAR v Lam Siu Fung and Another – paragraph 60.

[4] HKSAR v Lam Siu Fung and Another – paragraph 66.

[5] HKSAR v Lam Siu Fung and Another – paragraph 86.

[6] HKSAR v Lam Siu Fung and Another – paragraph 85.

Please refer to FAMC10/2014 for the relevant appeal(s) to the Court of Final Appeal.