Case Detail

HKSAR v. LAU CHEONG AND ANOTHER

Related cases with same parties

CAAR11/1997HKSAR v. YIP CHI TUNG
CAAR1/1998HKSAR v. LING VERONICA
CAAR12/1996HKSAR v. WONG KWONG YICK
CAAR6/1998HKSAR v. LAU SHIU KONG AND ANOTHER
CAAR6/2012HKSAR v. LEUNG KWOK CHI
CAAR9/2001HKSAR v. WONG TO LEUNG
CACC100/1997HKSAR v. YU HON CHUN
CACC100/1999HKSAR v. LAM CHI KIN
CACC100/2000HKSAR v. SHING KUEN KIN
CACC100/2001HKSAR v. OU YANG MING CHYUAN
CACC100/2002HKSAR v. CHAN LAI SING AND ANOTHER
CACC100/2003HKSAR v. CHENG CHONG SHING
CACC100/2022HKSAR v. LIMBU PRASHANT
CACC101/1997HKSAR v. YIU KENNETH LIK KIN
CACC101/2001HKSAR v. LEUNG KWAI PING
CACC101/2021HKSAR v. WONG CHI FUNG AND ANOTHER
CACC10/1997HKSAR v. MAN KAM SHING
CACC10/1998HKSAR v. CHAN CHUN TAK
CACC10/2001HKSAR v. TAM KWAI KEUNG AND ANOTHER
CACC10/2002HKSAR v. WONG WAN SHAN

Files (3)

6256-EN-2001-07-18

HKSAR v. CHAN CHI SANG

HTML content

CACC000646B/1998

CACC 646/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 646 OF 1998

(ON APPEAL FROM HCCC 54 OF 1998)

______________

BETWEEN
	HKSAR	Respondent

	AND

	D1 LAU CHEONG alias LIU HUNG-YUK	Applicants
	D2 LAU WONG

______________

Coram: Hon Stuart-Moore Ag CJHC, Mayo VP and Stock JA

Date of Hearing: 18 July 2001

Date of Judgment: 18 July 2001

_______________

J U D G M E N T

_______________

Stuart-Moore Ag CJHC (giving the judgment of the Court):

1. This is an application for certificates under section 32 of the Court of Final Appeal Ordinance, Cap. 484, that points of law of great and general importance are involved in the decision of this court which was handed down on 4 July 2001.

2. The 1st Applicant sought a certificate originally upon six points. However, following discussion with counsel, it is accepted that two of those are really part and parcel of the same point. We propose to grant a certificate on what will now become three separate points. They are as follows:

(1) Is the common law rule, that a person can be convicted of the crime of murder on proof only that he had intended to cause the deceased grievous bodily harm, in contravention of Articles 25, 28, 39 and 87 of The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, (Basic Law), and Articles 5(1), 5(4) and 11(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383, or before a person can be convicted of the crime of murder must the prosecution prove nothing less than the accused intended to kill or at the very least have contemplated that death would result from his acts?
(2) Is section 2 of the Offences Against the Person Ordinance, Cap. 212, in so far as it provides for the mandatory sentence of life imprisonment on conviction for the crime of murder, in contravention of Article 25 of the Basic Law, and Articles 5(1), 5(4) and 6(3) of the Hong Kong Bill of Rights?
(3) Is the provision in section 83G of the Criminal Procedure Ordinance, Cap. 221, which provides that a person convicted of the crime of murder does not have the right of appeal against his sentence, in contravention of Article 25 of the Basic Law and Articles 5(1), 5(4), 6(3) and 11(4) of the Hong Kong Bill of Rights?

3. There were originally on the Notice of Motion in relation to the 1st Applicant two further questions, which were numbered (2) and (4) respectively, on which we decline to grant a certificate.

4. Mr Haynes, on behalf of the 2nd Applicant, put forward originally five points on which he asked this court to give a certificate. In fact, following discussion with Mr Haynes, he is content that the points which were covered by those in Mr Mullick's Notice of Motion on which we have granted a certificate should be formulated in the same way. We grant the 2nd Applicant a certificate on those same points.

5. There is, however, a further point which is raised by Mr Haynes arising out of the judgment of this court on 4 July 2001. Originally formulated, the point was:

"Whether the rule that a secondary party may be convicted of murder on the basis that he foresaw a risk of death or grievous harm is incompatible with Article 5(1) and or Article 11(1) of the Hong Kong Bill of Rights."

6. We have canvassed with Mr Haynes whether this adequately formulates the true question to be argued. As a result of discussion with counsel, the following alternative has been formulated on which we are prepared to certify:

"Whether the rule that a secondary party may be convicted of murder even if he did not himself intend to kill or cause grievous bodily harm but participated in the act which caused death realising or contemplating as a real risk that the primary party might carry out or was carrying out the act with intent to kill or cause really serious bodily harm is incompatible with Article 5(1) and or Article 11(1) of the Hong Kong Bill of Rights."

7. Mr Haynes also raised three points which arise from an earlier judgment of this court in the same proceedings. The judgment was given on 13 June 2000. On his Notice of Motion, the points raised were originally numbered (3), (4) and (5). We decline to grant a certificate on these points.

(M. Stuart-Moore)	(Simon Mayo)	(Frank Stock)
Ag Chief Judge, HC	Vice-President	Justice of Appeal

Representation:

Mr Gavin Shiu, SGC and Ms Anthea Pang, SGC, of the Department of Justice, for the Respondent.

Mr John Mullick, instructed by Legal Aid Department, for the 1st Applicant.

Mr John Haynes, instructed by Legal Aid Department, for the 2nd Applicant.

CACC 646/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 646 OF 1998

(ON APPEAL FROM HCCC 54 OF 1998)

______________

BETWEEN
	HKSAR	Respondent

	AND

	D1 LAU CHEONG alias LIU HUNG-YUK	Applicants
	D2 LAU WONG

______________

Coram: Hon Leong CJHC, Stuart-Moore VP and Yeung J

Date of Hearing: 27 June 2001

Date of Judgment: 4 July 2001

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 9 December 1998, the Applicants (D1 and D2 respectively) were convicted of murder, following a trial before V. Bokhary J and a jury. They were each sentenced to mandatory terms of imprisonment for life. They also faced a second count on the indictment which alleged robbery. D1 pleaded guilty to this count whereas D2 was convicted by the jury. They received concurrent sentences of six years and nine years' imprisonment respectively.

2. The Applicants sought leave to appeal against the convictions resulting from the jury's verdicts. On 21 March 2000, this court heard submissions on all except one of the grounds of appeal and, subject to argument on that ground, on 13 June 2000 we dismissed the applications. The factual background to this case is set out in that judgment.

3. The matter now comes before us for consideration of the fifth and last ground of appeal against conviction which Mr John Mullick, on behalf of D1, was unable, for reasons we shall come to later, to advance when the matter was last before this court.

4. Mr Haynes, on behalf of D2, in his amended perfected grounds of appeal dated 14 September 1999, had not included any ground which reflected Mr Mullick's fifth ground, but he indicated that he wished to adopt it.

5. The Applicants also sought leave out of time to appeal against their sentences of life imprisonment. As the ground of appeal raised an important issue of law, we granted leave to pursue this application out of time. This was not opposed by Mr Blanchflower, SC, on behalf of the Respondent.

Conviction appeal

6. In ground 5, relating to the conviction of D1, Mr Mullick complained that the judge had erred in law when she did not withdraw the murder count from the jury at the conclusion of the prosecution's case on the ground that:

"(1) for the prosecution to prove the common law offence of murder against (D1) .... it was necessary to adduce sufficient evidence that he either intended to kill the deceased or, at least, at the material time, he possessed the subjective foreseeability that death might result from his acts;
(2) proof of anything less was insufficient to prove the common law offence of murder;
(3) to proceed against (D1) on the basis that he could, in the absence of any intent to kill, be convicted of the offence of murder by proof only that he intended to inflict, or cause, grievous bodily harm to the deceased is contrary to Articles 28 and 87 of the Basic Law of the Hong Kong Special Administrative Region and Articles 5, 10 and 11 of the Hong Kong Bill of Rights (Ordinance), Cap. 383."

7. The reason that neither Mr Mullick nor Mr Haynes, after his adoption of the points in ground 5, could expand upon this ground before was that Mr Mullick, as well as Mr Bruce, SC, who was then appearing on behalf of the Respondent in this matter, were also instructed in HKSAR v Coady which is now reported at [2000] 2 HKC 12. In that case, effectively, the same points of law were being raised. It was therefore convenient to adjourn the proceedings in this matter until the points at issue had been determined in Coady.

8. The judgment in Coady was handed down on 18 May 2000. On the same day, Mr Haynes submitted a written argument "to take into account (the judgment) in HKSAR v Coady, CA 119/99 and (D2's) position as a secondary party". Mr Haynes was then seeking to distinguish the decision in Coady, which dealt only with the position of an alleged primary offender in murder, from that of a secondary offender.

9. Before this matter could be re-listed, the same points which Mr Haynes was seeking to raise on behalf of D2 were taken in HKSAR v Pun Ganga Chandra and Others which is now reported at [2001] 2 HKC 192. We shall return to this later.

D1's application

10. Mr Mullick's fifth ground, which we have already set out, was answered in full in Coady (above). In that case, it was decided that the mens rea of murder, which includes an intention to cause grievous bodily harm (the "grievous bodily harm rule"), did not offend Article 5(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Bill of Rights). Article 5(1) is also reflected in Article 28 of the Basic Law which, so far as it is relevant, reads:

".... no Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment ...."

11. The court also found that the grievous bodily harm rule did not infringe Article 10 of the Bill of Rights which provides for equality before the courts and the right to a fair and public hearing. The court held that Article 10 did not relate to the substance of the criminal law but rather to its process.

12. Finally, so far as it is relevant to this aspect of these proceedings, the court in Coady found that the grievous bodily harm rule did not infringe the provision in Article 11 of the Bill of Rights which deals with the presumption of innocence.

13. Mr Mullick, on a previous occasion when this matter came before us for mention, very responsibly indicated that he considered that this court was bound by what had been said in Coady.

14. On 6 April 2001, when the judgment in Pun Ganga Chandra and Others (above) was handed down, the correctness of Mr Mullick's stance was further confirmed when this court followed Coady and stated (at p. 201):

".... we are not prepared to depart from what was decided in Coady. It follows that the 'grievous harm' rule, in its application to a person charged with murder who is alleged to be a primary offender, is neither inconsistent nor incompatible with the rights protected by the Basic Law and the Bill of Rights".

15. It follows, therefore, that Mr Mullick's fifth ground, which he formally maintained in order to preserve a possible appeal to the Court of Final Appeal, must fail in respect of D1.

D2's application

16. Mr Haynes, by attempting to portray D2 as a "secondary party" to the murder in the present case has, as we have said, sought to distinguish D2's position from Coady which was only concerned with the law relating to a primary offender in murder.

17. However, as Mr Blanchflower has rightly pointed out, the case against D2 was that he acted as a principal with D1 in the murder and robbery of the victim in counts 1 and 2. The case was summed up on the basis that D2 assisted D1 in killing the victim although it may have been D1 who actually tied the rope around the victim's neck which directly caused his death.

18. D2 did not give evidence. He relied on D1's testimony in court and on D1's statement to the police to the effect that D2 had not been party to the offences. D1 had, in particular, testified that D2 had "fainted" after the robbery had been committed and before the victim was tied up.

19. The jury plainly did not accept D2's defence. The appeal proceeded on the basis that D1 and D2 were joint offenders engaged on a common purpose to rob and murder. In the judgment given on 13 June 2000, we said at one point (p. 13 J-L):

"Whether or not death or really serious injury was intended by D2, if and when he rendered assistance or encouragement to D1, was entirely a matter for the jury."

Later, we said that the judge's directions provided clear guidance to the jury as to the matters which the prosecution had to prove to establish D2's joint participation in the killing, if he had done anything at all. We went on to say (at p. 16F-I):

"The jury was entitled to reject, as they plainly did, D1's evidence that D2 had not played any part in tying up the victim after the robbery. Once the jury accepted that D2 had participated in tying the victim, physically or by encouragement, the sole issue to be determined was D2's intent at the time of doing so."

20. We do not accept Mr Haynes' contention that there is any basis upon which D2 should now be looked upon as a secondary offender who foresaw a risk that, at the very least, D1 might cause really serious bodily harm to the victim. In our view, what was said in Coady is binding upon D2.

21. However, even if we had come to a different conclusion in regard to D2, he would have been no better off because of what was said in Pun Ganga Chandra and Others (above). The law, so far as it relates to secondary offenders, was set out in the judgment at p. 202:

"A secondary offender can be liable for a crime committed by the primary offender even though the joint enterprise did not relate to such a crime, provided that the secondary offender realised that there was a real risk that, in carrying out the joint enterprise to commit the crime to which the joint enterprise related, the primary offender might commit that other crime."

When this court considered the alleged violation of Article 5(1) of the Bill of Rights which, amongst other things, provides that "no one shall be subjected to arbitrary arrest or detention", it was held (at p. 207) that the secondary offender rule did not infringe this Article.

22. In Pun Ganga Chandra and Others, it was not contended that the secondary offender rule violated Article 11 of the Bill of Rights (the presumption of innocence). However, it is plain that the liability of secondary offenders is not inconsistent with Article 11(1). In Pun Ganga Chandra and Others, the court (at p. 202-203) set out the three matters which had to be proved before a secondary offender could be found guilty of murder committed by the principal (or primary) offender:

"(i) The primary offender must himself have been guilty of murder. He must, therefore, have intended either to kill the deceased or to cause him really serious bodily injury.
(ii) Actual foresight on the part of the secondary offender is required. It is not enough for the prosecution to prove that the secondary offender ought to have realised what the primary offender might do. The prosecution has to prove that the secondary offender actually realised what the primary offender might do, and continued to participate in the joint enterprise with that foresight.
(iii) What the primary offender might do has to have been foreseen by the secondary offender as a real possibility. Thus, the secondary offender has to have realised that there was a real risk that the primary offender might attack the deceased with the intention of either killing him or causing him really serious bodily injury."

23. Mr Haynes, who adopted his written submission as Mr Mullick had also done, submitted that although what was said in Pun Ganga Chandra and Others represented what has been the law applicable to secondary offenders for some time, the law should require proof of an actual intention to kill or to cause grievous bodily harm. He contended that because it does not, this somehow amounted to a violation of the presumption of innocence.

24. In our opinion, there was no basis upon which to find a breach of the right guaranteed by Article 11(1) of the Bill of Rights. D2's ground of appeal in this regard therefore fails.

Conclusion - Conviction

25. The appeals of D1 and D2, based upon the matter of law raised in Mr Mullick's fifth ground of appeal to which the present hearing was confined, are dismissed.

Sentence application

26. Mr Mullick's perfected grounds of appeal against sentence in November 2000 raised several matters of law which have, with the exception of ground 1(ii), already been answered by the judgment given in Pun Ganga Chandra and Others [2001] 2 HKC 192.

27. Mr Haynes, in his perfected grounds of appeal dated 5 December 2000, adopted Mr Mullick's grounds although he went on to raise other grounds on sentence which were applicable to a secondary offender in the crime of murder. This further aspect to his grounds has also been resolved in Pun Ganga Chandra and Others. In that case it was held that the mandatory sentence of life imprisonment for those convicted of murder, whether as primary or secondary offenders, neither offended against Article 5(1) of the Bill of Rights nor Articles 25 or 28 of the Basic Law.

28. Accordingly, we need say no more about the grounds of appeal where the arguments which were to have been advanced in the present case do no more than rehearse what was said in Pun Ganga Chandra and Others. We are bound, as counsel accepted, by what was stated in that case. We should perhaps add, however, that section 6(3) of the Bill of Rights, which was briefly touched upon in counsels' submissions under ground 1(ii), was not addressed in Pun Ganga Chandra and Others. We need only say that it is a provision which gives a direction as to the administration of the penitentiary system and, as such, in our opinion has no relevance to the issue presently before us.

29. Under ground 1(ii) Mr Mullick submitted that section 83G of the Criminal Procedure Ordinance, Cap. 221, was inconsistent with Articles 5(1)(, 5(4), 6(3), 10 and 11(4) of the Bill of Rights. Section 83G provides:

"A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings."

30. The precursor to section 83G is section 9 of the Criminal Appeal Act 1968 in England which is in identical terms. Section 9 was enacted three years after Parliament enacted the Murder (Abolition of Death Penalty) Act 1965. Section 1(1) of that Act made provision for a mandatory life sentence following conviction for murder.

31. Mr Blanchflower, to whom we are indebted for his careful analysis of the position in Hong Kong, pointed out that section 83G was enacted as part of the Criminal Procedure (Amendment) (No. 2) Ordinance, 1972. The 1972 Ordinance, following the 1968 Act in England, amended large parts of the Criminal Procedure Ordinance, including parts relating to appeals. The explanatory memorandum to the Criminal Procedure (Amendment) (No. 2) Bill 1972 states (amongst other things):

"The main object of this Bill is to bring the law of Hong Kong into line with that of the United Kingdom in relation to -
...........
(b) appeals to the Full Court in criminal cases."

32. In Pun Ganga Chandra and Others (above) this Court addressed the appellants' sentence appeals which principally contended that the mandatory sentences of life imprisonment were arbitrary and therefore inconsistent with their rights under Article 28 of the Basic Law and Article 5(1) of the Bill of Rights. The Court (at p. 196) granted leave to appeal although the application of section 83G of the Criminal Procedure Ordinance (set out above), and the possible jurisdictional problem to which it gives rise, was not raised. It is now submitted that section 83G is inconsistent with Article 11(4) of the Bill of Rights which states that:

"Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."

33. Section 83G was enacted in 1972. The Bill of Rights Ordinance came into operation on 8 June 1991. The Legislature could not, we believe, have intended Article 11(4), in view of its plain and unambiguous wording, to be subject to section 83G. It follows, therefore, that section 83G cannot limit the application of Article 11(4) of the Bill of Rights.

34. In practical terms, the English Court of Appeal, in R v Lichniak; R v Pyrah, 2 May 2001 (unreported) considered the same point which is being made in the matter presently before us. In that case, the appellants sought judicial review of decisions to impose mandatory sentences of life imprisonment following their separate convictions for murder. They alleged that section 1 of the Murder (Abolition of Death Penalty) Act 1965 (similar to section 2 of the Offences Against the Person Ordinance, Cap. 212) was incompatible with Article 3 (torture or inhuman or degrading treatment) and Article 5 (deprivation of liberty determined by a competent court in accordance with a procedure prescribed by law). For the hearing of the application for judicial review, the Queen's Bench Division sat both as the Divisional Court and as the Court of Appeal Criminal Division.

35. Before concluding that mandatory life sentences were not in breach of Articles 3 or 5 of the European Convention on Human Rights and Fundamental Freedoms, Kennedy LJ, delivering the judgment of the Court of Appeal, first addressed the apparent jurisdictional obstacle raised by section 9(1) of the Criminal Appeal Act 1968, which (in the same terms as section 83G of the Criminal Procedure Ordinance) provides:

"A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence ...."

Kennedy LJ said at pp. 5-6:

"For present purposes we are satisfied that the most attractive route to jurisdiction is to have resort to section 3(1) of the 1998 (Human Rights) Act which requires us to read and give effect to section 9(1) of the 1968 Act in a way which is compatible with Convention rights. If a statutory provision which requires the imposition of a sentence of life imprisonment is incompatible with the Convention then, at least until Parliament has had the opportunity to consider its response to the court's declaration of incompatibility, the sentence is not for the purposes of section 9(1) of the 1968 Act fixed by law; alternatively the exclusion of sentences fixed by law is itself subject to an implied exception where the statutory provision fixing the sentence is incompatible with the Convention. Accordingly we hold that this court, sitting as a division of the Court of Appeal, has jurisdiction to entertain these matters as appeals against sentence, since they raise arguable issues as to the compatibility of section 1 of the 1965 Act with the Convention."

36. Mr Blanchflower invited the court to say that, taking a similar route to that which the English court adopted, we should find that we have jurisdiction, pursuant to Article 11(4) of the Bill of Rights, to entertain the applications before us for leave to appeal against sentence. This, we propose to do.

37. We can, however, deal with the matter shortly. In doing so, we again express our gratitude to Mr Blanchflower for his careful research into the existing procedures for the review of long-term prison sentences. In particular, the Long-Term Prison Sentences Review Ordinance, Cap. 524, came into operation in June 1997 which the relevant part of the preamble states is:

"An Ordinance to establish a board to review indeterminate and long-term prison sentences ...."

38. Under the terms of section 6, the Board of Review of not less than eight members is appointed by the Chief Executive. Two of its members must be judges or former judges of the Court of First Instance. The principal function of the Board (section 7) is to conduct reviews of long-term sentences. When exercising its functions, the Board must have primary regard to the principles listed in section 8 which include:

"(c) whether the part of the prisoner's sentence already served is sufficient, in all the circumstances (in particular given the nature of the offence for which the prisoner is being detained), to warrant consideration being given to having the prisoner released from detention early."

39. With respect to mandatory life sentences, the Board must first review the sentence after five years from the start of the sentence, and as soon as practicable after each subsequent second anniversary after that date. (section 11(2))

40. Schedule 1 to the Long-Term Sentences Review Regulations lists matters the Board may take into account although the Board may also take into account any other matters it thinks relevant. Schedule 1 includes such matters as the nature of the offence, any mitigating circumstances, the prisoner's response to counselling and rehabilitative treatment, the prisoner's age and state of health and the prisoner's rehabilitation prospects and employment prospects on release. It would appear to follow, therefore, that a prisoner's role in a murder is taken into account, as well as the way he has responded in prison.

41. Before the date of review the prisoner is provided with a copy of all the relevant material considered by the Board (section 13(2), unless the material comes within an excepted category. The Board may request information from the Commissioner of Correctional Services [section 14(1)(a)]; Commissioner of Police [section 14(1)(b)], Registrar of the High Court [section 14(1)(c)] and Director of Social Welfare [section 14(1)(d)]. The Registrar of the High Court must provide information relating to the offence and trial [section 14(1)(c)(i)] and a copy of the report made under section 67B of the Criminal Procedure Ordinance [section 14(1)(c)(ii)].

42. The prisoner is given an opportunity to make written representations to the Board with respect to matters relevant to the review. The Board has the discretion to allow the prisoner to appear before it, either personally or through his representative, to be heard and to make oral representations and adduce evidence to the Board. [section 12(5)]

43. The Board may recommend to the Chief Executive to substitute a determinate sentence for a prisoner's indeterminate sentence. [section 15(1)(a)(ii)]. If the Chief Executive acts upon the Board's recommendation he will exercise his power under Article 48(12) of the Basic Law: "To pardon persons convicted of criminal offences or commute their penalties". The Board may also make a conditional release order for a period of up to 2 years for a prisoner serving an indeterminate sentence. [section 15(1)(b)]

44. Whilst we are satisfied that a right to review of sentence exists under Article 11(4) of the Hong Kong Bill of Rights, even where the sentence is fixed by law, for all the reasons given in Pun Ganga Chandra and Others (above) which it is unnecessary to set out again, and for the additional reasons given in this judgment which demonstrate that an adequate system for the review of long-term prisoners' sentences is in existence, we are satisfied that neither the Bill of Rights nor the Basic Law have been breached by the imposition of these mandatory life sentences.

Conclusion - Sentence

45. We shall give leave to appeal to D1 and D2 against sentence but their appeals are dismissed.

(Arthur Leong)
Chief Judge, HC

(M. Stuart-Moore)
Vice-President

(W. Yeung)
Judge of the Court of First Instance

Representation:

Mr John Mullick, instructed by Legal Aid Department, for the 1st Applicant.

Mr John Hanes, instructed by Legal Aid Department, for the 2nd Applicant.

Mr M. C. Blanchflower, SC, SADPP and Ms Anthea Pang, SGC, of the Department of Justice, for the Respondent.

CACC000646/1998

CACC 646/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 646 OF 1998

(ON APPEAL FROM HCCC 54 OF 1998)

______________

BETWEEN
	HKSAR	Respondent

	AND

D1	LAU CHEONG alias LIU HUNG-YUK	Applicants
D2	LAU WONG

______________

Coram: Hon. Stuart-Moore VP, Leong JA and Yeung J

Date of Hearing: 21 March 2000

Date of Judgment: 13 June 2000

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 9 December 1998, following a trial in the Court of First Instance before V. Bokhary J and a jury, the Applicants (D1 and D2 respectively at trial) were convicted of murder. They received mandatory life sentences in respect of murder (count 1). D1 received a concurrent sentence of six years' imprisonment for robbery (count 2) to which he pleaded guilty. D2 contested this charge. The jury convicted him and he received a concurrent sentence of nine years' imprisonment. Both Applicants seek leave to appeal against the convictions resulting from the verdicts of the jury.

Prosecution's Case

2. The case presented by the prosecution against the Applicants amounted to an allegation that they had acted together in the murder and robbery of Kei Wai-heung (the victim) at the Tai Po Industrial Estate on 26 July 1997. The prosecution alleged that if the Applicants were not guilty of murder they were, by way of alternative, guilty of manslaughter.

3. In Dl's case, the issue was a narrow one. Having regard to his plea in relation to the robbery, the jury only had to address his intention at the time when, by his own admission, he did an unlawful and dangerous act which caused the victim to die by strangulation. D1 had tied up the victim after robbing him in a particular manner to which we shall later need to return in some detail.

4. The robbery involved a trivial amount of property, namely a watch, a purse and a Hongkong Bank ETC card. It was the 'recent possession' of the ETC card which provided an important first link between D2 and these crimes. This was found after it had fallen out of his underpants at the Queen Elizabeth Hospital on the day after the robbery. Later, blood matching the DNA sample taken from the victim's body was found on the ETC card. Additionally, DNA tests to D2's clothing revealed blood, matching the victim's, on his jeans, shoes, watch and belt and fibre-contact evidence established a link between the trousers of the victim and the T-shirt and jeans worn by D2.

5. D2 had attended hospital for treatment to numerous injuries to his hands. In particular, medical evidence was given that the cuts to his left hand were typical defensive wounds inflicted while the hand had been used to ward off a knife attack.

6. In short, therefore, it was alleged that the evidence revealed a violent encounter between the victim, who must have tried to fight back, and the Applicants, who eventually gained the upper hand, before robbing and tying him up.

Defence Case

7. Dl's plea of guilty to manslaughter was not accepted by the prosecution. D1 testified that he had robbed the victim. However, he encountered resistance because the victim, after he had attempted to rob him by threatening him with two knives, had managed to get hold of one of the knives which he used to defend himself. D1, whilst defending himself from the victim's (lawful) response, then asked D2 to give assistance. Between the two of them, they got the victim to the ground where he was pinned down and punched with fists. D1 testified that when the property was taken by him, D2 "fainted" leaving him alone to tie up the victim. D1 also received injuries to his hands in the struggle. He testified that he had tied the victim because he was afraid he might get away and take revenge.

8. D2 did not testify. His case was put forward in reliance upon the testimony given by D1. One aspect of D1's evidence had been that he, thinking that the ETC card belonged to D2, had placed this inside D2's underpants.

Summing up

9. In a clear and concise summary of the relevant legal principles and the facts, the judge delivered a summing up which heavily leaned towards a manslaughter verdict for D1. In D2's case, the judge firstly addressed the various pieces of circumstantial evidence capable of linking him to the crimes. She then, and with the same emphasis she had placed on manslaughter in Dl's case, directed the jury as to murder and the alternative of manslaughter in D2's case.

Objections to the Court Interpreter

10. Before hearing the grounds of appeal during the proceedings on 21 March 2000, D1 raised objection to the interpreter. He made a similar complaint during the trial (at page 185 of the appeal bundle). This came to nothing in the present proceedings when it was established that not only the Hunan interpreter especially retained for this hearing, but also the Putonghua interpreter who usually works in this court, could be understood by him. In fact, D1 preferred to be given a translation in Putonghua which is what duly happened.

11. However, D2 then also complained that he could not understand proceedings. This has to be set against a background of an application made by Mr Haynes, on D2's behalf, to amend his perfected grounds by adding a further ground of appeal in the following terms:

"Proposed ground 6
6 That the arrangements for interpretation by a Hunan interpreter with a Changsha accent (instead of a Shaoyang dialect speaker) and a Putonghua interpreter rendered the proceedings incomprehensible to the second applicant. In particular the evidence of D1 was incomprehensible and confusing to the court and jury. This is evident from the transcript. The Defence of D2 relied heavily on Dl's evidence. (see p171D, p185-p195, p211-p233). The result was:

(a) The second applicant dared not speak out at the trial because of his social and historical background.
(b) Because of the fact that no Shaoyang dialect speaker was available, he could not exercise a 'free' election when he accepted a Putonghua interpreter. The 2nd applicant has little understanding of Putonghua. His understanding of the proceedings was seriously flawed.
(c) Having observed the problems surrounding the interpretation of Dl's evidence, D2's election as to whether to give evidence himself was not free in any proper sense of the word. These factors constituted a material irregularity in the trial of the second applicant."

12. None of these matters had been raised at trial by D2 and furthermore, no sooner had the Hunan interpreter at court said that he spoke in Shaoyang dialect, Mr Haynes informed the Court that D1 had sent a letter which had apparently accidentally, and certainly confusingly, found its way into his instructions. Mr Haynes then asked for the first paragraph in his proposed additional ground of appeal, which had been mistakenly based upon something written by D1, to be amended by crossing out 'Shaoyang' and replacing this with 'Huaihua' as the dialect D2 could understand. With these difficulties in mind, we asked D2 a number of questions in court through a Putonghua interpreter which he appeared to be able to answer until the time came when he began to indicate, through body language only, that he could not understand what he was being asked.

13. The Court then adjourned for about 25 minutes to allow the Hunan interpreter to speak to D2. When the Court resumed, the interpreter gave sworn evidence that the Huaihua and Shaoyang dialects are different but that there should be some comprehension of both dialects by a speaker of one of them. He said that D2 had not spoken a single word to him during the whole course of the adjournment but had indicated, again by body language, that he could not understand what was being said to him.

14. Bearing in mind also that the evidence of D1 in the trial, relied on by D2, was that the two of them had met and spoken together before the robbery and killing, it was apparent to us that a charade was being enacted in court. As Dl's preference of language was for Putonghua, we proceeded with the interpreter in that language. We refused to give leave to appeal on the further ground proposed by Mr Haynes.

D1's grounds of appeal

15. Mr Mullick, who did not appear in the court below but appears now on behalf of D1, has advanced five grounds of appeal in relation to count 1. From the outset of the hearing, counsel were aware that we would not entertain any argument on "ground 5" (adopted also by Mr Haynes for D2) which is concerned with whether the mens rea required to prove murder infringes the Bill of Rights, until a decision has been concluded on the same point in HKSAR v Coady Maria Remedios B. CACC 119/1999, where Mr Mullick and Mr Bruce, SC, are also instructed. None of the other grounds raised in this application have a bearing upon the fifth ground and we propose, therefore, to deal with all the grounds, save Mr Mullick's "ground 5" in this judgment.

16. Grounds 1 to 3 all assert, in a number of different ways, that there was insufficient evidence to prove murder against D1. Mr Mullick accepted that the central issue in the trial was concerned with whether or not the prosecution could establish the necessary intent at the time D1 tied up the victim.

17. In considering these grounds, it has plainly been essential to look at the manner in which the victim was tied and the medical evidence given about the cause of death. Evidence about this was given by Dr Shum Shui-fung, the forensic pathologist who attended the scene of the crime on 27 July 1997 and later conducted the post mortem. At the scene he described the victim's body as being face down and naked from the waist up, with ligatures tied around the neck, the wrists and legs. The body was clad in blood-stained trousers. Photographs taken at the scene graphically demonstrate the manner in which the body had been tied.

18. At the post mortem, Dr Shum examined the rope ligatures more closely. The legs had been tightly tied with a light-coloured piece of rope wrapped several times round the legs and securely fastened. A long piece of blue rope was secured "tightly with a knot" at the "right back of the neck". This passed downwards over the back of the body "to loop around the ligature which tied the legs together, and then passed upwards over the back of the body to tie the wrists together by multiple turns and knots". There was heavy bloodstaining over the face and upper front of the chest. The pathologist catalogued 24 areas of injury, including a stab wound measuring 5.5 cm in length which was found on the "right middle front of the neck". In effect, therefore, the victim had been trussed up without hope of escape unless given assistance. His injuries were consistent with the victim having been assaulted.

19. The cause of death was "pressure on the neck". Dr Shum continued by saying:

"The circumstantial and autopsy findings indicated that the death of the deceased was due to pressure on the neck in the form of ligature strangulation, although other form of strangulation or pressure on the neck such as manual strangulation, the use of hand, could not be excluded. In addition, the nature and the extent of the fractures of the thyroid and the cricoid cartilage, that is the voice box, also suggests the application of heavy blunt forces to the front of the neck, such as blow or kicks or other form of compression to the front of the neck, which could also have contributed to the death of the deceased."

20. Dr Shum later continued by saying:

"... although the constriction of the neck by the ligature could have caused rapid death, there exists a possibility that the deceased might not have died right away if he was still conscious at the time of the application of the ligature around the neck "

21. Dr Shum considered that it was a possibility that "even with the application of the ligature" the victim may not have died immediately. However, he went on to say later:

".... even if the deceased was not killed, or did not die immediately after the applications of the ligature around the neck, that would have been inevitable .... The stab wound on the neck was not deeply penetrating, and had not injured the major blood vessels. Although it could have resulted in some bleeding, which could have some contribution to the death of the deceased, it was unlikely to be the -- to be fatal on its own account. It was compatible with having been inflicted by a sharp pointing weapon, like with a narrow blade, such as a narrow-bladed knife."

22. It was Dr Shum's opinion that the victim had not caused his own death by struggling to free himself from his bonds. He stated that there was a substantial chance that the victim "may have died immediately or very shortly after the application of the ligature".

23. Looking at the factors described by Dr Shum, Mr Mullick described the tying up of the victim as far more consistent with someone who was trying to prevent the victim from escaping than a deliberate killing. As he put it in his skeleton argument, "the only complaint which can be levied against the judge's otherwise impeccable address to the jury is that she did not direct them to acquit the (Applicants) of murder", although she came "as close as it could be to give such a direction, without actually doing so".

24. There can be no question that the judge, in summing up to the jury, allowed her feelings to be known to them, namely that in her view manslaughter was a more appropriate verdict than murder. However, the law does not permit a judge, where there is a case to answer, to usurp the functions of the jury by directing an acquittal during the summing up. The judge was entitled, on the other hand, to put forward, forcefully if need be, everything that could be said in favour of a manslaughter verdict. In the present case, given that the prosecution was as much entitled as the defence to a fair trial, the judge undeniably urged the jury to convict of manslaughter. This was done in a way which was just within the limits of what she was permitted to do. That being said, the judge told the jury that it was for them to decide the verdict and it is plain that they acted upon this direction.

25. At the heart of Mr Mullick's submissions on these grounds lay the proposition that the judge should not have left "intent" as an issue for the jury to consider because there was no firm basis to support an inference that the tying up of the victim was accompanied by an intent either to kill or to cause really serious bodily harm.

26. We disagree with this submission. This was pre-eminently a case in which this issue was for a jury to decide. Clearly trial counsel, who included Mr Haynes who appears for D2, also thought the issue was a matter for the jury because neither Mr Haynes nor his co-defending counsel made any submission of no case to answer. The trial judge would herself have been bound to raise this if she had considered that such a submission was justified.

27. The directions given to the jury as to how they should approach inferences and as to the ingredients of murder and manslaughter were impeccable. Indeed, no criticism is made of them. Bearing in mind the obvious force used to tie the rope around the victim's neck, there was the plainest evidence for the jury's consideration that D1, at the very least, intended to cause the victim grievous bodily harm.

28. We find no substance in these grounds.

29. Turning next to ground 4, Mr Mullick submitted, by way of an alternative approach to grounds 1 to 3, that the judge "erred in law and practice in not directing the jury at the conclusion of the prosecution's case to return a verdict of not guilty on count 1".

30. As we have already said, the prosecution had plainly adduced sufficient evidence for a case to be answered and we do not, in such circumstances, consider that there was any scope for the judge to have ruled no case to answer. Furthermore, no question had arisen as to the unreliability of witnesses which might have called for consideration under the second limb in R v Galbraith (1981) 73 Cr. App. R. 124 which requires a judge to stop the case if the prosecution's evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it.

31. Mr. Bruce, SC, on behalf of the Respondent, has reminded us in his most helpful written submissions, about a passage in HKSAR v Poon Lai-lin and another, CACC 720/1996 (unreported), where it had been argued by counsel that the trial judge should have exercised her discretion to withdraw the case from the jury and direct a verdict of not guilty. Mortimer VP, having cited the two well known limbs of Galbraith, went on to say:

"Finally, Mr Saw cites an Australian decision R v Doney (1990) 171 CLR 207, 214 where the same principle is enunciated:

'It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that taken at its highest, it will not sustain a verdict of guilty.'

It is of considerable importance to recognise that we have the protection in our society of trial by jury. Judges must not usurp their function. Therefore, even if the judge considers that he would not convict on a witness's evidence where the witness has given evidence upon which it is open to a jury to convict when properly directed, he has no discretion to withdraw the case from them. In this case, it is clear that the judge had no discretion on the evidence which was before her to exercise the discretion which is contended for."

32. We have concluded in the present case that there is no substance to this ground. There was clearly evidence for the jury to consider and it would have been to have usurped their function for the judge to have withdrawn the case from them by directing an acquittal on the charge of murder.

D2's grounds of appeal

33. It is convenient to turn next to the grounds raised by Mr Haynes on behalf of D2 who, in his first ground of appeal, submitted that it was the judge's duty to withdraw the charge of murder against D2 from the jury's consideration. Mr Haynes, who as we have said already made no submission of no case to answer in the trial, was perhaps, in advancing this submission now, influenced by the judge's extremely weighted comments in favour of manslaughter.

34. He submitted that it might even be that in convicting of murder, despite directions that manslaughter might be a more appropriate verdict, the jury were prejudiced against both Applicants by virtue of their status as illegal immigrants in Hong Kong, by the horrific nature of the photographs and by Dl's confession to having robbed an older man. We need only say, in respect of all these matters, that the jury were given sound and sensible directions.

35. There was plainly a case for D2 to answer. There was strong evidence that he had been in a violent struggle with the victim. Immediately following the struggle, the victim had been dragged to bushes and tied up in the style which has been described already. D2 had in his possession part of the proceeds of the robbery. Whether or not death or really serious injury was intended by D2, if and when he rendered assistance or encouragement to D1, was entirely a matter for the jury. The judge's directions in this respect were in these terms:

"Turning to the murder count, Count 1: if the victim of a robbery carried out pursuant to a joint enterprise is tied up, then both robbers would be legally responsible for the tying up if it was likewise done pursuant to a joint enterprise. So if the two men shared a common intention that the victim should be tied up and was each prepared to assist the other in tying him up if and as the need arises, then both would be responsible for the tying up even if only one man performed the physical act of tying the victim up. The other man would be legally responsible for the act of tying up if he supported the other man by standing by ready to give assistance if required.

So much for the physical part of the killing. I have already directed you as to the mental element of murder on the one hand and manslaughter on the other. Shortly stated, for murder it is an intention to kill or cause really serious injury. For manslaughter, there is no need for such an intention. What is necessary is that the unlawful act which resulted in death is one, such as an assault, which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some physical harm resulting therefrom, albeit not serious harm."

36. This ground fails.

37. In grounds 2, 3 and 5, Mr Haynes alleged that various parts of the summing up created unfairness to D2's case. He submitted in ground 2 that D2's defence was too briefly summarised to do justice to it and, in grounds 3 and 5, he suggested there were areas of the defence case where the judge gave directions which were not fair to D2.

38. As to ground 2, no evidence was given by D2 himself and the jury was reminded by the judge that he relied on the evidence given by D1 to the effect that he (D2) was not a party to the robbery or the tying up of the victim. The judge, perfectly properly, also reminded the jury that the prosecution's case was that Dl's evidence, where it sought to exonerate D2, was untrue. Giving one example of this, concerning the possession by D2 of the victim's ETC card, the judge said:

".... what do you think of the 1st accused's evidence that he found it on the ground and placed it inside the 2nd accused's underpants, thinking that it belonged to the 2nd accused? Why would he do that instead of putting it into his own jean's pocket or retain it to give it to him later? You are entitled, if you see fit, to take the view urged by the prosecution that this was plainly a false account made up to meet the prosecution's evidence that the deceased's ETC card fell out when the 2nd accused was removing his underpants.

The prosecution's point here is to the following effect. That a robber would hide a stolen ETC card in his underpants is, you are entitled to think, one thing. That a companion, believing that the ETC card belonged to the other man, would place it inside that other man's underpants rather than his pocket, is, you are entitled to think, another matter altogether."

39. This direction is the subject of complaint in ground 5 where Mr Haynes suggested that if Dl's account was rejected by the jury, there were so many possibilities as to how the card could have found its way into D2's underpants. He submitted that the judge should have directed the jury to ignore or disregard this evidence on the charge of murder. However, this submission overlooks the evidence of the victim's blood being found upon it which was a piece of circumstantial evidence the jury was entitled to take into account along with others.

40. In his third ground of appeal, Mr Haynes submitted that the directions given to the jury in the summing up at page 19K-T in the appeal bundle were unfair to D2. The directions were as follows:

"If the 2nd accused was party to the robbery, he would have just as much interest as the 1st accused in the deceased being tied up afterwards to prevent him from reporting the matter promptly. If the tying up was in the course of a joint enterprise, then both men would be legally responsible for it. If such a thing is done in a joint enterprise, it does not matter which man did the tying up. The other man would be just as responsible in law if he gave encouragement (whether expressed or tacit) and support (in the form of preparedness to assist if necessary) for that to be done, and it was done for his purposes just as much as for the purposes of the other man.

If the 2nd accused was party to the tying up of the deceased as a joint enterprise, then he would be just as guilty of its consequences as the 1st accused."

41. After this passage, the judge went on to remind the jury of her earlier directions as to murder and manslaughter and then forcefully suggested that they "may well think" that there was a doubt over the intent required for murder in D2's case.

42. Bearing in mind that D2's defence, relating to the time when the victim was being tied up, was based upon the evidence given by D1 to the effect that D2 had fainted and was lying on the ground, we can see no criticism of the judge's directions. The carefully chosen words, in the passage just cited, show no less than four sentences out of five starting with the word "if" and the remaining sentence containing the word "if" in two places. The judge in those directions was providing the jury with a clear demonstration of what needed to be proved, if he did anything at all, to establish D2's joint participation in the killing. The jury was entitled to reject, as they plainly did, D1's evidence that D2 had not played any part in tying up the victim after the robbery. Once the jury accepted that D2 had participated in tying the victim, physically or by encouragement, the sole issue to be determined was D2's intent at the time of doing so.

43. These grounds must also fail.

44. In his fourth ground of appeal, Mr Haynes alleged that D2 was subjected to inhuman treatment following a refusal by D2 to give a blood sample. In the event, police were able to use blood taken from one of D2's bandages which had fallen off.

45. Mr Haynes sought to invoke Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383, which provides:

"Article 3
No torture or inhuman treatment and no experimentation without consent
No one shall be subjected to torture or to cruel, inhuman or degrading treatment and punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."

46. As Mr Bruce pointed out and as Mr Haynes eventually agreed, there was no factual basis for this claim as there was no evidence to contradict the officer's evidence that the bandage had fallen off. In any event, even if an officer had decided to remove the bandage as Mr Haynes seemed to be suggesting, we are disinclined to think that this would amount to any violation of the rights which are guaranteed under Article 3.

47. This ground fails.

48. It was contended by counsel for both Applicants that the verdicts were unsafe and unsatisfactory. We disagree. There was ample evidence of murder for the jury to have considered and the alternative of manslaughter was fully and fairly explained to the jury before they returned with their verdicts of guilty on the charge of murder.

49. For the reasons we have given, these applications, so far as the grounds to which we have given consideration are concerned, are dismissed.

(Having heard counsel after delivery of this judgment, the court adjourned consideration of Mr Mullick's "ground 5" until the conclusion of HKSAR and Coady Maria Remedios B., CACC 119/1999)

(M. Stuart-Moore)	(Arthur Leong)	(W. Yeung)
Vice-President	Justice of Appeal	Judge of the Court of First Instance

Representation:

Mr A.A. Bruce, SC, SADPP and Mr Vincent Wong, SGC of the Department of Justice for the Respondent.

Mr John Mullick instructed by the Legal Aid Department for D1/Applicant.

Mr John Haynes instructed by the Legal Aid Department for D2/Applicant.

Remarks:
Appeal by the 1st and 2nd Applicants to the Court of Final Appeal. Appeal dismissed. Please refer to the Appeal Judgment FACC000006/2001.