Case Detail

CACC 33/2023

[2025] HKCA 298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 33 OF 2023

(ON APPEAL FROM HCCC NO 51 OF 2021)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Islam Javed Iqbal	Appellant

________________________

Before:

Hon Macrae VP, Zervos and M Poon JJA in Court

Date of Hearing:	19 March 2025
Date of Judgment:	19 March 2025

________________________

J U D G M E N T

________________________

Hon Macrae VP (giving the Judgment of the Court):

1. On 5 June 2024, leave was granted by the Single Judge[1] to appeal against his conviction for murder. On 18 June 2024, the Court set down the substantive appeal for hearing on 19 March 2025. Unfortunately, on 7 July 2024, the appellant took his own life whilst in prison custody. A preliminary issue before us, therefore, is whether his appeal should abate upon his death or be permitted to continue.

2. The appellant was initially represented at the appeal by Mr Richard Donald, on the assignment of the Director of Legal Aid. In his written submission dated 14 October 2024, Mr Donald suggested that despite the death of the appellant, the appeal should continue and may be taken up by his father[2]; although, notwithstanding the Court’s directions on 16 September 2024[3], no affirmation evidence has ever been filed by anyone with a view to substituting the father for the appellant in these proceedings.

3. On 26 February 2025, a Notice of Discharge (of the legal aid certificate) was issued on behalf of the Director of Legal Aid to all parties and the court, together with a letter of the same date explaining that the grant of legal aid could only be extended to persons charged with an offence, under Rule 4(1)(c) of the Legal Aid Criminal Cases Rules, Cap 221D, and not to the deceased’s family members. The letter went on to state that:

“We have requested our assigned solicitors to inform the deceased’s family members of the discharge of legal aid certificate. We leave it to the family members to decide whether to proceed with the appeal.”

4. It is to be noted that the Court was not privy to the means of contact with the appellant’s father, or any other family members. Nevertheless, in order to ensure that the family members were apprised of the situation fairly and transparently, Macrae Acting CJHC gave the following direction, on 4 March 2025:

“The content of the letter from Legal Aid Department dated 26.2.2025 is noted. As of today, the Court has not received any application from any person applying to be a party to the appeal in substitution for the appellant (deceased). The respondent is to ascertain from the appellant’s discharged solicitors and/or family members whether such application is intended for this may be relevant to whether the hearing should proceed as fixed and ex parte. The respondent should state the outcome of their enquiries and their position on or before 12.3.2025.”

5. On 7 March 2025, the appellant’s discharged solicitors informed the Court in writing that the appellant’s father was not able to secure a flight from the United Kingdom in order to attend the hearing. The solicitors stated that they would continue to notify the Court if he was able to make the relevant arrangements to return to Hong Kong. On the same day, Macrae Acting CJHC made this further direction:

“The Court acknowledges the assistance of the discharged solicitors in contacting the appellant’s father. The Court’s real concern, however, is not whether the father will attend the hearing as a non-party but whether he intends to substitute (for) the deceased in the proceedings following the discharge of legal aid and argue (by himself or legal representatives) that the appeal should continue notwithstanding the appellant’s death, which is the preliminary legal issue at the hearing. If no substitution application is received, the Court may, having regard to the respondent’s position to be indicated, decide whether it will proceed on 19.3.2025.”

6. On 10 March 2025, the discharged solicitors reverted to the Court to say that the Court’s directions had been duly relayed to the appellant’s father, who had yet to make a substantive response. Nothing further has been heard from anyone.

7. The hearing was fixed at 10 o’clock this morning. To err on the side of caution, before the Court convened, a Judicial Court Clerk called three times, at 10 o’clock and at 10:15 am to see whether the father was in, or outside, the courtroom, but there was no response. When the Court convened at 10:30 am, we decided to proceed with hearing arguments from the respondent on an ex parte basis as to whether we should continue with the appeal in the circumstances.

Arguments in support of the continuance of the appeal

8. In the interests of fairness to the appellant and his family, we shall take into account the written submission of Mr Donald in support of the appeal continuing. His principal contentions were that:

(a)  the Single Judge had granted leave to appeal on the basis that the grounds of appeal were reasonably arguable;
(b)  the appellant and his family members have an interest in the outcome of the appeal. Such interest, Mr Donald submitted, had nothing to do with any financial interest dependent upon the outcome but a need to preserve and restore the reputation of the appellant, who had been convicted of a very grave offence;
(c)  there is a strong public interest in the appeal being heard (however, this point was not elaborated upon in Mr Donald’s written submission); and
(d)  the Court should not prevent the appeal from proceeding on a proper adversarial basis (however, this submission was based on the assumption that “the Legal Aid certificate would continue until the conclusion of all legal proceedings”[4], which, for reasons referred to above, did not eventuate).

The respondent’s arguments in opposition

9. Whilst accepting that the appellant’s arguments were based on the relevant factors propounded in HKSAR v Cheng Chee Tock Theodore[5] and R v Smith[6], Ms Claudia Ng, on behalf of the respondent, made the following points:

(a)  leave to appeal was granted in relation to the correctness of the judge’s directions on causation, which, as in Smith, might at most be regarded as a reasonably arguable point but was far from demonstrating that the appellant was or might be innocent[7];
(b)  the interests of the appellant and his family members, whilst important, should not be given exclusive or undue emphasis, since if the appeal were to continue, and ultimately be allowed, no order for re-trial could conceivably be made, which would necessarily deprive the deceased victim and his family of justice and finality;
(c)  there was little public importance engaged by allowing the appeal to continue where valuable but limited judicial resources were to be spent on a moot appeal, given the likely orders which would ultimately be made; and
(d)  the continuation of the appeal on a proper adversarial basis was not possible because of the discharge of legal aid.

10. Ms Ng further drew a distinction between the applicant (or appellant) in HKSAR v Tang Tik Hung[8] and Smith, who passed away in custody as a result of illness, and the appellant who died as a result of his own act of suicide. The Court was invited to regard that as a factor relevant to showing the appellant’s disinclination to continue with his appeal, knowing that he had already been granted leave to appeal.

Discussion

11. The approach as to how a court in this jurisdiction should deal with a criminal appeal upon the death of an applicant (or appellant) was extensively discussed by this Court in Tang Tik Hung. The Court held, at [20], that:

“…if a convicted and sentenced person dies after applying for leave to appeal against conviction or sentence, the Court of Appeal retains the discretion to consider all relevant factors before deciding if the application for leave should continue or automatically terminate and abate. We find that the factors set out at para 51 in the judgment of Cheng Chee Tock Theodore and in Smith most helpful in guiding the Court to decide how to exercise the discretion.”

12. The factors set out in Cheng Chee Tock Theodore at [51] were, of course, made in the context of section 31 of the Hong Kong Court of Final Appeal Ordinance, Cap 484. They were:

“(1) Whether leave to appeal has been or will be granted: The Court will be guided primarily by whether leave to appeal has been granted or, if leave has not yet been granted, by the basis on which leave to appeal is sought and the likelihood of such leave being granted. Where leave to appeal is sought on a point of law, this will probably be a critical factor in any given case since the grant of leave to appeal on that ground will serve to demonstrate the Appeal Committee’s view that the appeal is of sufficient importance to be heard by the Court as the final appellate court in Hong Kong. Similarly, although not as critical as the point of law ground, the grant of leave to appeal on the basis of substantial and grave injustice will be a relevant factor, the weight of which will depend on the circumstances of the particular case.
(2) The existence of an applicant: The existence of a party who wishes the appellant’s appeal to be continued and who makes an application for such continuation will usually be an essential requirement. It would be most unlikely that the Court would consider exercising the discretion to continue if there were no such party. Indeed, in the absence of such a party, the application of the provisions for dismissal of an appeal for non-prosecution (where leave has been granted) will probably result in the dismissal of the appeal.
(3) The continuation of the appeal on a proper adversarial basis: The Court will be concerned that the issues to be determined by it in any continued appeal are to be properly argued. The willingness of the party applying for the appeal to be continued to be substituted as appellant will be relevant in the event the Court considers such substitution to be necessary. Similarly, the Court will wish to be satisfied that the appeal will continue on a proper adversarial basis with appropriate legal representation to argue the appeal. It may wish to be satisfied that legal aid is available for the appellant’s case or that the applicant is otherwise able to instruct legal representatives for the appeal. In cases of exceptional importance, the Court may see fit to appoint an amicus curiae.
(4) The interest of the applicant in the continuation of the appeal: The reason why the party applying wishes the appeal to be continued will be relevant. The financial interest of an appellant’s estate in the pending appeal may be relevant where the executors or personal representatives of the appellant apply for the appeal to be continued. If financial interest is relied upon, the nature of that interest and its amount will be relevant to the weight to be attached to this factor. Similarly, the applicant’s interest in restoring the reputation of the appellant may be relevant but this will be a factor to which varying weight will attach: the graver the offence of which the appellant has been convicted, the more weight this factor will carry.”

13. We consider that those factors are also applicable to a consideration of the present case, whilst nevertheless bearing in mind that an application to this Court is on a rather different statutory basis from an application to the Appeal Committee of the Court of Final Appeal[9]. A Single Judge of the Court of Appeal, when granting leave to appeal, merely has to be satisfied that the grounds of appeal are reasonably arguable[10]. The Court of Final Appeal in Cheng Chee Tock Theodore was at pains to make clear[11]:

“It should be stressed at the outset that these issues are raised in the context of a criminal appeal to this Court. Different considerations may apply in respect of criminal appeals to the Court of Appeal or to the Court of First Instance and it should not be assumed that the answers in this judgment to the questions posed will apply in respect of criminal appeals to those courts.”

14. When an appellant has obtained leave to appeal from the Appeal Committee of the Court of Final Appeal on a point of law of great and general importance (as well as on a substantial and grave injustice limb), as in the Cheng Chee Tock Theodore case, it must be presumed that there is a strong public interest in the appeal being heard. As Dr Christopher Corns has put it, in his book Criminal Appeals in Hong Kong[12]:

“Because of the stringency of the leave requirements, if leave is granted, there will always be a strong public interest in the appeal being heard as the appeal will involve a matter of general public interest. That public interest goes beyond the personal interests of the appellant.”

15. There is no such presumption where leave to appeal is granted by a Single Judge of the Court of Appeal on the basis that the appeal is reasonably arguable. In our view, no importance of any question of law, giving rise to a strong public interest, can be discerned from the continuation of the present appeal.

16. Furthermore, despite counsel’s assertion that this appeal may be taken up and continued by the appellant’s father, the fact remains that no application for substitution has ever been made by him, notwithstanding a lapse of six months since the Court gave its directions on 16 September 2024, for five months of which period legal aid subsisted for both counsel and solicitors until it was discharged on 26 February 2025. Mr Donald’s written submission, in which he made the assertion, was dated 14 October 2024, four weeks after the Court’s directions and four months before legal aid was discharged.

17. We are satisfied that the appellant’s father was duly informed and reminded by the Court of his right to apply to substitute for the appellant in this appeal, and through the discharged solicitors, of the consequences of proceeding with the hearing in his absence. As things now stand, he is deemed to have waived his right by way of his conduct, rendering a proper adversarial process impossible. We should make clear that this is not a case, in our judgment, “of exceptional importance”[13] justifying the appointment of an amicus curiae. In the same vein, any interest of the appellant in the continuation of the appeal would also seem to be more illusory than real.

18. It should be remembered that while the appellant’s family have an important interest (if they wish to pursue it) in wanting to clear their family member’s name on appeal, the deceased’s family also have an important interest in and expectation of justice being done as well as the finality of the case.

19. Having considered and balanced all the circumstances of the case, including the grounds of appeal and their ultimate likely success, we are of the view that there is no justification for exercising our discretion to allow the present appeal to continue following the death of the appellant. Accordingly, we order that the appeal and the related legal proceedings shall terminate and abate.

(Andrew Macrae)
Vice President

(Kevin Zervos)
Justice of Appeal

(Maggie Poon)
Justice of Appeal

Ms Claudia Ng SPP, of the Department of Justice, for the Respondent

The Appellant (deceased) was not represented

[1] HKSAR v Islam Javed Iqbal[2024] HKCA 528, per Macrae VP.

[2] Counsel’s written submission, at [7(iii)].

[3] On 16 September 2024, Master Wong, the Criminal Appeals Master, gave the following direction, inter alia:

“If the late appellant’s family member(s) intends to adduce any new evidence (i.e. affirmation(s) of the late appellant’s family member) in support of their contention (that the appeal should continue by substituting for the appellant), they shall within 14 days, from the date of this letter make an application for leave by way of a notice of Motion supported by an affirmation to adduce fresh evidence pursuant to section 83V of the Criminal Procedure Ordinance.”

[4] Counsel’s written submission, at [7(iv)].

[5] HKSAR v Cheng Chee Tock Theodore (2015) 18 HKCFAR 292.

[6] R v Smith [2004] 1 SCR 385.

[7] It may be noted that the appellant had initially offered to plead guilty to manslaughter on the basis of diminished responsibility prior to trial, which offer was refused by the prosecution: see Case Management Questionnaire, dated 13 September 2022.

[8] HKSAR v Tang Tik Hung [2018] 5 HKLRD 389.

[9] Section 82(2) of the Criminal Procedure Ordinance, Cap 221.

[10] Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540, at [55].

[11] Cheng Chee Tock Theodore, at [11].

[12] Criminal Appeals in Hong Kong by Christopher Corns, at [8.5.1.] at p 402,

[13] Cheng Chee Tock Theodore, at [51(3)].

CACC 33 /2023

[2024] HKCA 528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 33 OF 2023

(ON APPEAL FROM HCCC NO 51 OF 2021)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Islam Javed Iqbal	Applicant

________________________

Before:

Hon Macrae VP in Court

Date of Hearing:	5 June 2024
Date of Judgment:	5 June 2024

____________________

J U D G M E N T

____________________

1. The applicant faced one count of murder^{^[1]} (in the case of HCCC 51/2021), to which he pleaded not guilty; and another count of theft^{^[2]} (in the case of HCCC 52/2021), to which he pleaded guilty. He was convicted unanimously of murder on 2 February 2023, following a trial before Yau J (“the judge”) and a jury of nine. On 6 February 2023, the judge sentenced the applicant to life imprisonment for murder and ordered an absolute discharge for the theft count. He now appeals against his conviction of murder only.

The prosecution case

2. On 28 December 2019, the applicant went hiking with his girlfriend, after which they had a drink somewhere near Hi Lee Path in Yuen Long, New Territories. At 9 pm, after finishing a bottle of vodka with his girlfriend, the applicant went to a 7-Eleven convenience store, situated in Kik Yeung Road, Yuen Long, where he stole two cans of beer; this incident formed the subject matter of the theft charge. The applicant was chased by members of staff of the store, including Mr Tang (“the deceased”).

3. There followed an attack by the applicant on the deceased at On Ning Road, which was captured by one of the CCTV cameras of a shop called “Sufi Fashions”, on the ground floor of Man Yip Building in Hi Lee Path. The relevant CCTV footage (Exhibit P62) was admitted into evidence pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221^{^[3]}, although the view of the scene was partially obstructed by, amongst other articles, the pavement railings and the quality of the video recording was not perfect. Accordingly, a “brightened and magnified version” of Exhibit P62 was also admitted into evidence, marked as Exhibit P62A^{^[4]}.

4. What can be seen from Exhibit P62 and P62A, and there was no dispute about his movements in this regard, is that, after entering Hi Lee Path, the applicant suddenly turned back and ran in the direction of On Ning Road. The deceased was then observed running away from the applicant along On Ning Road, but somehow the deceased stumbled and fell. He was able to get up himself; but, as he was doing so, the applicant kicked him at his upper body and stomped on his head a number of times before leaving the scene along Hi Lee Path. It was also the evidence of PW2 and PW3, who were civilian witnesses standing on Hi Lee Path at the material time, that the applicant had in fact kicked the deceased five to six times and spoken foul language to him^{^[5]}.

5. On 28 December 2019, at 10:18 pm, the deceased was conveyed to the Accident & Emergency Department of Tuen Mun Hospital^{^[6]}; and, on 29 December 2019, transferred to the Anaesthesia & Intensive Care Unit of the same hospital^{^[7]}. On 30 December 2019, at 3:31 pm, the deceased was declared dead^{^[8]}. The autopsy performed by a forensic pathologist, Dr Chiao Wing-fu, on 7 January 2020 recorded that^{^[9]}:

“…the deceased had received a large blunt force impact at right side of head causing a laceration with marked bruising around the scalp and fracture on the underlying right side of skull…
[There were] fractures over the orbital roofs (front base of skull) and extensive areas of haemorrhage and brain damage at the lateral aspect of left temporal lobe. Considering the nature and pattern of these injuries, they could be ‘contrecoup’ injuries, which were inflicted when opposite side of the head was forcefully landing on a blunt hard unyielding surface.”

6. It was Dr Chiao’s conclusion that^{^[10]}:

“…the cause of death as shown by the autopsy was due to ‘Head Injury’. The head injury could be satisfactorily explained by bumping of right side of head against a blunt hard and unyielding surface in a single fall.”

7. The applicant participated in four video-recorded interviews (“VRIs”). Initially, in the 1^st and 2^nd VRIs conducted on 29 and 30 December 2019 respectively, he denied involvement in the incident. In the 3^rd VRI conducted on 31 December 2019 (a video re-enactment was conducted on the same day), he admitted stealing two cans of beer from a 7-Eleven convenience store. He said he was then chased by the deceased, who threatened to beat him to death^{^[11]}, and did in fact attack him^{^[12]}. He therefore pushed the deceased once who fell on the ground, and swore at him^{^[13]}. He then kicked (and/or stepped on) the side of the deceased’s face or forehead twice^{^[14]}. In the 4^th VRI conducted on 31 December 2019, the applicant denied any intention of killing the deceased and said it was a case of manslaughter.

8. The prosecution position was that the applicant was neither drunk nor provoked at the time of the offence; nor was he acting in self-defence^{^[15]}. In order to substantiate the element of the intention to kill or cause grievous bodily harm, the prosecution pointed to “the intensity, the strength, the determination of the defendant’s attack on the deceased”, including his head, to describe the assault on the deceased^{^[16]}.

The defence case

9. The applicant elected to testify at trial. His evidence was generally consistent with his account in the 3^rd VRI as summarised above, although he accepted that he had told a lie that the deceased had initially attacked him; rather, the deceased had only tried to, but did not actually, grab him^{^[17]}. It was contended that, when he pushed the deceased, he was acting in self-defence^{^[18]}.

10. It was also submitted that the deceased suffered a severe head injury as a result of falling over and hitting the ground, which was therefore an accident only^{^[19]}; and that the subsequent kicking by the applicant did not cause his death. In cross-examination of Dr Chiao, the following questions were asked (and answered)^{^[20]}:

“Q. In your examination of the deceased, did you see any signs where -- to indicate that he had been the victim of a kick or the kicks?
A. I don’t have any specific medical findings to support that the deceased had been kicked.
Q. As we’ve seen on the CCTV, it indicates that he appears to be kicking the victim, but there was no injuries or signs to substantiate that, is that the situation?
A. Correct. I don’t have this kind of medical evidence to support that.
Q. Was there anything to indicate that the kicks would have in any way contributed to the deceased’s death?
A. I have no medical evidence to support that any kicking had occurred and the kicking that had contributed to the cause of death, I don’t have this evidence.
Q. No evidence whatsoever to indicate that they contributed to the deceased’s death.
A. Correct.”

11. The applicant also relied, as a partial defence to murder, on the fact that he was provoked; however, that is not the focus of this appeal. It is therefore unnecessary to examine this particular defence in any detail.

The summing-up

12. The principal complaints in this appeal centre on what the judge said to the jury in respect of the attack depicted in the CCTV footage. It is therefore relevant to examine closely the directions in the summing-on this matter.

13. On the first day of his summing-up, the judge told the jury that^{^[21]}:

“You can see the CCTV clip can in fact be divided into three continuous scenes. In the first scene, Tang was running away from the defendant. He tripped himself and fell on the ground. That is the first scene. The second scene is that Tang got up immediately and sat on the ground. The defendant kicked him and he fell flat on the ground. This is the second scene. In the third scene, Tang was lying on the ground and the defendant kicked or stamped on him for a number of times.
Now, if you come to the conclusion that the fatal injury which killed Tang was caused or might have been caused only by the first scene, you will find that the defendant did not kill Tang. You remember the first scene was -- is Tang tripped himself and fall. You will have to find him not guilty of murder or any one of the offences of manslaughter which we will come to later.
If you are not sure which scene caused the death of Tang, you still have to find him not guilty of murder or any one of the offences of manslaughter. If you are sure that the fatal head injury of Tang was caused by the second scene or the third scene or a combination of the two, you will find that Tang was killed by the defendant.
You will remember that Mr Donald says in his closing submission that the pathologist is of the opinion that kicking in no way caused the death of Tang. Now, with due respect, this is not the evidence of the pathologist. What the pathologist says is that there is no specific finding or evidence that Tang had been kicked or that kicking had contributed to the death of Tang. He adds that kicking could cause depressed fractures of the head, but there is no such specific finding, and that whether the injury of the head was caused by kicking did not depend on the nature of the shoes but the energy delivered.
It is of course a question for you to decide whether the kicking or stamping on Tang caused the fatal injury on the head. If you are sure that the fatal head injury was caused by any combination of the three scenes, Tang was still killed by the defendant. If you are sure that Tang was killed by the defendant, you consider the second element of murder that the killing was not done in lawful self-defence. How you consider this element will depend on your finding of facts.”

14. In light of the applicant’s evidence that he pushed the deceased (which was not depicted in the CCTV footage), the judge said to the jury^{^[22]}:

“And if the fatal head injury was caused by the pushing scene in combination with the first scene in the CCTV clip, again the defendant would not be liable because in scene 1, well, in the first scene of the CCTV clip, the injury was caused by the defendant tripping himself and fell down. That is the first scenario.
The second scenario: if you are sure that the fatal head injury was caused by the pushing scene only or in combination with scene 2 or scene 3 depicted in the CCTV clip and you are sure that the defendant was not acting in self-defence, the defendant killed Tang under the first element of murder.
So to explain this a bit more, if you find there was or may be -- might be a pushing scene but you are sure that in the pushing scene the defendant was not acting in self-defence, so if the fatal injury had been resulted from the pushing scene, then the defendant obviously will be liable.
Similarly, if the fatal injury was caused as a result of the pushing scene which you find that the defendant was not acting in self-defence, in combination with scene 2 or scene 3 or both scene 2 and scene 3 in the CCTV clip, of course the defendant will be liable because in the pushing scene, you are sure he is not acting in self-defence, and as I have told you, for the first and second scene in the CCTV clip, legally speaking, they do not amount to self-defence and the defendant will have to be liable.”

15. When the court resumed on the second day of the summing-up, the judge continued as follows^{^[23]}:

“Now, regarding the CCTV clip, I watched it again very carefully yesterday. I discovered I made some mistake when I tell you what I have seen on the CCTV footage, but I must, I must emphasise I am doing it only as a review of the evidence. But how to interpret the footage, what you actually see on the footage is a question for you. You must make your own view as to make what you see on the footage. But in my review of the evidence, of course I have to go into the CCTV footage but at the end of the day, you are to decide what you can see in the footage. And the correction concerns the first two scenes in the CCTV clip.
Now, in the first scene, on the CCTV footage, the defendant can be seen walking into Hi Lee Path from On Ning Road. The timeframe is 00:20. At timeframe 00:29, he turned around and walked back towards On Ning Road. He started to run at timeframe 00:32, making a right turn into On Ning Road. And at timeframe 00:34, at the top edge of the screen, you can see through the railings a person was running away from the defendant, in the opposite of the defendant. And then, of course, there is no dispute this person was Tang. And although it is only at the upper edge of the screen, you can see clearly a person running.
And then at timeframe 00:37, Tang tripped himself and fell. Here I made a mistake and I now tell you the version which I see when I watch the CCTV again. Now, Tang tripped himself and he fell forward with the hands landing on the ground, and so as a result, he was on four on the ground. And then he did not fall completely on the ground. So this is the first scene, but I must emphasise again you have to watch the CCTV very carefully during your deliberation to see how you interpret the CCTV footage.
Then Tang -- at timeframe 00:39 -- Tang was trying to get up, and before he could stand upright, he was kicked by the defendant, causing him to fall flat on the ground, and then he did not get up again. That is the second scene.
The third scene will be concerning about the defendant either kicking or stamping on him. So that is the correction I want to make.
Now, but of course, Mr Donald -– I also make a mistake there. Mr Donald in fact in his submission tells you that as he watched the CCTV, what he sees is that when in scene No. 2, the second scene, sorry, in the first scene, when Tang tripped himself, Mr Donald says he fell on the ground and the right side of his body and head hit on the ground. That is the submission of Mr Donald.
So you can see the importance of yourself scrutinising the CCTV footage to decide what actually was depicted in the CCTV footage and what actually happened at that time. So you must - I must emphasise again - you must form your own view as to what you can see. I do it in the review of evidence but you are the ones who are to decide what the facts of the case are.”

16. In order to direct the jury on the effect of the applicant’s pushing the deceased, the judge provided them with a written handout^{^[24]}, the contents of which were read out as part of his summing-up^{^[25]}:

“In this summing-up, I describe the encounter of Tang and the defendant by use of four scenes. The pushing scene and the 3 scenes depicted in the CCTV clip. The pushing scene can be further categorised as pushing scene in self-defence and pushing scene not in self-defence. The former is when you find that the defendant was or might have been acting in self-defence in pushing Tang while the latter is when you are sure that the defendant was not acting in self-defence in pushing Tang.”

Perfected grounds of appeal

17. By Ground 1, Mr Donald, who again acts for the applicant, but now with Ms Mohamed, argues that the judge erred in providing the jury, in his initial directions, with factually inaccurate descriptions of the various “scenes” broken down from the CCTV footage. Mr Donald submits that, although the mistake was subsequently rectified by the judge himself and clarified with the jury, the resulting prejudicial effect was not properly remedied for it was still contrary to the evidence to tell the jury that a combination of events or “scenes” could have caused the death. It is complained that the judge not only wrongly usurped the function of the jury in make his own findings of fact himself drawn from the CCTV footage, but his directions in relation to the “scenes” were wrong and confusing and provided a new interpretation, namely that the deceased fell on all fours and not completely to the ground, which neither party had suggested at trial. Accordingly, the defence were not given a fair opportunity to counter the suggestion or put it to Dr Chiao for his comment.

18. By Ground 2, Mr Donald contends that the judge should have directed the jury that, if they did not accept his interpretation of the CCTV footage, they should apply their own interpretation of the facts to the law. Absent such a direction, the jury might have convicted the applicant on an erroneous factual basis.

19. By Ground 3, Mr Donald states that the judge misunderstood the evidence of Dr Chiao and thereby unfairly corrected the defence submission that the kicking in no way caused the death of the deceased. He argues that, since Dr Chiao had testified that there was no medical evidence to support any kicking; even if in fact kicks had been administered, such kicks would not have been the cause of death.

Respondent’s submission

20. Ms Ng, for the respondent, submits that it was the common position of both parties to adopt a breakdown of the CCTV footage. The prosecution aimed to show that each “scene” constituted a calculated attack: the defence aimed to demonstrate that the falling over of the deceased, resulting in his severe head injury, was by itself the cause of his death. In the result, Ms Ng submits that the judge could not be criticised for following the same approach in his summing-up to assist the jury.

21. It could hardly have escaped the jury’s attention from the judge’s emphatic and repeated directions on the matter that they were to form their own interpretation of the CCTV footage. Ms Ng argues that there was nothing wrong in telling the jury that the death of the deceased could be caused by any of the “scenes” or a combination of any of them, since it was important to consider how his body landed on, or his head hit, the ground; and whether it resulted in the fatal head injury before he was further attacked by the applicant. Further, the judge could not be criticised for incorporating the pushing scenario, which derived from the applicant’s own evidence, and introduced a distinction in law between defensive and offensive pushing, on which the jury had to be properly directed.

22. Regarding the judge’s mistaken descriptions of the various “scenes”, it is the respondent’s position that such error did not affect the flow of the jury’s consideration of different combinations of those scenes. Moreover, the facts were a matter for them. As for the complaint concerning the judge’s new interpretation of the CCTV footage, Ms Ng submits that Mr Donald had, in his closing speech, invited the jury to interpret the CCTV footage in the way he advocated. In any event, how the CCTV footage should be interpreted was a matter for the jury, not for counsel or the judge, or for Dr Chiao.

23. In response to Ground 3, Ms Ng submits that the absence of medical evidence of kicks to the body of the deceased did not mean that no kicking had in fact taken place. There was clear evidence before the jury, from the CCTV footage, from eyewitnesses and from the applicant himself that he had in fact kicked the deceased. The circumstances in which those kicks took place and their significance in relation to the cause of death were factual issues for the jury to determine.

Consideration

24. I do not propose to dissect the grounds of appeal advanced and determine whether they can or cannot individually be regarded as reasonably arguable. All three grounds of appeal are nevertheless different aspects of the same complaint, which is essentially that the jury did not receive correct directions on the issue of causation. Thus, in general terms, Grounds 1 and 2 complain about the correctness and propriety of the judge’s analysis and interpretation (or re-interpretation) of the CCTV footage in respect of the issue of causation, while Ground 3 suggests that his directions as to the pathologist’s evidence on the effect of the kicking were neither correct nor consistent with the cause of death contended for by the prosecution. Ultimately, all three grounds of appeal bear on the issue of causation.

25. I am satisfied that the issue of causation, which underlies each of the grounds of appeal, is reasonably arguable. Accordingly, I shall give leave to the applicant to appeal against his conviction.

(Andrew Macrae)
Vice President

Ms Claudia Ng SPP, of the Department of Justice, for the Respondent

Mr Richard D Donald and Ms Nisha Mohamed (complimentary brief), instructed by Chiu, Szeto & Cheng, assigned by the Director of Legal Aid, for the Applicant

[1] Contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212.

[2] Contrary to section 9 of the Theft Ordinance, Cap 210.

[3] Admitted Facts, at [15]: Appeal Bundle (“AB”), p 11.

[4] AB, p1342.

[5] AB, p 1390A-I.

[6] Admitted Facts, at [4]: AB, p 8.

[7] Admitted Facts, at [5]: AB, p 8.

[8] Admitted Facts, at [28]: AB, p 13.

[9] Autopsy report, at [3]-[4]: AB, p 1357.

[10] Autopsy report, at [9]: AB, p 1358.

[11] The 3^rd VRI, counter 315: AB, p 945.

[12] The 3^rd VRI, counter 317: AB, p 945.

[13] The 3^rd VRI, counters 319 and 325: AB, pp 945-946.

[14] The 3^rd VRI, counters 373, 375, 410, 419 and 429: AB, pp 949-953.

[15] AB, p 1390O-P.

[16] AB, p 1389E-G.

[17] AB, p 85 S-T.

[18] AB, p 1406Q-U.

[19] AB, p 1401A-C.

[20] AB, p 1385K-Q.

[21] AB, pp 40B-41D.

[22] AB, pp 45N-46B.

[23] AB, pp 73D-74J.

[24] AB, p 1422, at [1].

[25] AB, p 74O-S.

HKSAR v. ISLAM JAVED IQBAL

Related cases with same parties

Files (2)