A A

B B
CACC 28/2020
[2021] HKCA 1831
C C

IN THE HIGH COURT OF THE

D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E COURT OF APPEAL E

CRIMINAL APPEAL NO 28 OF 2020

F F
(ON APPEAL FROM HCCC NO 199 OF 2019)
G G

BETWEEN
H H
HKSAR Respondent
I I
and

J Chung Chun Fung (鍾振豐) (D1) 1st Applicant J

Wong Chun Man (黃俊敏) (D2) 2nd Applicant

K K

L L
Before: Hon Macrae VP, Zervos JA and A Pang JA in Court
M Date of Hearing: 12 November 2021 M
Date of Judgment: 3 December 2021
N N

O JUDGMENT O

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

Q Q
1. The two applicants (whom we shall refer to by their trial
R designations as D1 and D2) were charged on an indictment with a ‍joint R

count of murder; the allegation being that they, on 5 ‍October ‍2008,

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‍together with others, murdered Poon Ka Yan (“the ‍deceased”) in Hong
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‍Kong, contrary to Common Law and punishable under section 2 of the
C Offences Against the Person Ordinance, Cap 212. C

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2. On 9 January 2020, both D1 and D2 pleaded not guilty to

E
murder but guilty to manslaughter upon their formal arraignment; E
however, their pleas were not accepted by the prosecution. Accordingly,
F F
they stood trial before Deputy Judge Keith (“the judge”) and a jury. On

G 10 ‍March ‍2020, both applicants were found guilty of murder and G

sentenced to life imprisonment. They each subsequently appealed against

H H
their convictions.
I I
3. In the light of unexpected developments at the hearing of the
J appeal before this Court, it is necessary to set out certain background J

facts concerning the representation of the two applicants. On 19 March

K K
2020, D1 and D2 each filed a Notice of Application for leave to appeal
L against conviction (“Form XI Notice”). On 3 June 2020, Mr ‍Duncan L

Percy, who had represented D1 throughout his trial, was assigned by the M
M
Director of Legal Aid to further conduct his appeal. Accordingly, on 6
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August 2020, Mr ‍Percy filed six substantive perfected grounds of appeal

O
against conviction, together with accompanying authorities, which were O
followed, on 30 December 2020, by a full written argument in support.
P P
Thus, D1’s appeal papers were ready and in order more than 10 months

Q
before the hearing of the appeal. Q

R 4. However, on the morning of the appeal, 12 November 2021, R

Mr Percy drew to the Court’s attention the fact that D1 might wish to
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apply in person for an adjournment on the basis that his family intended
T to instruct a private lawyer. However, until that happened and he was T

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formally discharged, Mr Percy made it clear that he was ready and
C willing to present D1’s appeal. C

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5. Accordingly, since the Court had, until the hearing, received

E
no hint of any such development, nor had any other counsel, solicitor or E
family member, approached or appeared in court either formally or
F F
informally to make representations on behalf of the applicant, we made

G enquiries of the position from the applicant directly. We were informed G

by him that he had had a video conference from prison with a Senior
H H
‍Counsel on 20 October 2021, some 23 days previously, when he was
I advised that there were “further and stronger grounds of appeal” which I

‍might be advanced before the Court. The video conference took

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apparently about an hour, but the applicant was unable to remember the
K name of the Senior Counsel concerned, although he could remember the K

name of the solicitors’ firm.

L L

6. D1 told us that the consultation with Senior Counsel was a M

M
“one off” occurrence and that neither counsel nor solicitors had since
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been formally retained to represent him, nor had any money been paid

O
over for that purpose by his family. Indeed, as for the rendering of advice O
about “further and stronger grounds of appeal”, we were shown a letter
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from D1’s ‍current solicitors assigned by the Legal Aid Department, dated

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25 ‍October ‍2021, five days after the video conference, advising the Legal Q
‍Aid Department:
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“Insofar as at present known to the aided person, his parents
have engaged Messrs Fung & Fung, in this respect for seeking
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legal advice to the merit of the appeal. The aided person
further told our representatives that Senior Counsel was
T engaged to scrutinize the appeal bundles for advising him the T
merit of the appeal”.
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The applicant then made a request for the hearing to be vacated, thus
C prompting the Director of Legal Aid to write a letter to the assigned C

solicitors, dated 26 ‍October ‍2021, saying that they would not approve the
D D
request to apply to vacate the hearing date, and making it clear that:
E E
“As far as we are concerned, we shall proceed with the case in
accordance with the direction given by the court and the appeal
F shall be heard on 12 November 2021 as directed”. F

G The letter added: G

“If Mr Chung (D1) has decided to turn private, the proper

H H
course to take is for his new solicitor(s’) firm to formally file
the Notice to Act and to make such application as they deem fit
I on Mr ‍Chung’s instructions given to them on private basis”. I

J With respect, this advice was entirely correct procedurally, and the letter J

was duly copied to Mr Percy.

K K

7. On 9 November 2021, an assistant solicitor from the

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assigned solicitors visited the applicant in prison and was informed by
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him that his “family members had raised funds for him to engage a Senior
Counsel and a fresh legal team to conduct his appeal”. However, “they N
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needed time to read through the whole appeal bundles and the case
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management”. The applicant further requested Mr Percy to apply for an

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adjournment of the appeal on 12 ‍November 2021, and was duly advised P
that it was for the Court to determine whether or not to grant an
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adjournment.

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8. On 10 November 2021, the Director of Legal Aid reiterated
S that the applicant’s request was not approved and that the case would S

proceed as listed in accordance with the court’s direction. The same

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advice as to the proper procedure to adopt in the event of private
C instructions being given was again repeated. C

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9. Mr Percy, nevertheless, brought this correspondence to our

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attention at the outset of the appeal hearing, none of which was hitherto E
known to this Court, and made it clear that he was ready to proceed with
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‍D1’s appeal, as were both counsel for the respondent, Ms ‍Jasmin ‍Ching,

G with her Ms Cherry Chong, and Mr John McNamara, who had been G

retained by the Director of Legal Aid to assist D2 at the appeal if

H H
necessary or called upon by the Court. The respondent objected to any
I adjournment, while Mr McNamara said he was “in the Court’s hands”. I

J 10. Having made all necessary enquiries with D1 as to the J

matter, we retired to consider his application to vacate the appeal hearing

K K
so that alternative counsel, whoever he was, could be privately instructed,
L notwithstanding that neither private counsel nor solicitors had in fact so L

far been instructed in respect of the appeal, no costs on account had been M
M
paid, there was nothing before the Court from any such counsel or firm of
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solicitors to the effect that they had been or were to be instructed and

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there were no grounds of appeal before us, other than the ones filed by O
Mr Percy in December of last ‍year.
P P

11. Having taken into account all the relevant circumstances, we

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refused the application. In addition to the uncertainties just referred to,
R we pointed out that D1 already had the benefit of competent counsel, who R

was skilled in both trial and appellate levels of the courts’ jurisdiction,
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who also had the undoubted advantage of representing D1 at the trial and
T who would, therefore, be fully conversant with his case. We determined T

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that it was not in the interests of justice to delay further the hearing of this
C matter, which arose out of an incident on 5 October 2008, more than 13 C

‍years ago. There are other parties to consider in an appeal that is

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adjourned and thereby delayed, including any other applicants and the
E respondent. There is also a public interest in seeing that defendants are E

brought to justice and a final determination as to their guilt or innocence

F F
made with appropriate expedition and without unnecessary delay. It is
G also often overlooked in such applications to adjourn appeals that if an G

applicant is ultimately to be successful in his appeal and a retrial ordered,

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the retrial would sometimes have to take place many years after the
I alleged crime; indeed, in this case, if either applicant was to be I

successful, any subsequent retrial would probably be held close to 15

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years after the events giving rise to it. Such a delay inevitably affects
K witnesses for both sides and does not serve the overall interests of justice K

well.
L L

M 12. Accordingly, we refused D1’s application for an M

adjournment. The applicant immediately responded by indicating his

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intention to discharge Mr Percy, notwithstanding that we had made it
O clear to him that he would have to represent himself if he dispensed with O

his assigned counsel, who was ready, willing and perfectly able to
P P
continue to present the appeal on his behalf. Nevertheless, the applicant
Q insisted on going ahead and discharging Mr Percy. On being reminded Q

by the Court that he would have to proceed with the appeal himself, D1
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then complained that he was not sufficiently familiar with the papers to
S present his own appeal. S

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13. The Court of Appeal is not to be toyed with. Cases which
C have been set down for appeal, with all parties prepared and able to C

proceed, will not be adjourned in the vague hope that an applicant might
D D
obtain the services of other counsel. Cases can take many months to be
E set down for appeal: indeed, following the filing of perfected grounds of E

appeal and written submissions of the parties, this particular case had
F F
been listed on 29 ‍March ‍2021, more than seven months before the
G hearing of the appeal. It should be remembered that if a case has been G

listed for a whole day’s hearing but is unnecessarily adjourned for some
H H
reason, then another applicant will inevitably have been deprived of the
I chance of having his appeal, which may be successful, heard earlier. We I

wish to make clear to all practitioners, as well as lay defendants that, in

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future, it will only be in exceptional circumstances, for which cogent
K reasons for any adjournment must be given, that an appeal which has K

been listed and is ready to be heard on a particular day will be vacated or

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adjourned.
M M

14. Having explained to D1 that he would, having discharged

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Mr ‍Percy, be expected to go ahead and present his own appeal, he said
O that he would nevertheless adopt the perfected grounds of appeal and O

written submission of Mr Percy, as well as his own homemade grounds of

P P
appeal, filed together with his Form XI Notice on 19 March 2020. We
Q shall address all of those grounds, as well as those of D2, in due course. Q

R R
Background and undisputed facts

S S
15. At shortly before 4 am on 2 October 2008, the deceased was
T assaulted by a group of nine young men, who were friends of each other, T

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inside a McDonald’s restaurant (“the restaurant”) on the ground floor of
C Tin Shui Shopping Centre in Tin Shui Estate, New Territories. The group C

included the two applicants, Lam ‍Siu-fung (“Siu-fung”), Ng Pak-lun

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(“Pak-lun”), Tse Wai-lun (“PW7”) and Lam Ka-fai (“PW8”), amongst
E others. All of the assailants then left the scene, the entire incident having E

lasted some 20 seconds. The matter was immediately reported to the

F F
police and an ambulance arrived shortly thereafter. The deceased was
G rushed to hospital for emergency treatment, but was pronounced dead on G

5 ‍October ‍2008.
H H

I 16. At the scene of the incident, eight plastic bread trays 1, a I

broken rubbish compression rod2 and an umbrella stand with six

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umbrellas still lodged inside it3 were seized. Upon forensic examination,
K four of the eight plastic trays and the umbrella stand were found to have K

the deceased’s bloodstains on them. Closed circuit television (“CCTV”)

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footage from the restaurant, which had captured different views of the
M incident from various angles, was subsequently obtained. M

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The prosecution case

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17. The prosecution called several witnesses: two friends of the
P deceased, who had met with him before the incident, Ho ‍Pak-‍fai, P

nicknamed “Siu-keung” (“PW1”) and Ho Wan-pong (“PW2”); three

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customers of the restaurant, who were present at the scene when the
R incident occurred, Chung Tsui-yau (“PW3”), Leung Kam-fu (“PW4”) and R

Li Sze-kuen (“PW5”); the duty manager of the restaurant at the time, Ip

S S
‍Man-ho (“PW6”); and the pathologist who conducted the post-mortem,
1
T Exhibit P13(1)-(8). T
2
Exhibit P14(1)-(2).
3
Exhibit P15.
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Dr‍ Chiao Wing-fu (“PW10”). Among the prosecution witnesses were
C also Lam Ka-fai (“PW7”) and Tse Wai-lun (“PW8”), who participated in C

the assault on the deceased but subsequently pleaded guilty to his

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manslaughter, which pleas were accepted by the prosecution. The
E statement of an ambulance attendant, who arrived at the restaurant to treat E

the deceased, Wong Chi-kuen (“PW9”), was read into evidence.

F F

G 18. It was the prosecution case that, prior to the assault upon the G

deceased in the restaurant, there had been a confrontation between two

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groups of young men, in the evening of 1 October 2008, at an
I amphitheatre behind the restaurant. In one group were, inter alia, PW1, I

PW2 and the deceased. In the other group were, inter ‍alia, Pak-lun, PW7
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and D1. The confrontation stemmed from a dispute between Pak-lun and
K PW1, who had continued to keep in contact with his former girlfriend, K

who had since begun a relationship with Pak-lun. The confrontation

L L
resulted in some pushing and shoving between the rival groups. After the
M incident, Pak-‍lun left the scene, but D1 and PW7 went drinking at the M

Rainbow ‍Bar in Yuen Long, where they met up with D2, PW8, Siu-fung
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and others. The drinking session lasted from approximately 10 pm on 1
O October to about 3 ‍am on 2 October 2008. All were described by PW7 as O

“tipsy” by the time they left the Rainbow Bar4.

P P

Q
19. In the course, but towards the end, of this gathering at the Q
Rainbow Bar, Siu-fung appeared to get angry after receiving a telephone
R R
call. He subsequently asked everyone to board two vehicles, which first

S proceeded to Tin ‍Shui ‍Estate in Yuen Long to pick up Pak-lun, and then S

on to the restaurant. The two vehicles carried nine young men, including
T T
4
AB, p 470A-B
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D1, D2, PW7 and PW8. After the two vehicles had parked, Siu-fung was
C heard to say “Not ‍to let him go”, although no name was given. The C

assailants entered through the front of the restaurant, with PW7 and one
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Ah Bo entering last. After someone had shouted “Beat the fuck of him to
E death”, which was heard by a customer, PW5 5, the nine assailants E

attacked the deceased. During the course of the attack, Siu-fung used the
F F
rubbish compression rod, Pak-lun and then D2 used the umbrella stand
G and D1 used a plastic tray to hit the deceased. D2 was the last person to G

leave the scene of the attack.

H H

I 20. Within a few days of the incident, D1 and D2 both I

decamped for the Mainland via unofficial channels. Subsequently, in

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2018, they were located by Mainland authorities and handed over to the
K police in Hong ‍Kong; hence, the long delay between the incident and the K

trial.
L L

21. D1 was formally arrested on 12 February 2018 6. Having M

M
been cautioned, he responded, “Ah Sir, I gave him only several blows. It
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was not I who beat him to death”7. In a subsequent video recorded

O
interview (“VRI”), D1 said that he was the last one to enter the O
restaurant8, since he and D2 had gone to the rear entrance of the premises
P P
before going to the front entrance9. He admitted he had used a plastic

Q
tray to hit the deceased’s back two or three times, whilst the deceased was Q
lying on his side on the floor10. During the attack, D1 noticed some of the
R R
other assailants using a rubbish compression rod and an umbrella stand to

S 5
AB, p 356J-L. S
6
AB, p 103, counters 38-39.
7
AB, p 104, counters 40-41.
8
T AB, p 105, counter 53. T
9
AB, p 118, counters 228-231.
10
AB, pp 105-106, counters 55-73.
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beat the deceased11. After the attack, the assailants left together, almost at
C the same time12. D1 said that when Siu-‍fung told the other assailants to C

get into the two vehicles at the Rainbow ‍Bar, no one questioned why13.
D D
14
When he arrived at the restaurant, he claimed he had no idea what to do .
E D1 said that he noticed police had gone to his home to look for him on E

the day after the incident15. Therefore, he went to the Mainland by boat
F F
16
from Lau ‍Fau Shan . Since then, he had remained on the Mainland, until
G Public Security officers arrested him on 25 ‍January ‍201817. G

H H
22. D2 was handed over to the police in Hong Kong and was
I formally arrested on 20 March 2018. Having been cautioned, he I

responded, “Ah Sir, I remember that (I) had had alcohol at the time. (I)
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gave him only two kicks. I had never thought of beating him to death” 18.
K In a subsequent VRI, D2 said that prior to the incident, he had been K

drinking alcohol with Siu-fung and others 19. Whilst drinking, he was told
L L
to get into the car20, and they proceeded to the restaurant21. Upon their
M arrival, he ran into the restaurant and trod on the deceased’s legs twice 22, M

while the deceased was lying on the floor being beaten by the other
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assailants23. During the attack, D2 noticed that an umbrella stand, a
O plastic tray and a rubbish compression rod had been used to attack the O

deceased, but he did not remember who used these items 24. So far as he
P P
11
AB, pp 106-107, counters 75-81.
12
AB, p 110, counter 129.
Q 13
AB, p 113, counter 163. Q
14
AB, p 116, counters 208-209.
15
AB, p 123, counter 123.
R 16
AB, p 123, counter 301. R
17
AB, p 123, counters 305-311.
18
AB, p 209, counter 66.
S 19
AB, pp 219-221, counters 180-201. S
20
AB, p 217, counter 159.
21
AB, p 224, counters 238-239.
22
T AB, pp 226-227, counters 259-281. T
23
AB, pp 234-235, counters 357-361.
24
AB, pp 264-266, counters 700-733.
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could recall, he probably left together with the other assailants 25. Within
C one to two days of the incident, D2 took a boat for the Mainland. D2 said C

he did not know why he had assaulted the deceased, and did not know of
D D
26
any plan that the deceased should be attacked .
E E
23. A post-mortem of the deceased was conducted on 9 ‍October
F F
‍2008. PW10, the pathologist, considered that the fatal injury was one to

G the left-hand side of the deceased’s face, resulting in a comminuted G

fracture causing brain damage; none of the other injuries could by

H H
themselves have caused the death. He was also of the view that the
I nature of the fatal injury suggested that it had been caused by something I

with an elongated surface, such as the rubbish compression rod or the

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umbrella stand.
K K
24. In his evidence, PW7 said that counting from October 2008,
L he had known D1 for 4 years; and D2 for about 3 or 4 years. The other L

assailants were also his friends. By the time the other assailants left the M
M
Rainbow Bar, he thought all of them were tipsy, while D2 was “feeling
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slightly drunk”, having mixed beer with liquor and consumed about 12

O
‍cans of beer27. Siu-‍fung had not explained the reason for going to the O
restaurant at the time of leaving the Rainbow Bar. When he returned
P P
from the rear entrance of the restaurant and entered through the front,

Q
PW7 saw through the windows of the restaurant that the assailants Q
including Siu-fung, D1 and D2 were beating the deceased, whom he did
R R
not know at that time. He then rushed up to the deceased, who was lying

S on the floor, and kicked him twice. When he noticed blood coming from S

25
T AB, p 260, counters 658-659. T
26
AB, p 255, counters 602-605.
27
AB, pp 480S-481B.
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the deceased’s forehead, he shouted to his friends to stop. He then left
C the scene, but noticed the other assailants continuing to beat the deceased. C

During his attack on the deceased, he saw D1 use a plastic tray to hit the
D D
deceased, while Pak-lun used an umbrella stand. Upon viewing the
E CCTV footage and the still images obtained from the footage, he E

identified D2 as the person described as “B”, who had used an umbrella

F F
stand twice to hit the deceased. He said that the occasion when D2 had
G assaulted the deceased with the umbrella stand was after he (PW7) had G

left the restaurant.

H H

I 25. In his evidence, PW8 said that, by October 2002, he was 19 I

‍years of age and had known D1 for three or four years. He had known
J J
D2 for two years through Siu-fung. He would meet D2 three or four
K times a week, when D2 joined the drinks gatherings of PW8 and Siu- K

fung. On the night of 1 October 2008, PW8 had been at the Rainbow Bar
L L
but had not been at the earlier confrontation in the amphitheatre. In Tin‍
M Shui ‍Estate, PW8 overheard Siu-fung say to Pak-lun that somebody had M

been “very cocky”. However, there had been no discussion about

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grudges or anyone being angry before Siu-fung received the telephone
O call. O

P P
26. When he arrived at the restaurant, PW8 followed Siu-fung

Q
inside. He then noticed someone rush to the front from behind and Q
attempt to snatch the rubbish compression rod from the deceased, initially
R R
in vain. The deceased fell to the ground, whereupon the other assailants

S rushed up and began to assault him. From the CCTV footage and the still S

shots made from that footage, he was able to identify D1 as the person
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who used a plastic tray; and D2 as the person who used the umbrella
C stand twice to hit the deceased28. C

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27. At the end of her closing address to the jury, Ms Ching, who

E
also acted for the prosecution in the court below, made the following E
submission to the jury about the fatal injury to the deceased29:
F F
“Before I end I have a final comment to make is that one last
thing I wish to add … We heard that this was the fatal blow, it
G G
is likely to be caused by the umbrella stand or perhaps the
rubbish press. You could see from footage that at least two
H males had used the stand, including the 2nd defendant. But what H
is the underlying cause to this current terrible group attack?
Members of the jury, it is called brotherhood. It is the blind
I belief in brotherhood. These nine attackers blindly believe in I
this myth of brotherhood. Brother Siu-fung got problems and
J Siu-fung’s problem perhaps stem from Pak-lun’s grudges with J
Siu-keung. And Siu-fung need help, he needed support and
perhaps he also needed encouragement from a joint force. So
K he solicited the help of a few good friends from the Rainbow K
Bar. Eventually, there were at least eight of them who blindly
acted on the shout of Brother Siu-fung. They went to the
L L
McDonald’s without asking much. They joined in the attack of
the other brothers. It explains everything. There was no
M hesitation to join the quarrel. There was no hesitation to take a M
part. There was no hesitation to continue with the attack. They
provided assistance by actions with a view to facilitating or
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bringing about commission of the offence. There was no
withdrawal from the party even though they were aware of the
O risk, the risk that some of their fellow brothers was -- were O
assaulting the deceased in a furious and fatal way. It was their
acting on such brotherhood that they kill Mr Poon tragically
P and this was the basis of the prosecution’s theory that it was the P
act of this joint enterprise of at least nine males with the intent
Q
to cause really serious bodily harm to Mr Poon that led to the Q
death of Mr Poon, and therefore, the prosecution says that both
the 1st and 2nd defendant who were a party to this joint
R enterprise should be guilty of murder.” R

S S

T T
28
AB, p 539R-T.
29
AB, pp 376I-377B.
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The defence case
C C
28. Both D1 and D2 elected not to testify in court, nor did they
D D
call any witnesses. However, in his closing address, Mr Percy on behalf

E
of D1 submitted that there was no evidence that there was any revenge E
plan after the amphitheatre incident, nor was D1 “out to get anyone”
F F
when he entered the restaurant30. It was further said that D1 had already

G left the scene when the last assailant lifted up the umbrella stand and hit G

the deceased twice. Accordingly, it was argued that D1 should not be

H H
held responsible for what happened, if the jury thought that the last two
I blows were the ones which caused the deceased’s death 31. It was I

suggested that the jury should return a verdict of manslaughter only.

J J

29. D2’s defence case was that the identification evidence of

K K
PW7 and PW8 was tainted by their desire to obtain a reduction in
L sentence, and compromised by the length of time between the incident L

and their first viewing of the CCTV footage32. It was suggested that PW7 M
M
was mistaken in saying that the person who assaulted the deceased twice
N N
with the umbrella stand was D233. Counsel for D2 submitted that, at

O
most, D2 should be convicted of manslaughter; as, indeed, PW7 and PW8 O
had been34.
P P

D1’s grounds of appeal against conviction

Q Q

R 30. In his perfected grounds of appeal and submissions, Mr R

‍Percy had advanced six substantive grounds of appeal and one general
S S
30
AB, p 388C-F.
31
AB, p 390L-P.
32
T AB, pp 394J-396U. T
33
AB, p 494R-T.
34
AB, p 397H-L.
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ground that the conviction was unsafe and unsatisfactory. By Ground 1,
C it was alleged that the judge failed properly to direct the jury in C

accordance with the full terms of Direction 2.2 of the Specimen

D D
Directions in Jury Trials, promulgated by the Hong Kong Judicial
E Institute, as to the burden and standard of proof. Ground 2 averred that E

the judge failed to remind the jury, at any time during the summing-up,
F F
not only that it was not for a defendant to prove his defence, but that if
G the defence put forward was or may be correct, then the defendant was G

entitled to be acquitted of murder. By Ground 3, complaint was made

H H
that the judge failed to give the eponymously-named Liberato direction,
I derived from the Australian case of Liberato & Ors v The Queen35, and I

applied in Hong ‍Kong in Sze ‍Kwan ‍Lung & Ors v HKSAR36.

J J

K 31. Ground 4 alleged that the judge had failed to follow the K

Specimen ‍Directions on inferences and, in particular, to direct the jury as

L L
to how to resolve the situation where there were two equally compelling
M and conflicting inferences to be drawn. This was said to be particularly M

important when the jury had to decide what was in D1’s mind and
N N
contemplation at the time he used a plastic tray to hit the deceased, when
O others around him were using weapons capable of inflicting more serious O

harm. By Ground 5, it was complained that the judge failed to point out
P P
that if one of the co-‍adventurers went beyond what had been expressly or
Q tacitly agreed as part of the common enterprise, the others were not liable Q

for the consequences of that unauthorised act; and that it was for the jury
R R
to decide whether what was done was part of the joint enterprise, or
S whether it went beyond the acts authorised by the joint enterprise. In S

Ground 6, it was complained that the summing-up did not make clear to
T T
35
Liberato v The Queen [1985] 159 CLR 507.
36
Sze Kwan Lung & Ors v HKSAR (2004) 7 HKCFAR 475.
U U

V V
A - 17 - A

B B
the jury that they could only return a verdict of murder against D1, if he
C did in fact appreciate the change in the scope of the joint enterprise after C

weapons were introduced. Accordingly, the judge did not properly

D D
engage the issue of remoteness.
E E
Respondent’s submissions
F F

Grounds 1, 2 and 3
G G

H 32. Ms Ching, on behalf of the respondent, submitted there was H

nothing in the judge’s summing-up which ran counter to the Liberato

I I
principle. On the issues of the burden and standard of proof, the judge
J had already given directions in accordance with the Specimen Directions. J

Further, when explaining the different steps on the ‘Route to Verdict’,

K K
which he provided to the jury, the judge repeatedly reminded the jury
L that, in order to convict either D1 or D2 of the murder of the deceased, L

they had to be sure of each of the answers to the six steps before
M M
advancing to the next step. Read in the context of the directions on the
N burden and standard of proof, there was no room for misunderstanding. N

O O
Ground 4

P P
33. Ms Ching submitted that a direction on inferences should
Q only be given in exceptional circumstances, such as those envisaged in Q

Tang ‍Kwok Wah v HKSAR37. D1 had given no reasons why one should
R R
be given in this case. In the circumstances of this particular case, there
S was direct evidence from the CCTV footage and still photographs; S

moreover, the case involved the resolution of the credibility and

T T
37
Tang Kwok Wah v HKSAR (2002) 5 HKCFAR 209.
U U

V V
A - 18 - A

B B
reliability of prosecution witnesses, as well as what D1 had said under
C caution. A direction on inferences was not, in the circumstances, C

necessary.
D D

E
Grounds 5 and 6 E

F 34. It was the respondent’s position that steps (iv) and (v) of the F

judge’s ‘Route ‍to Verdict’ had directed the jury in accordance with the
G G
38
two key considerations set out in R v Powell , as endorsed by the Court
H of Final ‍Appeal in HKSAR v Chan ‍Kam ‍Shing39. It was submitted that not H

only were the relevant directions fair and appropriate, the judge had also
I I
emphasised that the jury had to be sure that each of the defendants, whilst
J carrying out the criminal venture with others, foresaw that his co- J

assailant might kill the deceased with an intent to kill or to cause really
K K
serious harm using deadly weapons, but decided to participate in the
L venture nevertheless. The directions unequivocally addressed the issue of L

remoteness. M
M

N D2’s grounds of appeal against conviction N

O O
35. D2’s original grounds of appeal against conviction, and his

P
submissions on those grounds, were contained in two handwritten P
documents: one, a set of ‘perfected grounds of appeal against conviction’,
Q Q
dated 31 December 2020, which is in fact a combination of grounds of

R appeal and written argument and runs to 20 handwritten pages; the other, R
a ‘supplemental written argument’, dated 12 September 2021, which
S S
deals with one particular ground and runs to 3 handwritten pages. 52

T T
38
R v Powell [1999] 1 AC 1.
39
HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640.
U U

V V
A - 19 - A

B B
‍authorities in support of the arguments were cited. A further document
C entitled ‘applicant’s reply submissions’, dated 29 October 2021, has also C

been received by the Court, which runs to no less than 26 handwritten

D D
pages, and purports to abandon Ground 9 and part of Ground 3B. All of
E these documents are in a hand that is familiar to the Court from a fellow E

prisoner, and employs the technique of multiple and repetitious grounds

F F
and sub-‍grounds, which not only exceed the limits of the Practice
G Direction but have resulted in a document with, in reality, more than 25 G

grounds of appeal.
H H

I 36. Had these grounds of appeal been produced by counsel, they I

would have been refused and sent back to reduce to discrete, identifiable
J J
grounds of appeal without repetition or argument. The way D2’s case has
K been presented has further raised the question of whether the Single K

Judge leave process should apply to murder cases, as it does to all other
L L
criminal appeals to the Court of Appeal. Nevertheless, all of these
M grounds and submissions are before the Court and have been considered. M

N N
Ground 1A

O O
37. D2 complained that the evidence in relation to the events at
P the amphitheatre was inadmissible in the case against D2. What P

happened at the amphitheatre and in the restaurant were, prima facie,

Q Q
unconnected events. The prosecution’s reliance on the amphitheatre
R evidence to prove that D2 acted upon a plan to attack whomsoever Siu-‍ R

fung wanted to attack, and to explain why some assailants would harbour
S S
an intent to cause serious harm to the deceased, therefore, amounted to a
T material irregularity, thus depriving D2 of a fair trial. T

U U

V V
A - 20 - A

B B
Ground 1B
C C
38. It is said that the judge erred in law by directing the jury 40
D D
that what D1 said in his VRI could be relied upon to decide whether D2

E
had embarked on a plan to attack whomsoever Siu-fung wanted to attack. E

F Ground 2 F

G G
39. Ground 2 complained of the judge’s endorsement of

H prosecuting counsel’s use of the term “brotherhood”, with the suggested H

innuendo or connotation that the assailants were members of a triad

I I
society. This was said to be a material irregularity and, moreover,
J deprived D2 of a fair trial, since it was never suggested at trial that any of J

the assailants had triad affiliations.

K K

Ground 3A (and Ground 3B(iii) as alternative)

L L

M 40. Complaint is made that the judge should not have left it open M

to the jury to conclude that the words “Beat the fuck of him to death”,
N N
which had been overheard by PW5, would have been heard by D2. What
O is now left of the alternative to this ground (the rest of this ground having O

been withdrawn in D2’s reply submissions of 29 ‍October 2021) is that the

P P
judge failed to comment that none of the other “neutral” witnesses in the
Q restaurant had apparently heard this utterance. Q

R R
Ground 4

S S
41. This ground alleged that the judge erred in law by wrongly
T directing the jury that D2’s intended plea of guilty to manslaughter T
40
AB, p 46O-P.
U U

V V
A - 21 - A

B B
amounted to, and was usable by the jury as evidence of, an admission that
C he had been a party to a plan to attack someone, or an understanding to C

join in the attack. It was further complained that there was no evidence
D D
that D2 had in fact tendered such a guilty plea.
E E
Ground 5A
F F

42. Ground 5A averred that the judge wrongly directed that the
G G
pleas of guilty to manslaughter by PW7 and PW8 could be used as an
H admission by them of the existence of a plan or understanding to attack H

with the group; moreover, such pleas were hearsay.

I I

J Ground 5B J

K 43. Ground 5B asserted that the judge improperly and unfairly K

impeached PW8’s own evidence that he had no knowledge of any prior

L L
plan to attack someone on 2 October 2008; and sought to suggest that
M M
both PW7 and PW8 must have known what was going on despite the
absence of any actual evidence from them to that effect. N
N

O Ground 6 O

P P
44. Ground 6 alleged that the judge misdirected the jury as to the

Q
effect of D2’s VRI, in that (i) the judge had inaccurately, and Q
misleadingly, directed the jury that D2 was not asked what he thought
R R
was going to happen at the restaurant; when (ii) D2 had in fact been

S directly asked if anyone had planned to assault the deceased, to which D2 S

replied in the negative; and (iii), the judge did not give a Liberato
T T

U U

V V
A - 22 - A

B B
direction when addressing the jury on the issue of whether D2 knew of a
C plan to attack the deceased. C

D D
Ground 7

E E
45. Ground 7 asserted material prejudice by the failure of the
F judge to permit redaction of D1’s VRI, where he purported to identify the F

male “B” in the CCTV still images as D241, which prejudice could not be
G G
cured by a direction that the jury could not take anything said by D1 in
H his VRI into account when considering D2’s case. H

I I
Ground 8
J J
46. It was argued that the judge had unfairly advanced a theory
K as to why PW7 may have failed to identify D2 during his first interview K

with the police, yet was able to identify D2 during subsequent interviews,
L L
when such a theory had not been put to PW7 and had, in any event, been
M M
contradicted by PW7 himself.

N N
Ground 10
O O
47. Ground 10(i) was similar to Ground 6(iii) and averred that
P P
the judge failed to give a Liberato direction when directing the jury on

Q
the issue of whether D2 was the male “B” in the CCTV footage. Ground Q
10(ii) criticised as “legal nonsense” the judge’s direction that there had
R R
been no evidence from D2 to undermine, contradict or explain the

S prosecution evidence, when D2 had given VRIs, which also constituted S

evidence. Ground ‍10(iii) complained about the judge informing the jury
T T
41
AB, p 130, counters 409-411.
U U

V V
A - 23 - A

B B
that D2’s admission to have trodden on the deceased was incriminating,
C when this section of his VRI was wholly exculpatory as a denial that he C

was the male “B”. Ground 10(iv) suggested that, by telling the jury to
D D
consider the whole of D2’s out-of-court statements in order to decide
E where the truth lay42, the judge had wrongly placed a burden on D2 to E

establish the truth of his account, in circumstances where it was merely

F F
sufficient for the defence to raise a reasonable doubt.
G G

Ground 11
H H

48. Ground 11 took issue with the judge’s directions on self-‍

I I
43
induced intoxication . The effect of the complaint, inasmuch as we
J understand it at all, seemed to be that the jury had been misled into J

thinking that they would have to acquit D2 altogether if they found that
K K
he was intoxicated.
L L

Ground 12
M M

49. Ground 12 complained that in the absence of any expert N

N
evidence as to the correlation between mental and physical impairment
O O
from intoxication, the judge erred by adopting the allegedly

P
impermissible line of reasoning in prosecuting counsel’s closing speech, P
which invited the jury to conclude that none of the assailants were
Q Q
affected by alcohol.

R R

S S

T T
42
AB, p 41C-D.
43
AB, pp 66F-67D.
U U

V V
A - 24 - A

B B
Ground 13
C C
50. Ground 13 was similar to Grounds 6(iii) and 10(i), and
D D
alleged that the judge failed to give a Liberato direction when directing

E
the jury as to whether D2 may have been intoxicated to such an extent E
that the mental element for murder could not be formed.
F F

Ground 14
G G

H 51. The essence of Ground 14, which is in two parts with several H

sub-grounds, was that the judge failed to direct the jury that the requisite
I I
mental element for murder must be possessed by D2 at the time of, and
J not after, the causing of the fatal injury. Since it was possible that the J

fatal injury was the very first blow struck by Siu-fung, the jury should
K K
have been told that, in order to convict D2 of murder, he must have had
L the requisite mental element at least by the time Siu-fung inflicted this L

fatal blow.
M M

Ground 15 N
N

O 52. Ground 15 complained that the judge erred in failing to O

direct the jury that, in order for D2 to be convicted of murder in the

P P
scenario where D2 did not intend to cause serious injury to the deceased,
Q it was necessary for the jury to be sure that, at the material time, D2 had Q

foreseen that a possible consequence of a fellow assailant’s act would be

R R
either death or serious injury, not merely that a fellow assailant would
S have the intention to cause serious injury. In his supplemental written S

submission, D2 suggested that in step (iv) of the ‘Route to Verdict’, the

T T
judge should have directed “(iv) that the defendant whose case you are
U U

V V
A - 25 - A

B B
considering, at the time that the fatal blow was struck, either himself
C intended to cause Poon ‍Ka Yan really serious injury or was aware that C

there was a real risk that one or more of the others might kill Poon Ka
D D
Yan with intent either to kill or to cause really serious injury and
E continued to take part in the attack nevertheless”, whereas the underlined E

part was missing from the direction.

F F

G Respondent’s submissions in response G

H Ground 1A H

I I
53. Ms Ching contended that what happened at the amphitheatre
J was relevant and admissible evidence, setting the background to the J

subsequent attack in the restaurant, and explaining what happened

K K
afterwards and why the deceased was attacked.
L L
Ground 1B
M M

54. It was submitted that the judge was merely stating in general
N N
terms the possible reason for the attack as deduced from the evidence.
O Although such a deduction was made on the basis of the evidence of PW7 O

and PW8, as well as the content of D1 and D2’s VRIs, the jury were
P P
expressly directed that what one defendant said in his VRI could not be
Q used against the other. Q

R R
Ground 2

S S
55. Ms Ching accepted that she had argued that the nine young
T men who attacked the deceased were bound by a blind adherence to T

U U

V V
A - 26 - A

B B
brotherhood, which made them indulge in the ensuing violence. The
C evidence revealed that they lived in the same area and “hung around” C

together in the Tin Shui Wai area, Tim Shum village and the Rainbow
D D
Bar, but there had never been any attempt by the prosecution, or anyone
E else, to suggest that there was any triad affiliation between them. E

F F
Ground 3A

G G
56. It was submitted that whether D2 (and Dl as well) heard the
H words in question was a matter of fact for the jury. There was direct H

evidence from PW5 that he heard those words prior to the assault. The
I I
judge correctly directed the jury as to how they should approach this
J piece of evidence and how it might assist them on the “alternative J

scenario” of whether the defendants were aware of a real risk that one or
K K
more of the others intended to cause the deceased really serious injury.
L L

Ground 3B(iii)
M M

57. In respect of D2’s complaint that the judge failed to N

N
comment that apart from PW5, no one else heard the relevant utterance,
O O
Ms Ching submitted the judge was not obliged to comment on every

P
single piece of evidence. The evidence on this matter was clear and the P
jury could use their common sense.
Q Q

Ground 4
R R

S 58. Ms Ching pointed out, firstly, that counsel representing D2, S

on two occasions during the committal proceedings in the magistracy,

T T
had indicated that D2 would plead guilty to the lesser charge of
U U

V V
A - 27 - A

B B
manslaughter44. Secondly, D2 had pleaded guilty to manslaughter on
C arraignment in the High Court when represented by counsel. Thirdly, at C

the commencement of the trial, there was consensus amongst all counsel
D D
that the jury should be told that both applicants wished to plead guilty to
E manslaughter, but their pleas had not been accepted by the prosecution. E

Prosecuting counsel duly informed the jury of this fact during her
F F
45
opening speech, without demur or complaint . Fourthly, D2’s counsel
G referred to the intended plea of D2 again in his closing speech 46. G

Although D2’s counsel had in his closing speech, proposed a “scenario”

H H
that D2 was simply acting by himself (assuming the jury accepted that
I male “B” was D2), Ms Ching submitted that this proposition was fanciful I

and completely contrary to the evidence in the CCTV footage, which

J J
revealed that male “B” (D2) was one of the first few attackers and
K remained until the end in order to further strike the deceased with the K

umbrella stand. Those last blows should be regarded as the continuous

L L
acts of the whole group. Therefore, the judge was entitled to rely on
M M
these intended pleas as evidence of an acceptance that there had been a

N
plan or understanding to join the group attack. N

O Ground 5A O

P P
59. This complaint was said to be wholly misconceived. Both

Q
PW7 and PW8 testified that they had been convicted of manslaughter on Q
their own pleas and were waiting to be sentenced after giving evidence
R R
for the prosecution. The fact of their pleas was based on evidence and

S was not disputed. S

44
T AB, pp 622-625. T
45
AB, p 628F-G.
46
AB, p 401S-U.
U U

V V
A - 28 - A

B B
Ground 5B
C C
60. The respondent took issue with the criticism that the judge
D D
had re-invented the prosecution case. The judge was doing no more than

E
reminding the jury of the respective positions of the parties, it being the E
prosecution case that there had been a plan or understanding to attack
F F
someone.

G G
Ground 6(i)
H H

61. Ms Ching pointed out that D2 in his VRI was asked whether
I I
anyone had said that they planned to attack the deceased, to which D2
J said “No, no, no”47. However, D2 was “not asked anything else by the J

police about what he thought was going to happen or what it was all
K K
about”, which was the point the judge was making48.
L L
Ground 6(ii)
M M

62. Ms Ching submitted that the judge had no duty to remind the
N N
jury of every single piece of evidence. She noted that D2 also accepted in
O this ground of appeal that the alleged missing parts of the VRI had O

already been mentioned elsewhere in the summing-up49, although D2

P P
claimed that it was in a different context. The criticism that the judge
Q failed to mention these questions and answers was still unfounded. Ms Q

‍Ching added that the jury had a copy of the transcript of the VRI and they
R R
could refer to any part of it as they wished.
S S

47
T AB, p 255, counters 602-605. T
48
AB, pp 45T-46A.
49
AB, p 63B-C.
U U

V V
A - 29 - A

B B
Grounds 6(iii), 10(i) and 13
C C
63. By reference to HKSAR v Zhou Limei50, Ms Ching submitted
D D
that the judge was not obliged to give a Liberato direction in respect of

E
every factual issue in dispute. Moreover, and in accordance with the E
principles set out by the Court of Final ‍Appeal in Law Chung Ki & Anor
F F
v HKSAR51, it was clearly possible in appropriate cases for the Liberato

G principle to be sufficiently conveyed by general directions as to the G

burden and standard of proof, provided that nothing said in the summing-
H H
up ran counter to that principle. Ms Ching submitted that the judge did
I not give any direction which could be said to have undermined the I

Liberato principle.
J J

Ground 7
K K

L 64. Ms Ching pointed out that the jury had been expressly L

directed as to how they should approach the VRIs of each defendant 52; in
M M
particular, they were told that what Dl had said in his VRI could not be
N used against D2. As for the suggestion that D1’s VRI should have been N

redacted where it implicated D2 as male “B”, D1 had been asked directly

O O
by the police if he recognised the male “B” as D2 and there was no
P audible response53. Accordingly, there was nothing to redact. In any P

event, there was the evidence from PW7 and PW8 that male “B” in the
Q Q
CCTV footage was D2. No possible prejudice could have been caused to
R D2 by the content of Dl’s VRIs. R

S S

50
HKSAR v Zhou Limei [2020] 1 HKLRD 234.
51
T Law Chung Ki & Anor v HKSAR (2005) 8 HKCFAR 701. T
52
AB, pp 41M-42A.
53
AB, p 130, counters 410- 411.
U U

V V
A - 30 - A

B B
Ground 8
C C
65. Ms Ching argued that the judge was entitled to give his
D D
views or analysis of the evidence, which were in any event matters of

E
common sense. The judge was merely suggesting the possibility that E
PW7 might not have wanted to implicate his friends when first
F F
interrogated by the police, which was entirely understandable in view of

G the background and circumstances of a case where PW7, PW8, Dl and D2 G

were all close friends at the time of the offence.

H H

Ground 10(ii)
I I

J 66. Ms Ching submitted that the rather disrespectful criticism of J

the judge’s direction was misconceived. The judge was dealing with the
K K
situation where a defendant elected not to give evidence. In so doing, he
L was giving the standard direction. He had never suggested that the jury L

could not consider the contents of the VRIs as part of the respective
M M
defence case.
N N
Ground 10(iii)
O O

67. Ms Ching took issue with this complaint as simply incorrect.

P P
The replies cited by the judge were plainly incriminating.
Q Q
Ground 10(iv)
R R

68. It was pointed out that the directions complained about were
S S
‍in line with Specimen Direction 40.1 (issued in 2013) and Specimen
T ‍Direction 113-5D (issued in 2020, Volume 2). T

U U

V V
A - 31 - A

B B
Grounds 11 and 12
C C
69. Ms Ching submitted that the directions in respect of
D D
intoxication thoroughly addressed all of the relevant issues and were

E
consistent with Specimen Direction 52: the judge specifically stated that a E
drunken intent was nevertheless still an intent; and asked the jury to
F F
consider, upon taking into consideration the condition of the applicants,

G whether they had formed the requisite intent at the material time. G

H 70. In respect of the complaint that the judge had, like H

prosecuting counsel, asked the jury to assess the extent of D1 and D2’s
I I
intoxication by reference to the CCTV footage, Ms Ching referred to the
J case of HKSAR v Sheung ‍Kun Hoo Daniel54 and submitted that the jury J

were entitled to form their own judgement on the extent of intoxication of

K K
D1 and D2 based on their common sense and experience of life, in the
L absence of any expert evidence. L

M M
Grounds 14A and 14B
N N
71. The respondent submitted that the judge had in fact
O O
repeatedly reminded the jury to pay attention to the timing of the requisite

P
mens rea on different occasions at various parts of his summing-up. He P
reminded the jury that they must be satisfied that the defendant whose
Q Q
case they were considering either himself intended to cause the deceased

R really serious injury or was aware, whether before the attack or during it, R
that there was a real risk that one or more of the other co-defendant(s)
S S
intended to cause the deceased really serious injury, but continued to take

T part in the attack nevertheless. T

54
HKSAR v Sheung Kun Hoo Daniel [2011] HKC 199.
U U

V V
A - 32 - A

B B
Ground 15
C C
72. The respondent’s answer to this ground of appeal is that the
D D
judge’s directions were in accordance with the principles re-affirmed in

E
Chan Kam Shing. The alleged omission of stating the intention to cause E
death could not amount to a misdirection. In respect of the complaint in
F F
D2’s supplemental written submission that the judge’s direction was

G erroneous since the judge failed to address the actus reus of the offence, G

whilst addressing the mens ‍rea of the offence in step (iv) of the ‘Route to
H H
Verdict’, it was submitted that the argument failed to take into account
I step (iii), which addressed the actus reus of the offence. Step (iv) should I

not be read in isolation as though step (iii) did not exist. When the jury
J J
were directed to consider whether D2 had the actual foresight that an
K assailant intended to kill or cause really serious injury to the deceased K

(the mens ‍rea of the offence) as stipulated in step (iv) of the ‘Route to
L L
Verdict’, the judge must have been referring to the same assailant
M (whoever it might have been) who struck the fatal blow (the actus reus of M

the offence) as stipulated in step (iii).

N N

O
Discussion O

P 73. As we have said, D1 adopted all of Mr Percy’s grounds of P

appeal and written arguments as well as his own homemade grounds.

Q Q
Although he did not wish to add anything to those grounds and
R arguments, we should say that Mr Percy properly remained for the R

remainder of the appeal and was available had we required his assistance
S S
on any matter. As for D2, having adopted the grounds of appeal and
T arguments written on his behalf, which we had summarised in open court T

U U

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B B
for him, he had nothing to add but made an application for legal
C representation. Again, this was the first time D2 had indicated such an C

application to the Court, notwithstanding that he already had the services

D D
of Mr McNamara to safeguard his interests. For that reason, we
E specifically asked Mr ‍McNamara whether there were any reasonably E

arguable grounds of appeal in D2’s case, which he felt he should bring to

F F
our attention or develop. Mr McNamara explained that he had originally
G been assigned by the Director of Legal Aid to represent D2 on 28 May G

‍2020 and had written two Opinions in respect of the appeal. There was
H H
nothing he wished to draw to our attention. We did not accede to D2’s
I application for an adjournment in order to obtain further legal I

representation.
J J

K 74. Common to both sets of grounds of appeal is the complaint K

that a Liberato direction was not given. The central thrust of the
L L
argument is that since the judge did not use the formula in Specimen
M ‍Direction 2.2 that “if the account [given by the defendant/put forward by M

the defence] is true, then he must be acquitted, but he must also be

N N
acquitted if that account may be true”, the jury might not have
O appreciated that there was no burden upon the defendant to prove O

anything and, moreover, that even if they rejected the defendant’s

P P
evidence on a particular issue, they could still not convict if there was a
Q reasonable doubt about that issue. Q

R R
75. The above direction in Specimen Direction 2.2 is later

S echoed in Specimen Direction 44A.1, namely, “I have previously told S

you that if the account given by the defendant/put forward by the defence
T T
is or may ‍be true, then the defendant must be acquitted”. However, it is
U U

V V
A - 34 - A

B B
to be noted that Specimen Direction 44A.1 is applicable to the “defendant
C who has given and/or called evidence”. Neither D1 nor D2 gave or called C

any evidence in this case.

D D

E
76. Any judge will be careful to tailor his or her legal directions E
so that they do not unnecessarily confuse or overburden a jury. As we
F F
have just noted, Specimen Direction 44A was not directly applicable

G because neither of the applicants had given or called any evidence. G

Moreover, it is a somewhat odd thing to say, in the terms of Specimen

H H
‍Direction 2.2, that if the account given by a defendant or put forward by
I the defence is or may be true, then he must be acquitted, when, as the I

judge pointed out, neither of the defendants was asking to be acquitted,

J J
having both entered pleas of guilty to manslaughter. The real choice in
K the present case was between a conviction for murder and a conviction K

for manslaughter: in those circumstances, it was not helpful to say that

L L
either defendant “must be acquitted” if his account, which he did not give
M in evidence, was or may be true, when it was part of his defence that he M

was guilty of a different crime, namely manslaughter.

N N

O
77. A similar point was made by this Court in HKSAR v Tam ‍Ho O
‍Nam55, albeit in the context of a murder case where the defence put
P P
forward was that the applicant was not guilty of murder but guilty of

Q
manslaughter by reason of provocation. The Court said56: Q

“It seems to us, therefore, that if the judge had given the full
R terms of Specimen Directions 2 and 44A in relation to the R
applicant’s evidence, namely “he must be acquitted if that
S account may be true” (Specimen Direction 2.2), and “I have S
previously told you that if the account by the defendant is or
may ‍be true, then the defendant must be acquitted” (Specimen
T T
55
HKSAR v Tam Ho Nam (Unrep., CACC 219/2019, 16 September 2021).
56
Ibid., at [68].
U U

V V
A - 35 - A

B B
‍ irection 44A.1), it would have confused the jury because the
D
applicant was not asking to be acquitted altogether; and,
C moreover, he did not stand to be acquitted if the jury thought C
his evidence was or might be true.”
D D
In Tam Ho Nam, unlike the present case, the applicant had given
E evidence. E

F F
78. Nevertheless, it is necessary for us to look at the summing-
G up as a whole to determine whether the essential message was conveyed G

in this particular case that the jury must be sure that the defendant was
H H
guilty of murder and, if there was any reasonable doubt about it, they
I must acquit him of murder and consider whether he was guilty of I

manslaughter; and they must still be sure of their verdict even if they
J J
rejected the defence put forward. At the outset of his remarks, the judge
K gave the following direction on the burden and standard of proof57: K

“Now, there are a few other things of a general nature which I L

L
need to say to you. The first and most important is that it is for
the prosecution to prove the defendant’s guilt. You have been
M told that by the lawyers, but the law requires me to tell it to you M
as well. The defendants do not have to prove anything. They
certainly do not have to prove their innocence. And how does
N N
the prosecution succeed in proving their guilt? The answer is
by making you feel sure of it, which is exactly the same thing
O as proving their guilt beyond reasonable doubt, nothing less O
will do. If, having considered all the evidence, you are not sure
of their guilt then you must acquit them. On the other hand, if
P you are sure that they are guilty, then it is your duty to return P
verdicts of guilty.”
Q Q
Later, in explaining the six steps on the ‘Route to Verdict’, the judge
R said58: R

S S

T T
57
AB, p 21I-P.
58
AB, pp 32A-33F.
U U

V V
A - 36 - A

B B
“In order to convict either of the defendants of the murder of
Poon ‍Ka-yan, you will have to be sure of six things. …
C C
……

D If you are sure of all these things, you must convict the D
defendant whose case you are considering is(sic) murder. If
you are not sure of any of these things, you must acquit him of
E murder and go on to consider whether that defendant is guilty E
of the less serious offence of murder(sic).”
F F
We should say that the slips of the tongue in the above passage would
G have been obvious to the jury, since they had the correct words in the G

written ‘Route to Verdict’ before them59. It would have been clear to

H H
them, as it is to us, that the last word in the direction should have been
I “manslaughter”. The judge then went on to deal with the ways in which a I

person may be convicted of manslaughter. J

J

K 79. At the end of his summing-up, the judge, after referring to an K

argument by Mr Percy on behalf of D1, said60:

L L
“You will consider that carefully, but if the prosecution has
M made you sure that the defendant whose case you are M
considering, whether it is (D1) or (D2), intended to cause Poon
Ka-yan at least really serious injury when they hit him in the
N way you are sure they did, then you do not have to go on to N
consider the alternative scenario. You only go on to have to
O
consider the alternative scenario if you are not sure that the O
defendant whose case you are considering intended by what he
did to cause Poon Ka-yan really serious injury.”
P P

80. No complaint can sensibly be made about these directions,

Q Q
all of which would have clearly set out for the jury their duty in respect of
R the burden and standard of proof. Whilst it is true that the judge did not R

use the formula that the jury were to acquit if the defendant’s account was
S S
“or ‍may be true”, that was the inevitable and unmistakeable effect of his
T T
59
AB, p 640.
60
AB, p 71G-L.
U U

V V
A - 37 - A

B B
directions. Nor was anything said in the summing-up which, as the Court
C in Law Chung Ki & Anor warned, ran counter to that message. And nor C

can anything be pointed to anywhere in the summing-up, which might

D D
conceivably have had that effect.
E E
81. It is important to remember what the High Court of Australia
F F
said, and why, in Liberato. The problem there had arisen because of the

G way the trial judge had directed the jury on the burden and standard of G

proof, in circumstances where there was a clear conflict of evidence

H H
between prosecution and defence witnesses. Brennan J held61:
I “The risk of the jury failing to understand the true onus and I
standard of proof was enhanced by the “occasional
J misdirections” referred to in the fourth point of the criticisms J
made by White J. During his summing up the learned judge,
referring to a defence submission that M.K. had “got excited”
K told the jury: K

‘It reflects the fact that in many ways this case boils
L down to who do you believe, and the result after L
asking that question is fairly predictable. However,
M
again, that is for you to say.’ M
A little later, his Honour said:
N ‘You may well think that the attitudes are so far apart N
that you have to make a choice. Again, this is a
O matter for you. As Mr Peek puts it to you, of course O
if you are unable to make a choice, then clearly you
have not been satisfied beyond reasonable doubt and
P the accused must be acquitted.’ P

A failure to distinguish between satisfaction beyond reasonable

Q doubt and choosing between two contradictory stories again Q
appears in a later passage of the summing up:
R ‘Mr Borick did say to you that a verdict of not guilty R
did not mean that you rejected entirely what [M.K.]
S says as much as it may well mean that you are simply S
not satisfied beyond reasonable doubt as to the
allegation. That may be so ladies and gentlemen.
T The case may well be one as I have put to you before, T
61
Ibid., at 514-515.
U U

V V
A - 38 - A

B B
where the real question is who do you believe on the
whole of the evidence, [M.K.] or the accused?’
C C
After the jury retired, counsel sought a redirection. The jury
was brought back, and the relevant redirection was given in
D these terms: D

‘…you are the judges of the facts and it is for you to

E make up your minds about what you think about the E
evidence. In that context in the course of my
F
submissions I recall saying to you this might well be a F
case about whom you might believe. That is a gross
simplification in many ways and I’m sure you will
G bear in mind what I have put to you about considering G
the evidence carefully and weighing it very
carefully’.”
H H

82. It was in the context of the trial judge’s directions that

I I
Brennan ‍J made the statement, which has come to be known as the
J Liberato ‍principle62: J

K “When a case turns on a conflict between the evidence of a K

prosecution witness and the evidence of a defence witness, it is
commonplace for a judge to invite a jury to consider the
L L
question: who is to be believed? But it is essential to ensure, by
suitable direction, that the answer to that question (which the
M jury would doubtless ask themselves in any event) if adverse to M
the defence, is not taken as concluding the issue whether the
prosecution has proved beyond reasonable doubt the issues
N which it bears the onus of proving. The jury must be told that, N
even if they preferred the evidence of the prosecution, they
should not convict unless they are satisfied beyond reasonable O
O
doubt of the truth of that evidence. The jury must be told that,
even if they do not positively believe the evidence for the
P defence, they cannot find an issue against the accused contrary P
to that evidence if that evidence gives rise to a reasonable doubt
as to that issue. His Honour did not make that clear to the jury,
Q Q
and the omission was hardly remedied by acknowledging that
the question whom to believe is ‘a gross simplification’.”
R R
83. Thus, Liberato was a case in which the jury may well have
S S
been led to believe by the trial judge’s directions that their resolution of

T
conflicting evidence depended upon a choice between whether they T
62
Ibid., at 515.
U U

V V
A - 39 - A

B B
believed the prosecution evidence or the defence evidence, without
C sufficient recognition and emphasis being given to the duty of the C

prosecution to make them sure of the prosecution case; and that they
D D
could not be sure if they entertained a reasonable doubt about it, even if
E they did not accept the defence case. E

F F
84. The case before us bears no relation at all to what had

G happened at the trial of Liberato. The judge never, expressly or by G

implication, invited the jury to choose between conflicting prosecution

H H
and defence evidence: indeed, there were no witnesses for the defence,
I while the prosecution evidence depended primarily upon the jury’s I

assessment of the CCTV and photographic evidence, together with PW7

J J
and PW8’s explanation of that evidence. As for the out-of-court
K statements of D1 and D2, they were each clearly inculpatory as to their K

respective participation in the assault on the deceased inside the

L L
restaurant. Although there was an issue as to whether D2 had also used
M the umbrella stand to beat the deceased, it was his case, as he said to the M

arresting officer, that he “had never thought of beating him to death”63. In

N N
the absence of his evidence, his state of mind at the time was primarily a
O matter to be determined from the CCTV and photographic evidence, O

assuming the jury accepted PW7 and PW8’s evidence that he was male
P P
“B” and the circumstances generally.
Q Q
85. We would add that the judge told the jury that even if they
R R
found that the applicants had lied in their out-of-court statements by

S trying to minimise the extent of their own assaults on the deceased, that S

did not make them guilty64:

T T
63
AB, p 199.
64
AB, p 41G-M.
U U

V V
A - 40 - A

B B
“You may decide that the defendants were not telling you the
truth when they were interviewed by the police. For example,
C that (D1) hit Poon ‍Ka-‍yan more than the twice or three times he C
claims, or that (D2) did much more than simply tread on Poon
‍Ka-yan. But just because a defendant has told lies to the police
D D
when he was interviewed, does not mean that he is necessarily
guilty of the offence of which he is charged. If you are sure
E that they did tell lies to the police, ask yourselves whether the E
defendants are guilty despite the lies they told, rather than
because of the lies they told.”
F F

86. The significance of this particular direction is that if PW7

G G
and PW8’s evidence in conjunction with the CCTV evidence was true as
H to the defendants’ roles (as at least Mr Percy appeared to accept in H

addressing the jury65), then D1 and D2 had clearly not been truthful about
I I
the extent of their involvement in the violence which took place. The
J judge made clear that the jury still had to be sure of guilt, even if they J

disbelieved their respective out-‍of-‍court statements.

K K

L 87. We do not think there would have been any misconception L

by the jury as to the burden and standard of proof in this case. We reject
M M
the argument that the particular concerns voiced in Liberato were either
N applicable in this case or, if they were, that they were not met by the N

judge’s directions. Accordingly, we find no substance in those grounds

O O
of appeal by both D1 and D2 citing the absence of a Liberato direction,
P namely D1’s Grounds 1, 2 and 3; and D2’s Grounds 6(iii), 10(i) and 13. P

Q Q
88. In relation to D1’s Ground 4, concerning the alleged

R
inadequacy of the judge’s direction on inferences, the judge had said R
this66:
S S
“Although you must not speculate about evidence which has
not been given, you may draw inferences from evidence which
T T
65
AB, p 71A-F; p 73G-H.
66
AB, pp 24F-25B.
U U

V V
A - 41 - A

B B
has been given. Inferences, though, are deductions. They are
not guesswork. So you can only draw inferences from the
C evidence you have heard if those inferences are based on C
evidence which is reliable and if the particular inferences which
you are being asked to draw are the only inferences you can
D D
draw from the evidence. And Mr Percy illustrated that by his
example with the chocolate cake and the baby and the dog.
E E
But let me give you another example. If I go to bed at night
and the ground outside is dry and I wake up in the morning and
F the ground is wet, true I have not actually seen it rain in the F
middle of the night, but the inference that it rained while I was
asleep is irresistible. Apply that to this case. As you will hear,
G G
if either of the defendants is to be convicted of murder, one of
the routes to conviction is if the prosecution prove not just that
H the defendant whose case you are considering took part in the H
attack on Poon Ka-yan, but that he thought that the attack might
result in Poon Ka-yan being at least seriously injured.
I I
There has been no direct evidence that either of them thought
that. For example, neither of them confessed to having thought
J that that might happen. If all the evidence in the case leads you J
to be sure that the defendant, whose case you are considering,
K must have thought that that might happen, well, that would not K
be you speculating about evidence which has not been given. It
would be you drawing an inference from evidence which has
L been given.” L

M 89. The complaint, as we understand it, is that the judge did not M

tell the jury that where there were two equally compelling inferences, one
N N
for him, the other against him, the jury could not draw the adverse
O inference. However, if the jury were being told that they could only draw O

an inference from evidence they found to be reliable and that they should
P P
only draw such inference if it was the only inference they could draw
Q from the evidence, then they could not have drawn an equally compelling Q

inference against the defendant’s interests because it would not have been
R R
the only inference open to them to draw. The argument is semantic and
S of no substance. S

T T

U U

V V
A - 42 - A

B B
90. D1’s Grounds 5 and 6 can be dealt with at the same time as
C D2’s Ground 15. The judge’s directions, about which complaint is made, C

were as follows67:
D D

“The fourth thing you have to be sure about before you can
E convict either of the defendants of murder is that the defendant E
whose case you are considering either himself intended to cause
Poon Ka-yan really serious injury or was aware, whether before
F the attack or during it, that there was a real risk that one or F
more of the others intended to cause Poon Ka-yan really serious
G injury and continued to take part in the attack nevertheless. G
Now, it is important that you distinguish between these two
scenarios. The first focuses on what the defendants themselves
H intended. The second focuses on something different and that H
is what they thought any of the others intended.”
I I
Having dealt with the first scenario, the judge turned to the second, which
J he made clear the jury only needed to consider if they were not sure about J

the first scenario68:

K K

“So let us turn to that alternative scenario now. Were they

L aware before the attack or during it that there was a real risk L
that one or more of the others intended to cause Poon Ka-yan
serious injury, and despite being aware of that, continued to
M M
take part in the attack, nevertheless? The prosecution point to
two things. The first is what one of the people in the rear of the
N restaurant heard one of the men to say, ‘Beat the fuck of him to N
death.’ If that was heard by either (D1) or (D2), it is of
significant help to you, say the prosecution, on whether they
O would have been aware that there was a real risk that one or O
more of the others intended to cause Poon Ka-yan really serious
injury and continued to take part in the attack nevertheless. P
P
Mr Percy asks you to consider whether that would have been
Q
heard by the others? The witness told you that he heard those Q
words said before the fight started. That evidence that he heard
those words before the fight started is important for two
R reasons. It helps on whether the words were likely to be heard R
by (D1) and (D2), and it helps also on whether they continue to
take part in the attack on Poon Ka-yan knowing that there was a
S S
real risk that one or more of the others intended to cause Poon
Ka-yan really serious injury.
T T
67
AB, p 70H-N.
68
AB, pp 71L-73L.
U U

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A - 43 - A

B B
The other matter which the prosecution point to is the sequence
of events. They say the footage shows that Siu-fung had
C already begun to attack Poon Ka-yan with the rubbish C
compressor rod by the time that (D1) began to hit him with the
bread tray and, of course by the time the man marked with the
D D
“B” hit Poon Ka-yan with the umbrella stand at the end of it all.
For his part, Mr Percy asked you to consider this scenario. It
E may well be that Siu-fung and Pak-lun were the instigators of E
all this. Pak-lun, because it was about the contact with his
girlfriend which was behind it all. And Siu-fung, because it
F F
was he who got everyone to leave the Rainbow and then head
for the restaurant after collecting Pak-lun at Tin Sum Village.
G G
It may be that they did intend to cause Poon Ka-yan really
serious injury, but, said Mr Percy, that did not mean that all of
H the others knew what they had in mind. It is possible that at H
least some of them, including (D1) says Mr Percy, simply
thought that they were going to rough someone up and not to
I cause him really serious injury. After all, no weapons were I
taken to the restaurant. This was a chaotic and fast-moving
J
incident and there simply was not time, said Mr Percy, for (D1) J
to see and take in what Siu-fung was doing and, therefore for it
to occur to him that this attack was to be far more violent than
K he had previously thought. You must consider that scenario, of K
course, without forgetting that it only arises if you are not sure
that (D1) was himself intending to cause Poon Ka-yan really
L L
serious injury when he was hitting him with the bread tray.
The fifth thing you have to be sure about if you are to convict
M M
either of the defendants of the murder of Poon Ka-yan arises
because only some of the men who attacked Poon Ka-yan did
N so with weapons. Indeed, they did so with weapons or with N
things which were already there rather than with weapons
which they took to the restaurant. That is why you have to be
O O
sure that if a particular defendant did not hit Poon Ka-yan with
a weapon which could have caused him really serious injury, in
P other words, which was capable of causing him really serious P
injury, you have to be sure that that defendant was aware of the
possibility that someone else might.
Q Q
As I said, the prosecution only needs to prove that in the case of
a defendant who did not himself use a weapon of the sort which
R was capable of causing Poon Ka-yan really serious injury. So R
you only need to consider this aspect of the case in (D1’s) case
S if you think it possible that the bread tray, which he does not S
dispute hitting Poon Ka-yan with, was not the sort of weapon
which was capable of causing Poon Ka-yan really serious
T injury. And you only need to consider it in (D2’s) case if you T
think it possible that he was not the man who hit Poon Ka-yan
U U

V V
A - 44 - A

B B
with the umbrella stand at the end of (it all?) or if you think it
possible that the umbrella stand likewise was not the sort of
C (weapon?) which could have caused Poon Ka-yan really serious C
injury.”
D D
91. In Chan Kam Shing, the Court of Final Appeal referred to
E the case of Powell, applying Chan Wing Siu v R69, with approval70: E

F “54. In the House of Lords in R v Powell, Lord Hutton F

summarised the principle as follows:

G … it is sufficient to found a conviction for murder G

for a secondary party to have realized that in the
course of the joint enterprise the primary party
H might kill with intent to do so or with intent to H
cause grievous bodily harm.
I I
55. Having endorsed the rule that a defendant who did not
foresee the principal’s act as a possibility falls outside the scope
J of the joint enterprise, his Lordship added: J
However, … if the weapon used by the primary
K party is different to, but as dangerous as, the K
weapon which the secondary party contemplated
he might use, the secondary party should not
L escape liability for murder because of the L
difference in the weapon …
M 56. And, agreeing with Chan Wing Siu v R, Lord Hutton M
held that:
N N
… the secondary party is subject to criminal
liability if he contemplated the act causing the
O death as a possible incident of the joint venture, O
unless the risk was so remote that the jury take the
view that the secondary party genuinely dismissed
P it as altogether negligible.” P

Q 92. In our judgment, the judge’s directions gave proper effect to Q

the judgment of the Court of Final Appeal in Chan Kam Shing. Once the
R R
jury were sure each defendant foresaw, either before or during the time of
S his own participation in the assault on the deceased, that another assailant S

might kill or cause really serious injury to the deceased, but with that
T T
69
Chan Wing Siu v R [1985] AC 168.
70
Chan Kam Shing, at [54]-[56].
U U

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A - 45 - A

B B
foresight he proceeded nevertheless, then the question of remoteness,
C such as it was, was adequately dealt with. C

D D
93. We find nothing in these grounds. In passing, we might add

E
that the question of whether either defendant heard what PW5 heard was, E
as the judge made clear when rehearsing Mr Percy’s argument, a matter
F F
of fact for the jury (see Grounds 3A and 3B of D2’s grounds of appeal).

G G
94. We reject all of D2’s other grounds of appeal, for the reasons
H articulately and capably set out by Ms Ching, for whose submissions we H

are grateful. Many of his grounds are argumentative matters of fact, such
I I
as whether the male “B” was D2, which were plainly issues for the jury to
J resolve. The others, which one might regard as grounds of mixed fact J

and law, such as the admissibility of the amphitheatre evidence, the

K K
concurrence of mens rea with the actus reus and the intoxication
L directions are not reasonably arguable and we reject them. L

M M
D1’s homemade grounds of appeal
N N
95. Given the fact that D1 was representing himself and we had
O O
allowed him, in those circumstances, to rely on his own homemade

P
grounds of appeal, in addition to those drafted by Mr Percy on his behalf, P
there is one aspect of his homemade grounds which we feel we should
Q Q
address. If it had any merit, it would redound to the advantage of D2 as

R well. Grounds 2, 3 and 4 of D1’s homemade grounds of appeal take issue R

‍with the timetable of the trial, which not only spanned the Chinese ‍New
S S
‍Year holiday in 2020 (Ground 2), but was suspended because of the

T unprecedented circumstances occasioned by the Covid-19 pandemic and T

the general adjourned period (“GAP”), during which all jury trials, among
U U

V V
A - 46 - A

B B
other hearings, were suspended by order of the Chief Justice (Ground 3).
C It is said that this hiatus was unfair to the defendants since the jury might C

not remember the evidence because of the delay (Ground 4).

D D

E
96. It is correct that the present trial was one of three ongoing E
jury trials in the High Court, which were suspended because of GAP.
F F
This particular trial had commenced before the judge on 9 January 2020.

G At 1:09 pm on 23 ‍January 2020, which was the Thursday before Chinese G

‍New ‍Year, the prosecution closed its case. The jury and parties were then
H H
released until 29 January 2020, which was the following Wednesday and
I the first working day after the Chinese New Year holiday, on which day it I

was expected that the trial would resume. Pausing here, there is nothing
J J
exceptional about any court adjourning a jury trial to accommodate the
K Chinese New Year holiday. Indeed, there was a natural break in the K

proceedings in any event, since the prosecution case had formally closed.
L L

97. However, on 28 January 2020, it was publically announced M

M
that all court hearings would be adjourned from 29 January 2020. Three
N N
jury trials in the High Court, of which this trial was one, were thereby

O
suspended. The present trial, which was the first of the three trials to O
resume during GAP, reconvened with its jury on 4 March 2020. Thus,
P P
the trial had been adjourned, pursuant to the exigencies of GAP, for a

Q
period of 40 ‍days, including the Chinese New Year holiday and Q
weekends; or, excluding holidays, 26 ‍working days.
R R

98. When the trial resumed on 4 March 2020, both defence

S S
counsel specifically made it clear that they were not applying for the
T discharge of the jury; and the judge, having considered the English case T

U U

V V
A - 47 - A

B B
of R v Woodward & Ors71, formally ruled that the jury should not be
C discharged and the trial should proceed, notwithstanding the lapse of time C

involved. The judge had, meanwhile, prudently prepared a summary of

D D
the oral evidence, which he proposed to read out to the jury before calling
E upon the defendants to make their elections as to whether they wished to E

give evidence. Discussions were conducted between the parties as to its

F F
contents, after which the summary was duly read to the ‍jury between
G 10:47 ‍and 11:11 am on Wednesday, 4 ‍March ‍2020. No further comment G

or complaint was made by the parties in respect of the summary. Both

H H
D1 and D2 then immediately elected not to give evidence, nor to call any
I witnesses. I

J J
99. Following the speeches of counsel on Friday, 6 March 2020,
K the judge commenced his summing-up at 10:11 am on Monday, 9 March K

and completed it early the following day. In the course of his summing-
L L
up, the judge said72:
M M
“My review of the evidence will take a little while because
there has been a long interval between the evidence and the rest
N of the case, as has happened here because of the unparalleled N
closure of the courts, the Court of Appeal has said that the
judge’s review of the evidence may need to be more
O comprehensive than usual.” O

P He repeated the same sentiment at the end of his summary of the P

evidence when explaining why he had taken the time he had to complete
Q Q
73
the evidence . The judge’s comments about the Court of Appeal were no
R doubt derived from the decision of the English Court in Woodward & R

S S

71
T R v Woodward & Ors [2019] 2 Cr App R 28. T
72
AB, p 38B-E.
73
AB, p 77G-J.
U U

V V
A - 48 - A

B B
Ors, which had been brought to his attention when the court resumed on 4
C ‍March 2020, and where the Court had said74: C

D “… while there is a risk that the length of dispersal will deprive D

the jury of a fair opportunity to assess the evidence, that risk
will be reduced by a careful and meticulous summing-up”.
E E

The jury in the present case returned its verdicts in the afternoon of 10
F F
‍March 2020.
G G
100. The case of Woodward & Ors was also a murder case.
H Leading counsel for the appellants had there complained that by the time H

the verdicts were returned, 8 weeks had passed since the conclusion of I
I
the summing-up, and over 11 weeks since the evidence had concluded.
J J
The trial process had become wholly disjointed by delays, which had

K
resulted in the jury separating for two periods of 20 and 22 days during K
their retirement, without any sufficient reminder of the evidence. The
L L
primary witness against the appellants, and the only witness to identify

M
them at the scene and specifically involved in the assault, had concluded M
her evidence some 2½ months before the jury retired, and nearly 4½
N N
months before its verdicts were returned.

O O
101. Such periods of separation of jurors after they had been
P sequestered to consider their verdicts could not, of course, happen in this P

jurisdiction, by virtue of section 22 of the Jury Ordinance, Cap 3.

Q Q
Nevertheless, the Court in Woodward & Ors held that the issue of
R whether a particular length of time that a jury disperses during its R

deliberations, so as to render the trial unfair or otherwise call into

S S
question the safety of the verdict, involves a fact-sensitive analysis.
T T
74
Woodward & Ors, at [79].
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B B
There are a number of matters which may be relevant to that analysis, the
C first of which is the quality of the summing-up itself. Apart from the C

need for a “careful and meticulous summing-up”, the Court noted that the
D D
jury in that case “were assisted by the route to verdict and the written
E directions of law, as well as the other documentary material which E

provided a clear structure within which they could work through their
F F
75
verdicts” . Although we are not saying that such a ‘Route to Verdict’
G was essential, the judge had provided the same assistance in the present G

case.
H H

I 102. A further factor to be borne in mind was the extent and I

quality of the material which the jury had available to them upon their
J J
retirement76. In the present case, quite apart from his summary of the oral
K evidence (following consultation with the parties) given to the jury upon K

their reconvening on 4 March 2020, they had the CCTV evidence and
L L
photographs, which were not the subject of objection or criticism as to
M their integrity, the VRIs and the Admitted Facts. M

N N
103. The Court in Woodward & Ors also considered that the

O
verdicts themselves will be relevant in indicating whether or not the jury O
were able to assess the evidence in relation to each defendant. The Court
P P
found that the different verdicts on different charges in respect of

Q
different defendants suggested that the jury were focussed on their task Q
despite the interruptions77. In the case before us, the verdict against D1
R R
on a joint count on the indictment was by a majority, while that against

S S

75
T Ibid., at [56]. T
76
Ibid., at [80].
77
Ibid., at [84].
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B B
D2 was unanimous, suggesting a conscientious evaluation of the evidence
C in relation to each defendant. C

D D
104. Ultimately, the Court concluded that, while the breaks were

E
unsatisfactory, they did not result in a trial process that was unfair to the E
appellants. Nor were the verdicts unsafe. Accordingly, the appeals were
F F
dismissed.

G G
105. GAP was unprecedented in Hong Kong’s legal history. It
H did not arise from any fault of the court, the parties or the jurors H

themselves. It was a time in which many of the normal functions of life

I I
in this city were reduced or interrupted, resulting in many organisations
J suspending business or closing down, and much of the workforce J

working from home. Although this is not a very telling or necessarily

K K
universal argument, it was not a time in which ordinary people, including
L jurors, would have been particularly distracted by other outside activities, L

such as, for example, travel. The circumstances of GAP were wholly M
M
different from those arising in Woodward & Ors. We have absolutely no
N N
doubt whatsoever that the jury would have been well able to reach their

O
verdicts following the very careful summing-up and thorough O
recapitulation of the evidence they received from the judge. We do not
P P
find the delay between the close of the prosecution case and the

Q
summing-up, both D1 and D2 having decided not to give evidence, was Q
such as to render the trial unfair or the verdict unsafe and unsatisfactory.
R R

106. For the sake of completeness, we do not see any merit

S S
whatsoever in D1’s remaining homemade grounds of appeal. There was
T nothing untoward in the judge allowing the jury to have the exhibits T

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B B
during their deliberations (Ground 1); moreover, neither counsel made
C any complaint about this matter at all. The general assertion that the C

judge’s directions were deficient (Ground 5) was not particularised, but

D D
inasmuch as the complaint engages the grounds drafted by Mr Percy, we
E have already dealt with it. Finally, the suggestion that the foreman E

appeared at times not to concentrate (Ground 6) has no substance at all.

F F

G 107. For the above reasons, the applications for leave to appeal G

against conviction by D1 and D2 are refused and their appeals are

H H
dismissed.
I I

J J

K K

L L
(Andrew Macrae) (Kevin Zervos) (Anthea Pang)
M Vice President Justice of Appeal Justice of Appeal M

N N

Ms Jasmine Ching SPP and Ms Cherry Chong SPP (Ag), of the

O O
Department of Justice, for the Respondent

P The 1st Applicant appeared in person P

Q Mr John McNamara, instructed by Hon & Co, assigned by the Director of Q

Legal Aid, for the 2nd Applicant (to render assistance only)
R R
The 2nd Applicant appeared in person
S S

T T

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