HKCA 271
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 423 OF 2015
(ON APPEAL FROM HCCC NOS 120 AND 432 OF 2014 (CONSOLIDATED))
||Fok Ka Po, Joe (霍家寶) (D1)
||Yeung Ming Ming (楊明明) (D2)
||Ng Yan Lok (吳殷樂) (D3)
Before: Hon Macrae VP, McWalters JA and Pang JA in Court
Date of Hearing: 7 March 2018
Date of Judgment: 9 May 2018
J U D G M E N T
Hon Macrae VP (giving the Judgment of the Court):
1. The three applicants were jointly charged with one count of conspiracy with six named co‑conspirators to throw corrosive fluid with intent to burn, contrary to section 29(c) of the Offences against the Person Ordinance, Cap 212 and sections 159A and 159C of the Crimes Ordinance, Cap 200. On 11 November 2015, after a trial before then Deputy High Court Judge Campbell-Moffat (“the judge”) and a jury, the applicants (whom we shall refer to either collectively as “the applicants” or, where necessary for the purposes of distinguishing between them, “A1”, “A2” or “A3”) were convicted by majority verdicts of 5 to 2, 6 to 1 and 6 to 1 respectively. On 7 December 2015, A1 and A2 were sentenced to terms of 18 years’ imprisonment, whilst A3 was sentenced to 19 years’ imprisonment.
2. A2 initially sought leave to appeal against conviction only, whilst A1 and A3 have sought leave to appeal against both conviction and sentence. We reserved our decision in respect of the appeal against conviction and said we would deliver our judgment and the reasons therefor in due course. This is our judgment.
The prosecution case
3. It was alleged that the applicants had conspired together to throw corrosive fluid with intent to burn the victim, Ms Tam (PW1), whose English name was “Perry”. The background to the conspiracy was that in 2007, PW1 and her boss Mr Lee, who was married to Ho Ping-yee (Madam Ho), became lovers. At the time, PW1 was a clerk in Mr Lee’s company in Cheung Sha Wan, which manufactured watches and clocks. The marriage between Mr Lee and Madam Ho was at the time not a happy one. By Christmas 2011, Madam Ho had become aware of her husband’s infidelity.
4. On 8 March 2013, PW1 was in the company office when the doorbell rang. When she went to answer the door, she was met by a young man wearing a facemask and holding a paper cup in his hand. The young man was PW3, who was 15 years of age at the time. PW3 asked PW1 if she was “Perry”. PW1 was suspicious of the enquiry and turned away without answering the young man. She then felt some liquid splash on the right side of her body. She immediately rushed into another room, where she stumbled and fell. As a result, one of her colleagues, Ms Ng, helped her up and, as she did so, Ms Ng came into contact with the liquid which had been thrown at PW1.
5. Subsequent analysis of the liquid by a Government Chemist established that it was a 92% concentration of sulphuric acid. On medical examination, 3.5% of PW1’s body was found to have been affected by the acid.
6. A1, who was also an employee of Mr Lee’s company, was arrested. He revealed, in three interviews with the police, that sometime before Chinese New Year 2013, Madam Ho had asked A1 to introduce people to her so that she could “disturb” PW1. A meeting was subsequently arranged at a seafood restaurant in Lei Yue Mun, Kowloon. Present at the meeting were A1, A2 (also known as “Shea Chai” or “Shea Gor”), Ho Hoi Kin (also known as “Ho Lan-chai” or “Holland Chai”) and Madam Ho. Madam Ho said that she wanted somebody to splash something on PW1. A photograph of PW1 was then passed around those present.
7. A1 further explained that after the meeting, A2 called to tell him that somebody would telephone A1 to find out if PW1 was at the office. Since A1 also worked with PW1, he would be able to know whether or not she was at work at that time. According to call records and A1’s interview, he received calls which he believed were from A2 asking whether PW1 was in the office, shortly before PW1 was splashed with acid. A2 had then telephoned him afterwards to say that the job had been done.
8. In relation to A2, Lin Chun‑kit (PW2) testified that he had had a meeting with A2 in late February 2013. At that meeting, A2 told him that he had a job for him to do. He was told that PW2 was to splash some corrosive liquid on a woman who had seduced someone else’s husband. PW2 therefore called another person, Ah Sam, for assistance. Ah Sam said that he would arrange for someone to do the splashing, but he would require HK$40,000 for doing so. PW2 therefore contacted A2 and asked for HK$60,000. PW1’s details were then passed to PW2.
9. In respect of A3, Kwok Siu‑yu (PW3) testified that on either 2 or 3 March 2013, A3 had called him and said he had a job for him to do, for which he would be paid HK$3,000. He was then given an envelope containing two addresses; one being PW1’s work place, the other PW1’s mother’s residential address, where PW1 would sometimes stay. PW3 said he was later told by A3 to go to PW1’s workplace to see if PW1 was there. On 8 March 2013, having failed to locate PW1 previously on several occasions, PW3 was given a face mask and a paper cup with some liquid inside it. PW3 then went to find PW1 at her workplace with the intention of splashing acid on her.
The defence case
10. A1 elected to give evidence at trial. He denied that there had been any agreement with the others to throw acid at PW1. The meeting at the restaurant in Lei Yue Mun was a discussion as to how to harass PW1 so as to persuade her to leave Mr Lee alone. If the persuasion did not work and PW1 did not listen, “then she had to be slapped for the purpose of giving vent to anger”. Ho Lan-chai was to do the persuasion. As for the contents of his various interviews with the police, A1 claimed that they had been obtained by threats and inducements, as well as trickery.
11. A2 also elected to testify. He denied that he had joined in the discussion at the restaurant in Lei Yue Mun. His function had been to arrange the seafood and determine how it should be cooked. He agreed that he had sat down at the table briefly, but he did not hear any agreement as alleged. He said he returned to his own seafood shop after making sure that the preparation of the seafood had been done properly. He further claimed that PW2 had framed him up after trying unsuccessfully to blackmail him for HK$600,000.
12. A2 further maintained that his telephone records with Madam Ho were concerned with a debt owed by Mr Lee in the Mainland. Although there were a number of telephone calls between himself and Madam Ho before 8 March (the date when acid was thrown at PW1) and none thereafter, A2 explained that 8 March was the date Madam Ho had arranged another dinner but she did not show up; accordingly, he was embarrassed to call her that day.
13. A3 elected not to testify at trial. The defence presented on his behalf was that he was not present at the restaurant meeting or the incident at which PW1 was splashed with acid, and that PW3 had lied about his involvement in the conspiracy.
Ground of appeal against conviction (the standard of proof)
14. The primary ground of appeal, which is common to all of the applicants, concerns the alleged misdirection on the standard of proof. In her summing‑up, the judge directed the jury as follows:
“In this case, the prosecution must prove that the defendant is guilty. A defendant does not have to prove his innocence. In a criminal trial, the burden, the responsibility, for proving a defendant’s guilt is on the prosecution. How does the prosecution succeed in proving a defendant’s guilt? Well, they make you sure of it. That is the same, if you have heard the phrase, of being ‘satisfied beyond reasonable doubt’. That is the old way that we used to say it. Nowadays we just say ‘you have to be sure’. Nothing less than that will do.
If after considering all of the evidence you are sure the defendant is guilty, then you will find him guilty of the offence. If you are not sure, then the verdict is not guilty.
If the defence put forward by any one of the defendants is or may be correct, then the defendant is entitled to be acquitted. You do not positively have to believe the evidence relied upon by the defence. If that evidence gives rise to a reasonable doubt about the issue, you cannot find that issue against the defendant contrary to the evidence.”
15. No issue is taken with these directions, which are in conformity with the Specimen Directions in Jury Trials promulgated by the Hong Kong Judicial Institute. Had the matter been left there, no complaint would have been made. However, the judge added this remark, which forms the basis of the complaint:
“But I will say, ladies and gentlemen, I think somebody said it, that when we say ‘sure’ we do not mean 100 per cent sure. It is a common sense word and you understand what it means.”
Accordingly, it is submitted on behalf of all three applicants that, by suggesting that the jury did not need to be 100% sure, she effectively lowered the grade of the standard of proof applicable to a criminal case, thus permitting the jury to convict if they were less than sure.
16. Mr Victor Lee, on behalf of A1, relied upon the authority of R v Yeung Kuen Chi & Another, in which the Court had quashed the conviction of the appellant where the trial judge had directed the jury in the following terms:
“There is a burden on the Crown to prove every element of these charges and the Crown must do so beyond a reasonable doubt. He cannot do so to a hundred percent certainty. That is not possible, but...