A A
B B
HCCC 4/2019
[2019] HKCFI 2524
C C
IN THE HIGH COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E COURT OF FIRST INSTANCE E
CRIMINAL CASE NO 4 OF 2019
F _________________ F
G HKSAR G
H v H
I LEUNG Ho-man Defendant I
_________________
J J
Before: Hon Campbell-Moffat J in Court
K K
Dates of Hearing: 13 September and 14 October 2019
L Date of Ruling: 14 October 2019 L
M M
RU LI NG
N N
O Introduction O
P P
1. On 13 September 2019, the court was expecting to deal with
Q the admissibility of the identification evidence to be led by the prosecution Q
in its case against Leung Ho-man on one count of murder. Quite properly,
R R
Mr Donald, on behalf of the prosecution, pointed out that issues of
S admissibility of evidence should ordinarily be dealt with as part of the trial S
process and asked for the defendant to be arraigned. He had an ancillary
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purpose for that application and that was to point out to the defence that,
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upon arraignment and entry of a not guilty plea, the defendant could not
C
thereafter avail himself of any credit for his offer to plead to the lesser C
charge of manslaughter made on 7 January 2019. This was intended as a
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veiled threat. The prosecution were suggesting that a) having offered the
E
plea to manslaughter the defendant could not take a point on identification, E
which was factually inconsistent with that offer, and b) that if they did so,
F F
and thereafter, if they were to be found guilty of manslaughter, they could
G receive no credit for the earlier offer. But that offer had been refused by G
the prosecution. It does not survive such refusal. It does not tie the hands
H H
of the defence. Indeed, having refused the offer, it is the duty of defence
I counsel to take any reasonable and credible point which he can in the I
pursuit of his client’s case. I see no reason at all why, depending upon the
J J
circumstances of the manner in which the defence case is run, that
K Mr Boyton for the defence, cannot pray in aid that early offer to the credit K
of the defendant if he were ultimately to plead guilty or to be found guilty
L L
of manslaughter. It is not the fault of the defence that it was refused.
M M
2. The underlying issue for the prosecution’s request for the
N N
indictment to be put, which was procedurally correct, was to complain that,
O having offered a plea to manslaughter it ill-behoved Mr Boyton to take O
advantage of the court’s offer to investigate other matters of admissibility
P P
which were evident upon the papers and which were raised with the
Q prosecution by the court but not answered to the court’s satisfaction. It Q
seemed that Mr Donald did indeed wish to tie the hands of the defence even
R R
though the offer had been refused and as such was no longer live for
S argument. As I have said, it is the duty of defence counsel to represent S
their client’s interest. That includes testing the evidence of the prosecution
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both before and during trial. Mr Boyton has no choice but to do so as his
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offer on behalf of his client was refused. He is entitled, and has a duty, to
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put the prosecution to proof in those circumstances and thereafter to C
consider the outcome of any application to test the evidence. If it comes to
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pass that such an exercise does not avail the defendant, he is entitled, at
E
any stage of the proceedings, to ask for the indictment to be put again and E
to plead appropriately in front of the court or, if the jury has been
F F
empanelled, before the jury.
G G
3. However, we are getting ahead of ourselves. Mr Donald
H H
asked for the defendant to be arraigned prior to the issue of admissibility
I
of evidence being canvassed. I make no criticism of that. Mr Boyton, who I
had indicated that he might make a section 16(1) Criminal Procedure
J J
Ordinance, Cap 221 application prior to arraignment, then had to choose
K whether to do so prior to arraignment or proceed on substantive K
submissions as to admissibility. He chose the latter course. No doubt,
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because that course would not afford the prosecution a second bite of the
M cherry by bringing a fresh indictment which would have been available to M
them had he made a successful section 16 application.
N N
O 4. The defendant was arraigned and he pleaded not guilty to O
murder. He did not plead guilty to a lesser or alternative offence.
P P
Q
5. After some discussion, the court indicated that it wished to Q
proceed to deal with the issue of identification. That was the matter that
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both parties were prepared for and in respect of which the prosecution had
S been asked to provide video evidence of the two identification parades as S
well as any available CCTV clips. This should have been available within
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the unused material. At this point, the court adjourned for Mr Boyton to
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draft grounds of objection and for Mr Donald to arrange witnesses and to
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provide answers to matters raised by the court which were relevant to the C
issue of identification.
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6. After the adjournment, Mr Donald asked that the indictment E
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be put again. The court refused that application and asked the prosecution
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to justify it. In response, Mr Donald indicated that he believed that the
G
court had come to a view adverse to the prosecution and he now wanted to G
accept the earlier offer of a plea. Technically, that offer was no longer
H H
extant and I presume a new offer had not been made in writing but that
I
there had been some discussion between counsel. I note that the I
application did not come from the defence. In refusing the application at
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that time, the court made it clear that the court had not “come to a view”
K but had, in its duty to its function in case management and in the interests K
of justice, identified issues of admissibility which required addressing
L L
before a jury could be empanelled. Further, there were evidential lacunae
M which suggested that the prosecution case was at best, incompetently M
investigated and prepared, or someone had been less than frank with the
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court. As this was a jury trial, it was for the jury to decide the guilt or
O innocence of the defendant once the prosecution case was in order and at O
that moment in time, I took the view it was not in order. Hence the
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suggestion by Mr Boyton that a section 16 application might be made.
Q Q
7. Given that Mr Donald was taken aback at the court’s refusal
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to allow the indictment to be put again (indeed he suggested that the court
S had no power to do so), the court allowed both parties to consider the S
content of any summary of facts which would form the basis of plea.
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Having had the benefit of an adjournment, the court can only say that the
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product of counsel’s discussions did not assist the court and was not, on
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the face of it, sufficient to found the basis for a plea to involuntary act C
manslaughter on a joint enterprise basis given the current admissible
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evidence and the extent of admissions believed to be made. There being
E
no alternative, and in accordance with R v Chung Kam Fai [1993] E
1 HKC 42, but to give the parties more time to consider their position, the
F F
court adjourned to 14 October which had been the original start date for
G trial. G
H H
8. On return to court on 14 October 2019, the prosecution sought
I
to amend the indictment to add an alternative count of manslaughter and to I
amend the date, which no one had realised reflected the date of assault and
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not the date of death. I have not yet granted that leave to amend. Out of
K an abundance of caution, I believe all matters need to be resolved before K
any further substantive step takes place.
L L
M
9. That is because, the law of both manslaughter and of joint M
enterprise is complex. The court is afforded wide powers of sentencing
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ranging from a non-custodial sentence to life imprisonment. A plea entered
O on this basis must be done properly providing a clear basis upon which the O
defendant is to be sentenced. We must not also forget that the family of
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the deceased are also interested parties in these proceedings.
Q Q
10. A number of issues arise from this turn of events. I will start
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with the difficulties arising from acquiescing in Mr Donald’s application
S and allowing the indictment to be amended and a further plea taken, S
because by that stage, the court’s hands are tied. In HKSAR v Chong
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Chee-meng CACC 315/2007, with reference inter alia to R v Kerrigan
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(1993) 14 Cr App R (S) 179, if, after trial (and I add “or plea”) and at the
C
sentencing stage, the defence wish in any way to dispute or expand upon C
the basis of plea evidenced by the summary of facts, it is trite law that a
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Newton hearing should be held. If that were to happen, the court can
E
require the prosecution to establish its version of events to the correct E
criminal onus and standard of proof. As at this moment in time, on the
F F
admissible evidence I have before me, they could not do so. It may be that
G Mr Donald has been lulled into a false sense of security believing that his G
job is complete once he has obtained a plea and that any argument as to the
H H
basis of sentence is for Mr Boyton to raise and make out. That does tend
I to be the practice nowadays. It is not always the case that in a Newton I
hearing it is for the defence to raise the evidential issue on a balance of
J J
probabilities. In R v Robert John Newton (1983) 77 Cr App R 13, the Lord
K Chief Justice said that where there has been a guilty plea and there is a K
conflict between the prosecution and the defence as to the facts, the court
L L
has a choice. It can require a plea of not guilty to be entered and allow the
M jury to determine the issue; the judge may hear evidence from both parties M
and come to its own conclusion or the judge can hear submissions of
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counsel but if the latter course is adopted and there is substantial conflict
O between the parties, the judge must err on the side of the defence. Which O
course is to be adopted is a matter for the court subject of course to hearing
P P
both parties upon it. The judge is not bound by any agreement between
Q counsel and is entitled of her own motion to insist on a Newton hearing1 Q
(or one of the other options) if the court is concerned about the basis of
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plea for sentencing purposes.
S S
T T
1
R v Underwood & Ors [2005] 1 Cr App R 178
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11. The circumstances before the court today are a prime example
C
of why it is not always the case, as has become the practice, for a Newton C
hearing to be the only means by which the defence seek to dispute the basis
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of plea and the court can satisfy itself that it has a proper basis for that plea.
E
The issue arising here is that it is possible that the evidence which the E
prosecution could prove to the requisite standard is problematic. Is there a
F F
proper basis before the court upon which the court could find the defendant
G guilty of involuntary act manslaughter by reason of joint enterprise2? At G
present, on the evidence before the court or on the current Summary of
H H
Facts, I think not.
I I
12. If that were insufficient to provide grounds for refusal, at the
J J
moment, to allow the indictment to be put once more, I rely upon R v
K Yorkshire Water Services Ltd [1995] 16 Cr App R (S) 280 in which the K
court said that where a judge is not prepared to accept a basis of plea
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already entered, then a Newton hearing must be held under which the
M degree of blameworthiness of the defendant could be investigated. Let us M
for argument’s sake debate this ratio. It envisages a plea already agreed
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upon and tendered. The judge’s hands are tied and the only recourse is a
O Newton hearing in which the prosecution must prove its case and the O
defence have an evidential burden to raise any issue it wishes the court to
P P
take into consideration. In R v Beswick [1996] 1 Cr App R (S) 343, where
Q neither the prosecution nor the defence asked for a Newton hearing but Q
where there was a substantial conflict in the court’s eyes, the Court of
R R
Appeal stated it is quite clear that the initiative in such a matter must be
S with the judge, and he cannot proceed to try and resolve that conflict S
without the benefit of evidence. On the other hand, in HKSAR v
T T
2
R v Bryant (1980) 1 NZLR 264
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Mohammad Nadim, CACC 172/2009, Lunn J (as he then was) said a judge
C
was entitled to reject implausible or fanciful mitigation without recourse to C
a Newton hearing. It must surely follow that a judge is entitled to reject an
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implausible and unproven prosecution case, but on what basis? Must it go
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to trial? Must the court consider that only after plea and a Newton hearing? E
And what if that exercise, within a Newton hearing, indicates that there is
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wholly insufficient evidence to form the proper legal basis of the plea?
G What then? Given the current state of the papers, this court believes that G
the proper and fair way forward, subject to hearing counsel on this, is to
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hear the arguments upon admissibility first. The prosecution and the court
I can then take stock of the evidence and will be in a better position to I
ascertain whether a plea should be accepted and upon what basis. There is
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no prejudice to either party in taking this course. I make it clear, that such
K an exercise, despite any comments I have made in the debates, is not K
intended to usurp the function of the jury. It seeks to ensure that only
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relevant admissible evidence is placed before the jury which is capable of
M proving the guilt of the defendant to the requisite standard and on the basis M
advanced by the prosecution, which I have to say still, at the moment, is
N N
not altogether clear on the law.
O O
13. On 9 October 2019, a new Summary of Facts, signed by
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prosecution counsel, was filed with the court. Within it was an admission
Q unsupported by prosecution evidence that the defendant had punched and Q
kicked the deceased after the assault by Wong Fu-shuen. Para 3 of that
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Summary outlines a series of events which were, as currently understood
S by the court, physically impossible to carry out if the witnesses for the S
prosecution are to be believed as to the position of the victim’s body at the
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relevant time. It is also unsupported by the medical evidence, which
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indicates four small abrasions to the head and just one small abrasion to
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the back of the chest and three subcutaneous small bruises to the front and C
back of the chest, which, I might add, are consistent with falling on the
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table top and onto the floor but not consistent with a direct and prolonged
E
assault by a group of at least five persons one of which is said to be the E
defendant. Mr Donald maintains that matters not for it is not his own acts
F F
for which he stands trial but for the acts of Wong Fu-shuen, the man who
G actually murdered the deceased. G
H H
14. To aggravate the issue further, the prosecution witnesses and
I
the Summary of Facts suggest that the defendant left with the main I
offenders but there is no CCTV in support. Yet there is later CCTV which
J J
sees him apparently calmly leaving with someone I presume to be his
K girlfriend, if indeed it is the defendant in the CCTV clips, and I have my K
doubts. The prosecution have provided no such clips of the two main
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assailants as part of a group of five, which the witnesses say left the club
M together immediately after the assault. The court had asked for any such M
evidence on the last occasion and asked again today. Mr Donald had not
N N
been provided at that stage with any such CCTV footage, which I find
O surprising as the police were able to find footage of the defendant O
apparently leaving the club.
P P
Murder, manslaughter and joint enterprise Q
Q
R 15. This is the conundrum facing the court. The prosecution ask R
the court to allow the defendant to plead guilty to manslaughter in the
S S
alternative to murder on the basis of “joint enterprise unlawful involuntary
T act manslaughter”. That plea is premised upon the fact that the principal T
offender had already dealt the two killer blows to the head of the victim
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when he shouted, “Hit him to death!”, at which point in time others,
C
including the defendant who joined in at the attack at that point and C
punched and kicked the victim for two to three minutes or, as other
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witnesses say, 20 to 30 seconds; in any event, a very short period of time
E
and we also know with no apparent really serious bodily harm arising. The E
cause of death is accepted to be the injury to the brain caused by two blows
F F
with a bottle. Given the position of the victim at this time, wedged between
G the bench and the table with his head towards the wall and next to another G
bench, there is no medical evidence to suggest that the kicking and
H H
punching to the body of the victim occurred in the manner relied upon in
I the witness statements or in the manner relied upon in the current Summary I
of Facts. Indeed, other than the injuries to the victim’s brain, there were
J J
very few injuries to the victim and no wounds of any kind save for the cut
K to the nose caused when the first bottle was smashed over his head, which K
was before the participation of the defendant. There does not, on the papers,
L L
appear to be any grievous bodily harm resulting from the actions of the
M accessories, which in any event, all post-dated, what I will call, “the M
bottling”. In other words, there does appear to be a joint enterprise but
N N
there does not appear to be any causal link between that current joint
O enterprise and the injury which caused death, as it pre-dated the joint O
enterprise.
P P
Q 16. I think it would be helpful to start from first principles and Q
analyse joint enterprise unlawful act involuntary manslaughter as it applies
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to the facts of this case.
S S
17. It is trite law that there must be a coincidence of actus reus
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and mens rea of a crime. On an indictment for murder it must be proved
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that the defendant, by his own act or unlawful omission caused death in
C
order for him to be guilty as principal. In every result crime, such as C
murder or manslaughter, causation is an issue. This is a question of both
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fact and law. Joint enterprise apart, the defendant’s act cannot normally be
E
regarded as the cause of an event if the event would have occurred in the E
same way had the defendant never participated. As a starting point, it must
F F
be proved that but for the defendant’s conduct, the event would not have
G occurred3. The defendant’s conduct we know need not be the sole or the G
main cause of death so long as it significantly contributed to his death4 or
H H
was more than negligible or de minimis5 or, where the victim may already
I be dying, the act of the defendant accelerated death6. There is no issue here I
but that the bottling caused death. There can equally be no issue that the
J J
other contusions were not really serious bodily harm. They can be
K dismissed. K
L L
18. The mens rea of course is an intention to kill or cause grievous
M bodily harm i.e. really serious bodily harm. M
N N
19. All unlawful homicides, which are not murder, are
O manslaughter. This is further divided into voluntary and involuntary O
manslaughter. The distinction between them being the defendant’s intent
P P
at the time of the actus reus. It is voluntary manslaughter where the
Q defendant had the necessary intent but a mitigating circumstance has arisen Q
such as diminished responsibility. I do not believe either party here
R R
submits this is a case of voluntary manslaughter. Only where there is no
S S
3
R v White [1910] 2 KB 124, where the defendant poisoned the victim’s drink but the victim dies of
natural causes before the poison can take effect.
T 4 T
R v Warburton and Hubbersty [2006] EWCA Crim 627 (CA)
5
R v Williams [2010] EWCA Crim 2552
6
R v Dyson [1908] 2 KB 454
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intention to kill or cause grievous bodily harm, can it be said to be
C
involuntary manslaughter. I presume if the prosecution accept a plea on C
this basis they accept that the defendant did not have the necessary intent
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for murder or grievous bodily harm. Involuntary act manslaughter is
E
further subdivided into four: E
(i) manslaughter by unlawful and dangerous act;
F F
(ii) manslaughter by gross negligence;
G G
(iii) manslaughter by subjective recklessness; and
H H
(iv) corporate manslaughter.
I I
20. Only manslaughter by unlawful and dangerous act can be J
J
relevant to these proceedings. Any death caused whilst in the course of
K K
committing an unlawful and dangerous act is manslaughter. It requires the
L
intention to do the unlawful act even where the defendant might only have L
foreseen, if at all, a risk of some minor harm being caused. But it must
M M
cause death. It can be seen therefore that even if the defendant can be said
N to have carried out an act which falls to be one which is both unlawful and N
dangerous, the prosecution still has difficulty with the issue of causation.
O O
P
21. The defendant cannot be indicted as a principal either for P
murder or for involuntary manslaughter by reason of an unlawful and
Q Q
dangerous act.
R R
22. How then does joint enterprise assist them in making out their
S S
case? For that we must consider HKSAR v Chan Kam Shing FACC 5/2016
T
which affirmed the existing law on joint enterprise as set out in Chan Wing T
Siu v The Queen [1985] AC 168. The court in Chan Kam Shing considered
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the relationship between accessorial liability and joint enterprise. It
C
defined accessorial liability as: C
“… one who is present and, by way of actus reus, renders
D D
assistance or encouragement to the principal in the
commission of the offence 7 . The aider and abettor must
E provide active assistance or encouragement by words or E
action.”
F F
whereas it defined joint enterprise as:
G G
“The essence of the joint criminal enterprise principle involves
the accomplice’s culpability for the criminal act of another
H H
person, of a co-adventurer – not his own act – falling within
the agreed scope of the joint enterprise or foreseen as a
I possible incident thereof8.” I
J 23. To establish the accessory’s guilt, the prosecution must be J
able to prove the commission of the principal offence and the accessory’s
K K
performance of intentional acts capable of assisting or encouraging that
L offence, with knowledge of the essential facts constituting the offence and L
the intention to assist or encourage its commission9. In DPP for Northern
M M
Ireland v Maxwell [1978] 1 WLR 1350, Lord Scarman said “the guilt of an
N accessory springs, according to the court’s formulation: “… from the fact N
that he contemplates the commission of one (or more) of a number of
O O
crimes by the principal and he intentionally lends his assistance in order
P that such a crime will be committed...” The relevant words here, for the P
purposes of this case, are “contemplates the commission of one (or more)
Q Q
crimes” and “will be committed”, both presupposing a future event.
R R
S S
T 7 T
Ferguson v Weaving [1951] 1 KB 814 at 818-819; R v Stringer [2012] QB 160 at §43
8
Chan Kam Shing §40
9
Chan Kam Shing supra §15
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24. The rise of joint enterprise came about as a result of cases
C
where there was an evidential or a situational uncertainty e.g. not knowing C
which of the two defendants struck the fatal blow or where events evolved
D D
very differently from that which was envisaged by the defendant. Neither
E
of these difficulties are present in this case as it is clear on the facts who E
struck the fatal blows and at what point in time. The prosecution could
F F
have proceeded upon accessorial liability in its simplest form on that basis,
G although they would still have fallen foul of the chronology of events. G
They did not proceed, as currently outlined, on that basis.
H H
I
25. Why have the prosecution sought to proceed on a joint I
enterprise basis? Liability under the doctrine of joint enterprise is not
J J
derivative. It is not dependent upon proving that one person (the principal)
K committed the main offence and that another (the accomplice) assisted or K
encouraged its commission. Liability is independently based upon each
L L
defendant’s participation in a joint criminal enterprise with the requisite
M mental state to constitute the offence relevant to the defendant in question 10. M
But participating in a common unlawful enterprise is one in which it must
N N
be proved that a crime is “foreseen” as a possible incident of that common
O unlawful enterprise. It is forward looking. O
P P
26. It may be that the prosecution can ask the jury to infer that the
Q defendant punched and kicked the victim intending death or grievous Q
bodily harm but it still cannot prove a causal link, at present, between that
R R
act and intention, to the actual cause of the victim’s death, which pre-dated
S the common enterprise. Having embarked upon a criminal enterprise he is S
of course responsible for the acts of others in carrying out that enterprise
T T
10
Chan Kam Shing supra §33.
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but he is not responsible for acts which have already been carried out and
C
before he joined the criminal enterprise. C
D D
E E
(A P Campbell-Moffat)
F F
Judge of the Court of First Instance
High Court
G G
H Mr Richard Donald and Ms Tina Mok, counsel on fiat, for HKSAR H
I Mr David Boyton, instructed by Au-Yeung, Cheng, Ho & Tin, assigned by I
the Director of Legal Aid, for the defendant
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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HCCC 4/2019
[2019] HKCFI 2524
C C
IN THE HIGH COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E COURT OF FIRST INSTANCE E
CRIMINAL CASE NO 4 OF 2019
F _________________ F
G HKSAR G
H v H
I LEUNG Ho-man Defendant I
_________________
J J
Before: Hon Campbell-Moffat J in Court
K K
Dates of Hearing: 13 September and 14 October 2019
L Date of Ruling: 14 October 2019 L
M M
RU LI NG
N N
O Introduction O
P P
1. On 13 September 2019, the court was expecting to deal with
Q the admissibility of the identification evidence to be led by the prosecution Q
in its case against Leung Ho-man on one count of murder. Quite properly,
R R
Mr Donald, on behalf of the prosecution, pointed out that issues of
S admissibility of evidence should ordinarily be dealt with as part of the trial S
process and asked for the defendant to be arraigned. He had an ancillary
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purpose for that application and that was to point out to the defence that,
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upon arraignment and entry of a not guilty plea, the defendant could not
C
thereafter avail himself of any credit for his offer to plead to the lesser C
charge of manslaughter made on 7 January 2019. This was intended as a
D D
veiled threat. The prosecution were suggesting that a) having offered the
E
plea to manslaughter the defendant could not take a point on identification, E
which was factually inconsistent with that offer, and b) that if they did so,
F F
and thereafter, if they were to be found guilty of manslaughter, they could
G receive no credit for the earlier offer. But that offer had been refused by G
the prosecution. It does not survive such refusal. It does not tie the hands
H H
of the defence. Indeed, having refused the offer, it is the duty of defence
I counsel to take any reasonable and credible point which he can in the I
pursuit of his client’s case. I see no reason at all why, depending upon the
J J
circumstances of the manner in which the defence case is run, that
K Mr Boyton for the defence, cannot pray in aid that early offer to the credit K
of the defendant if he were ultimately to plead guilty or to be found guilty
L L
of manslaughter. It is not the fault of the defence that it was refused.
M M
2. The underlying issue for the prosecution’s request for the
N N
indictment to be put, which was procedurally correct, was to complain that,
O having offered a plea to manslaughter it ill-behoved Mr Boyton to take O
advantage of the court’s offer to investigate other matters of admissibility
P P
which were evident upon the papers and which were raised with the
Q prosecution by the court but not answered to the court’s satisfaction. It Q
seemed that Mr Donald did indeed wish to tie the hands of the defence even
R R
though the offer had been refused and as such was no longer live for
S argument. As I have said, it is the duty of defence counsel to represent S
their client’s interest. That includes testing the evidence of the prosecution
T T
both before and during trial. Mr Boyton has no choice but to do so as his
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offer on behalf of his client was refused. He is entitled, and has a duty, to
C
put the prosecution to proof in those circumstances and thereafter to C
consider the outcome of any application to test the evidence. If it comes to
D D
pass that such an exercise does not avail the defendant, he is entitled, at
E
any stage of the proceedings, to ask for the indictment to be put again and E
to plead appropriately in front of the court or, if the jury has been
F F
empanelled, before the jury.
G G
3. However, we are getting ahead of ourselves. Mr Donald
H H
asked for the defendant to be arraigned prior to the issue of admissibility
I
of evidence being canvassed. I make no criticism of that. Mr Boyton, who I
had indicated that he might make a section 16(1) Criminal Procedure
J J
Ordinance, Cap 221 application prior to arraignment, then had to choose
K whether to do so prior to arraignment or proceed on substantive K
submissions as to admissibility. He chose the latter course. No doubt,
L L
because that course would not afford the prosecution a second bite of the
M cherry by bringing a fresh indictment which would have been available to M
them had he made a successful section 16 application.
N N
O 4. The defendant was arraigned and he pleaded not guilty to O
murder. He did not plead guilty to a lesser or alternative offence.
P P
Q
5. After some discussion, the court indicated that it wished to Q
proceed to deal with the issue of identification. That was the matter that
R R
both parties were prepared for and in respect of which the prosecution had
S been asked to provide video evidence of the two identification parades as S
well as any available CCTV clips. This should have been available within
T T
the unused material. At this point, the court adjourned for Mr Boyton to
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draft grounds of objection and for Mr Donald to arrange witnesses and to
C
provide answers to matters raised by the court which were relevant to the C
issue of identification.
D D
6. After the adjournment, Mr Donald asked that the indictment E
E
be put again. The court refused that application and asked the prosecution
F F
to justify it. In response, Mr Donald indicated that he believed that the
G
court had come to a view adverse to the prosecution and he now wanted to G
accept the earlier offer of a plea. Technically, that offer was no longer
H H
extant and I presume a new offer had not been made in writing but that
I
there had been some discussion between counsel. I note that the I
application did not come from the defence. In refusing the application at
J J
that time, the court made it clear that the court had not “come to a view”
K but had, in its duty to its function in case management and in the interests K
of justice, identified issues of admissibility which required addressing
L L
before a jury could be empanelled. Further, there were evidential lacunae
M which suggested that the prosecution case was at best, incompetently M
investigated and prepared, or someone had been less than frank with the
N N
court. As this was a jury trial, it was for the jury to decide the guilt or
O innocence of the defendant once the prosecution case was in order and at O
that moment in time, I took the view it was not in order. Hence the
P P
suggestion by Mr Boyton that a section 16 application might be made.
Q Q
7. Given that Mr Donald was taken aback at the court’s refusal
R R
to allow the indictment to be put again (indeed he suggested that the court
S had no power to do so), the court allowed both parties to consider the S
content of any summary of facts which would form the basis of plea.
T T
Having had the benefit of an adjournment, the court can only say that the
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product of counsel’s discussions did not assist the court and was not, on
C
the face of it, sufficient to found the basis for a plea to involuntary act C
manslaughter on a joint enterprise basis given the current admissible
D D
evidence and the extent of admissions believed to be made. There being
E
no alternative, and in accordance with R v Chung Kam Fai [1993] E
1 HKC 42, but to give the parties more time to consider their position, the
F F
court adjourned to 14 October which had been the original start date for
G trial. G
H H
8. On return to court on 14 October 2019, the prosecution sought
I
to amend the indictment to add an alternative count of manslaughter and to I
amend the date, which no one had realised reflected the date of assault and
J J
not the date of death. I have not yet granted that leave to amend. Out of
K an abundance of caution, I believe all matters need to be resolved before K
any further substantive step takes place.
L L
M
9. That is because, the law of both manslaughter and of joint M
enterprise is complex. The court is afforded wide powers of sentencing
N N
ranging from a non-custodial sentence to life imprisonment. A plea entered
O on this basis must be done properly providing a clear basis upon which the O
defendant is to be sentenced. We must not also forget that the family of
P P
the deceased are also interested parties in these proceedings.
Q Q
10. A number of issues arise from this turn of events. I will start
R R
with the difficulties arising from acquiescing in Mr Donald’s application
S and allowing the indictment to be amended and a further plea taken, S
because by that stage, the court’s hands are tied. In HKSAR v Chong
T T
Chee-meng CACC 315/2007, with reference inter alia to R v Kerrigan
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(1993) 14 Cr App R (S) 179, if, after trial (and I add “or plea”) and at the
C
sentencing stage, the defence wish in any way to dispute or expand upon C
the basis of plea evidenced by the summary of facts, it is trite law that a
D D
Newton hearing should be held. If that were to happen, the court can
E
require the prosecution to establish its version of events to the correct E
criminal onus and standard of proof. As at this moment in time, on the
F F
admissible evidence I have before me, they could not do so. It may be that
G Mr Donald has been lulled into a false sense of security believing that his G
job is complete once he has obtained a plea and that any argument as to the
H H
basis of sentence is for Mr Boyton to raise and make out. That does tend
I to be the practice nowadays. It is not always the case that in a Newton I
hearing it is for the defence to raise the evidential issue on a balance of
J J
probabilities. In R v Robert John Newton (1983) 77 Cr App R 13, the Lord
K Chief Justice said that where there has been a guilty plea and there is a K
conflict between the prosecution and the defence as to the facts, the court
L L
has a choice. It can require a plea of not guilty to be entered and allow the
M jury to determine the issue; the judge may hear evidence from both parties M
and come to its own conclusion or the judge can hear submissions of
N N
counsel but if the latter course is adopted and there is substantial conflict
O between the parties, the judge must err on the side of the defence. Which O
course is to be adopted is a matter for the court subject of course to hearing
P P
both parties upon it. The judge is not bound by any agreement between
Q counsel and is entitled of her own motion to insist on a Newton hearing1 Q
(or one of the other options) if the court is concerned about the basis of
R R
plea for sentencing purposes.
S S
T T
1
R v Underwood & Ors [2005] 1 Cr App R 178
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11. The circumstances before the court today are a prime example
C
of why it is not always the case, as has become the practice, for a Newton C
hearing to be the only means by which the defence seek to dispute the basis
D D
of plea and the court can satisfy itself that it has a proper basis for that plea.
E
The issue arising here is that it is possible that the evidence which the E
prosecution could prove to the requisite standard is problematic. Is there a
F F
proper basis before the court upon which the court could find the defendant
G guilty of involuntary act manslaughter by reason of joint enterprise2? At G
present, on the evidence before the court or on the current Summary of
H H
Facts, I think not.
I I
12. If that were insufficient to provide grounds for refusal, at the
J J
moment, to allow the indictment to be put once more, I rely upon R v
K Yorkshire Water Services Ltd [1995] 16 Cr App R (S) 280 in which the K
court said that where a judge is not prepared to accept a basis of plea
L L
already entered, then a Newton hearing must be held under which the
M degree of blameworthiness of the defendant could be investigated. Let us M
for argument’s sake debate this ratio. It envisages a plea already agreed
N N
upon and tendered. The judge’s hands are tied and the only recourse is a
O Newton hearing in which the prosecution must prove its case and the O
defence have an evidential burden to raise any issue it wishes the court to
P P
take into consideration. In R v Beswick [1996] 1 Cr App R (S) 343, where
Q neither the prosecution nor the defence asked for a Newton hearing but Q
where there was a substantial conflict in the court’s eyes, the Court of
R R
Appeal stated it is quite clear that the initiative in such a matter must be
S with the judge, and he cannot proceed to try and resolve that conflict S
without the benefit of evidence. On the other hand, in HKSAR v
T T
2
R v Bryant (1980) 1 NZLR 264
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Mohammad Nadim, CACC 172/2009, Lunn J (as he then was) said a judge
C
was entitled to reject implausible or fanciful mitigation without recourse to C
a Newton hearing. It must surely follow that a judge is entitled to reject an
D D
implausible and unproven prosecution case, but on what basis? Must it go
E
to trial? Must the court consider that only after plea and a Newton hearing? E
And what if that exercise, within a Newton hearing, indicates that there is
F F
wholly insufficient evidence to form the proper legal basis of the plea?
G What then? Given the current state of the papers, this court believes that G
the proper and fair way forward, subject to hearing counsel on this, is to
H H
hear the arguments upon admissibility first. The prosecution and the court
I can then take stock of the evidence and will be in a better position to I
ascertain whether a plea should be accepted and upon what basis. There is
J J
no prejudice to either party in taking this course. I make it clear, that such
K an exercise, despite any comments I have made in the debates, is not K
intended to usurp the function of the jury. It seeks to ensure that only
L L
relevant admissible evidence is placed before the jury which is capable of
M proving the guilt of the defendant to the requisite standard and on the basis M
advanced by the prosecution, which I have to say still, at the moment, is
N N
not altogether clear on the law.
O O
13. On 9 October 2019, a new Summary of Facts, signed by
P P
prosecution counsel, was filed with the court. Within it was an admission
Q unsupported by prosecution evidence that the defendant had punched and Q
kicked the deceased after the assault by Wong Fu-shuen. Para 3 of that
R R
Summary outlines a series of events which were, as currently understood
S by the court, physically impossible to carry out if the witnesses for the S
prosecution are to be believed as to the position of the victim’s body at the
T T
relevant time. It is also unsupported by the medical evidence, which
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indicates four small abrasions to the head and just one small abrasion to
C
the back of the chest and three subcutaneous small bruises to the front and C
back of the chest, which, I might add, are consistent with falling on the
D D
table top and onto the floor but not consistent with a direct and prolonged
E
assault by a group of at least five persons one of which is said to be the E
defendant. Mr Donald maintains that matters not for it is not his own acts
F F
for which he stands trial but for the acts of Wong Fu-shuen, the man who
G actually murdered the deceased. G
H H
14. To aggravate the issue further, the prosecution witnesses and
I
the Summary of Facts suggest that the defendant left with the main I
offenders but there is no CCTV in support. Yet there is later CCTV which
J J
sees him apparently calmly leaving with someone I presume to be his
K girlfriend, if indeed it is the defendant in the CCTV clips, and I have my K
doubts. The prosecution have provided no such clips of the two main
L L
assailants as part of a group of five, which the witnesses say left the club
M together immediately after the assault. The court had asked for any such M
evidence on the last occasion and asked again today. Mr Donald had not
N N
been provided at that stage with any such CCTV footage, which I find
O surprising as the police were able to find footage of the defendant O
apparently leaving the club.
P P
Murder, manslaughter and joint enterprise Q
Q
R 15. This is the conundrum facing the court. The prosecution ask R
the court to allow the defendant to plead guilty to manslaughter in the
S S
alternative to murder on the basis of “joint enterprise unlawful involuntary
T act manslaughter”. That plea is premised upon the fact that the principal T
offender had already dealt the two killer blows to the head of the victim
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when he shouted, “Hit him to death!”, at which point in time others,
C
including the defendant who joined in at the attack at that point and C
punched and kicked the victim for two to three minutes or, as other
D D
witnesses say, 20 to 30 seconds; in any event, a very short period of time
E
and we also know with no apparent really serious bodily harm arising. The E
cause of death is accepted to be the injury to the brain caused by two blows
F F
with a bottle. Given the position of the victim at this time, wedged between
G the bench and the table with his head towards the wall and next to another G
bench, there is no medical evidence to suggest that the kicking and
H H
punching to the body of the victim occurred in the manner relied upon in
I the witness statements or in the manner relied upon in the current Summary I
of Facts. Indeed, other than the injuries to the victim’s brain, there were
J J
very few injuries to the victim and no wounds of any kind save for the cut
K to the nose caused when the first bottle was smashed over his head, which K
was before the participation of the defendant. There does not, on the papers,
L L
appear to be any grievous bodily harm resulting from the actions of the
M accessories, which in any event, all post-dated, what I will call, “the M
bottling”. In other words, there does appear to be a joint enterprise but
N N
there does not appear to be any causal link between that current joint
O enterprise and the injury which caused death, as it pre-dated the joint O
enterprise.
P P
Q 16. I think it would be helpful to start from first principles and Q
analyse joint enterprise unlawful act involuntary manslaughter as it applies
R R
to the facts of this case.
S S
17. It is trite law that there must be a coincidence of actus reus
T T
and mens rea of a crime. On an indictment for murder it must be proved
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that the defendant, by his own act or unlawful omission caused death in
C
order for him to be guilty as principal. In every result crime, such as C
murder or manslaughter, causation is an issue. This is a question of both
D D
fact and law. Joint enterprise apart, the defendant’s act cannot normally be
E
regarded as the cause of an event if the event would have occurred in the E
same way had the defendant never participated. As a starting point, it must
F F
be proved that but for the defendant’s conduct, the event would not have
G occurred3. The defendant’s conduct we know need not be the sole or the G
main cause of death so long as it significantly contributed to his death4 or
H H
was more than negligible or de minimis5 or, where the victim may already
I be dying, the act of the defendant accelerated death6. There is no issue here I
but that the bottling caused death. There can equally be no issue that the
J J
other contusions were not really serious bodily harm. They can be
K dismissed. K
L L
18. The mens rea of course is an intention to kill or cause grievous
M bodily harm i.e. really serious bodily harm. M
N N
19. All unlawful homicides, which are not murder, are
O manslaughter. This is further divided into voluntary and involuntary O
manslaughter. The distinction between them being the defendant’s intent
P P
at the time of the actus reus. It is voluntary manslaughter where the
Q defendant had the necessary intent but a mitigating circumstance has arisen Q
such as diminished responsibility. I do not believe either party here
R R
submits this is a case of voluntary manslaughter. Only where there is no
S S
3
R v White [1910] 2 KB 124, where the defendant poisoned the victim’s drink but the victim dies of
natural causes before the poison can take effect.
T 4 T
R v Warburton and Hubbersty [2006] EWCA Crim 627 (CA)
5
R v Williams [2010] EWCA Crim 2552
6
R v Dyson [1908] 2 KB 454
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intention to kill or cause grievous bodily harm, can it be said to be
C
involuntary manslaughter. I presume if the prosecution accept a plea on C
this basis they accept that the defendant did not have the necessary intent
D D
for murder or grievous bodily harm. Involuntary act manslaughter is
E
further subdivided into four: E
(i) manslaughter by unlawful and dangerous act;
F F
(ii) manslaughter by gross negligence;
G G
(iii) manslaughter by subjective recklessness; and
H H
(iv) corporate manslaughter.
I I
20. Only manslaughter by unlawful and dangerous act can be J
J
relevant to these proceedings. Any death caused whilst in the course of
K K
committing an unlawful and dangerous act is manslaughter. It requires the
L
intention to do the unlawful act even where the defendant might only have L
foreseen, if at all, a risk of some minor harm being caused. But it must
M M
cause death. It can be seen therefore that even if the defendant can be said
N to have carried out an act which falls to be one which is both unlawful and N
dangerous, the prosecution still has difficulty with the issue of causation.
O O
P
21. The defendant cannot be indicted as a principal either for P
murder or for involuntary manslaughter by reason of an unlawful and
Q Q
dangerous act.
R R
22. How then does joint enterprise assist them in making out their
S S
case? For that we must consider HKSAR v Chan Kam Shing FACC 5/2016
T
which affirmed the existing law on joint enterprise as set out in Chan Wing T
Siu v The Queen [1985] AC 168. The court in Chan Kam Shing considered
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the relationship between accessorial liability and joint enterprise. It
C
defined accessorial liability as: C
“… one who is present and, by way of actus reus, renders
D D
assistance or encouragement to the principal in the
commission of the offence 7 . The aider and abettor must
E provide active assistance or encouragement by words or E
action.”
F F
whereas it defined joint enterprise as:
G G
“The essence of the joint criminal enterprise principle involves
the accomplice’s culpability for the criminal act of another
H H
person, of a co-adventurer – not his own act – falling within
the agreed scope of the joint enterprise or foreseen as a
I possible incident thereof8.” I
J 23. To establish the accessory’s guilt, the prosecution must be J
able to prove the commission of the principal offence and the accessory’s
K K
performance of intentional acts capable of assisting or encouraging that
L offence, with knowledge of the essential facts constituting the offence and L
the intention to assist or encourage its commission9. In DPP for Northern
M M
Ireland v Maxwell [1978] 1 WLR 1350, Lord Scarman said “the guilt of an
N accessory springs, according to the court’s formulation: “… from the fact N
that he contemplates the commission of one (or more) of a number of
O O
crimes by the principal and he intentionally lends his assistance in order
P that such a crime will be committed...” The relevant words here, for the P
purposes of this case, are “contemplates the commission of one (or more)
Q Q
crimes” and “will be committed”, both presupposing a future event.
R R
S S
T 7 T
Ferguson v Weaving [1951] 1 KB 814 at 818-819; R v Stringer [2012] QB 160 at §43
8
Chan Kam Shing §40
9
Chan Kam Shing supra §15
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24. The rise of joint enterprise came about as a result of cases
C
where there was an evidential or a situational uncertainty e.g. not knowing C
which of the two defendants struck the fatal blow or where events evolved
D D
very differently from that which was envisaged by the defendant. Neither
E
of these difficulties are present in this case as it is clear on the facts who E
struck the fatal blows and at what point in time. The prosecution could
F F
have proceeded upon accessorial liability in its simplest form on that basis,
G although they would still have fallen foul of the chronology of events. G
They did not proceed, as currently outlined, on that basis.
H H
I
25. Why have the prosecution sought to proceed on a joint I
enterprise basis? Liability under the doctrine of joint enterprise is not
J J
derivative. It is not dependent upon proving that one person (the principal)
K committed the main offence and that another (the accomplice) assisted or K
encouraged its commission. Liability is independently based upon each
L L
defendant’s participation in a joint criminal enterprise with the requisite
M mental state to constitute the offence relevant to the defendant in question 10. M
But participating in a common unlawful enterprise is one in which it must
N N
be proved that a crime is “foreseen” as a possible incident of that common
O unlawful enterprise. It is forward looking. O
P P
26. It may be that the prosecution can ask the jury to infer that the
Q defendant punched and kicked the victim intending death or grievous Q
bodily harm but it still cannot prove a causal link, at present, between that
R R
act and intention, to the actual cause of the victim’s death, which pre-dated
S the common enterprise. Having embarked upon a criminal enterprise he is S
of course responsible for the acts of others in carrying out that enterprise
T T
10
Chan Kam Shing supra §33.
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A
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but he is not responsible for acts which have already been carried out and
C
before he joined the criminal enterprise. C
D D
E E
(A P Campbell-Moffat)
F F
Judge of the Court of First Instance
High Court
G G
H Mr Richard Donald and Ms Tina Mok, counsel on fiat, for HKSAR H
I Mr David Boyton, instructed by Au-Yeung, Cheng, Ho & Tin, assigned by I
the Director of Legal Aid, for the defendant
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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