Specimen Directions in Jury Trials

SPECIMEN DIRECTIONS IN JURY TRIALS

Save where the Court of Final Appeal or the Court of Appeal has so ruled, these Specimen Directions have no legal authority.

除那些已獲終審法院或上訴法庭裁定具有法律效力的部分外, 本陪審團指引並無法律效力。

Issued September 2013

SPECIMEN DIRECTIONS IN JURY TRIALS (Update Page)

February 2013 This update amends all the existing references to volumes of Archbold, Archbold Hong Kong, and Blackstone to include references to the 2013 editions of those works, except where (a) the reference remains relevant and (b) the particular volume of the work has been cited in a judgment.

February 2012 This update amends all the existing references to volumes of Archbold, Archbold Hong Kong and Blackstone to include references to the 2012 editions of those works, except where (a) the reference remains relevant and (b) the particular volume of the work has been cited in a judgment.

January 2011 This update amends all the existing references to volumes of Archbold, Archbold Hong Kong and Blackstone to include references to the 2011 editions of those works, except where (a) the reference remains relevant and (b) the particular volume of the work has been cited in a judgment. Other revisions are as follows: . A new Direction 55A: Written Material for Jurors: Directions; ‗Steps to Verdict‘ was inserted to p.55A.1 (a new subject was added to part VI of the Contents page accordingly).

December 2009 This update included modifications of all the Archbold Hong Kong references to the 2010 volume, modifications of all Archbold references to the 2010 volume except where (a) the reference no longer exists but remains relevant in context and (b) the reference is contained within a quotation, standardization of the order of the reference footnotes, some textual refinements and revisions to the following directions: . Direction 15: Recklessness/Gross Negligence – In manslaughter . Direction 27: Statement: previous inconsistent statement, witness not having been treated as hostile . Direction 37: Defendant‘s Character – Good . Direction 44A: Defendant who has given and/or called Evidence . Direction 50: Diminished Responsibility (Murder) . Direction 63A: Manslaughter by Gross Negligence . Given the number of changes, a re-issue of the Specimen Directions was done.

September 2009 This update included revisions to the following directions: . Direction 8: Joint Responsibility & Accessories (paragraph 1 of the ―Note‖ at p. 8.2 was amended) . Direction 50: Diminished Responsibility (Murder) (paragraph 4 of the ―Notes‖ at p. 50.2 & 50.3 was amended)

Issued September 2013

March 2009 This update included revisions to the following directions: . Direction 4: Irrelevant or Emotive Considerations (a note was inserted to p.4.2) . Direction 23: Corroboration – Evidence requiring caution (a new paragraph 5 was inserted to p.23.3) . Direction 55: Concluding Directions (top paragraph of p.55.3 revised)

February 2009 A minor textual amendment was made to p.17.2 of Direction 17 – Recklessness – In rape – sexual offences.

December 2008 A minor textual amendment was made to p. 40.1 of Direction 40 – Mixed Statement.

Issued September 2013

Disclaimer and Agreement for Use

1. These specimen directions are issued by the Hong Kong Judicial Institute.

2. It is important for any user of these specimen directions and of the website on which they have been posted to understand that they are intended for the use of judges as a guide only. Judges are required suitably to adapt them to the individual case.

3. The Institute does not warrant or make any representation that the specimen directions or the notes to them are free from errors or omissions. This guide is not intended to be a textbook on criminal law or procedure. Neither is it intended to be exhaustive. The duty lies upon judges, with the assistance of counsel where appropriate, to ensure that any directions given are, as a matter of law, accurate and up-to-date.

4. There will inevitably be occasions when the courts will find that certain of these specimen directions or the notes thereto are incomplete, require adjustment or even that they do not accurately represent the law.

5. These specimen directions will periodically be updated to reflect such changes in the law as come to the Institute’s attention but there will necessarily be a time lag before those changes are reflected.

6. Users of this guide and of the website upon which it is posted are responsible for making their own assessment of the information. The guide should not be used or relied upon as a substitute for independent research or independent legal advice. It is up to the users themselves to verify the accuracy of the information in this guide and to ensure that it is up to date.

7. For the reasons stated, the guide is provided and posted on the internet on the strict understanding that the Hong Kong Judicial Institute and its members and agents disclaim all liability for any claims arising, whether directly or indirectly, by reason of any person using or relying on the information in this guide.

Agreement for Use

By opening these Specimen Directions you are agreeing :

(1) that you have read this disclaimer and agree with the terms and conditions of use of this guide; and

(2) that you may use the guide or any information in it personally for legal professional practice but you will not use the same for any commercial publication or activity.

Hong Kong Judicial Institute

Issued September 2013

Contents (Click on the subject matter to go to the specimen direction)

Page Foreword

Specimen Directions

I. GENERAL

1. Functions of Judge and Jury ...... 1.1–1.2 2. Burden and Standard of Proof ...... 2.1–2.2 2A. Reverse Onus and Evidential Burden ...... 2A.1–2A.3 3. Separate Treatment...... 3.1–3.2 4. Irrelevant or Emotive Considerations ...... 4.1–4.2 5. Alternative Offences ...... 5.1–5.2 5A. Specimen or Sample Counts ...... 5A.1 6. Child Defendant, Criminal Responsibility ...... 6.1–6.2 7. Fitness to Plead and Stand Trial ...... 7.1–7.2 8. Joint Responsibility & Accessories ...... 8.1–8.13 9. Assisting Offenders pursuant to section 90, ...... 9.1 Criminal Procedure Ordinance, Cap. 221 10. Plea of Guilty/Conviction of one defendant, ...... 10.1–10.2 effect on defendant on trial 11. Attempts...... 11.1–11.2 12. Conspiracy ...... 12.1–12.6

II. INTENTION, RECKLESSNESS AND CAUSATION

13. Intention...... 13.1–13.2 14. Intent/Intention – The relevance of drink/drugs ...... 14.1–14.2 15. Recklessness/Gross Negligence – In manslaughter ...... 15.1–15.3 16. Recklessness and Maliciously – In assault/offences against ...... 16.1–16.4 The Person Ordinance, Cap.212 (Sections 17 and 19) 17. Recklessness – In rape – sexual offences...... 17.1–17.4 18. Recklessness – In criminal damage and arson ...... 18.1–18.3 Crimes Ordinance, Cap. 200, Section 60(1) and (2) 19. Recklessness – Driving ...... 19.1 20. Causation...... 20.1–20.3

1 Issued September 2013

III EVIDENCE

21. Circumstantial or inferential evidence ...... 21.1–21.4 22. Similar Facts ...... 22.1–22.7 23. Corroboration / Evidence requiring caution ...... 23.1–23.3 24. Evidence of children ...... 24.1–24.3 24A. Directions when evidence is given by an adult or child witness ...... 24A.1 behind a screen / by video recording / live video link 25. Cross-examination about ‗evidence on a previous occasion‘ ...... 25.1 26. Hostile witness ...... 26.1–26.2 27. Statement: previous inconsistent statement ...... 27.1–27.2 witness not having been treated as hostile 28. Visual identification ...... 28.1–28.3 28A. Identification by voice ...... 28A.1 28B. Identification by DNA ...... 28B.1 29. Delay ...... 29.1–29.3 30. Sexual offence: recent complaint and distress ...... 30.1–30.3 31. Statement to police by co-defendant, ...... 31.1–31.2 not evidence against defendant 31A. Statement to police by co-defendant – ...... 31A.1 may be evidence to be considered in favour of defendant 32. Expert evidence ...... 32.1–32.3 33. Dishonesty and the ‗Ghosh‘ direction ...... 33.1–33.2 34. Section 65 statements ...... 34.1 35. Hearsay evidence admitted under ...... 35.1–35.2 sections 70, 73 and 77F of the Evidence Ordinance 36. Drugs – money found in possession of ...... 36.1–36.2 defendant / Evidence of extravagant lifestyle, etc.

IV THE DEFENDANT

37. Defendant‘s character – good...... 37.1–37.5 38. Defendant‘s character – bad ...... 38.1–38.3 39. Defendant‘s confession ...... 39.1–39.3 40. Defendant‘s mixed statement ...... 40.1–40.2 41. Defendant‘s evidence - effect on other defendants ...... 41.1–41.3 42. Defendant‘s lies (outside court or in the course of trial) ...... 42.1–42.5 43. Defendant‘s flight (after crime or on bail) ...... 43.1 44. Defendant who has not given evidence ...... 44.1–44.2

2 Issued September 2013

44A. Defendant who has given and/or called evidence ...... 44A.1–44A.2 45. Defendant‘s right to silence ...... 45.1–45.2

V DEFENCES

46. Alibi...... 46.1 47. Automatism ...... 47.1–47.2 48. Self Defence ...... 48.1–48.4 49. Duress By Threats Or Circumstances...... 49.1–49.4 50. Diminished Responsibility (Murder) ...... 50.1–50.5 51. Provocation (Murder)...... 51.1–51.7 52. Intoxication – Self-induced or Voluntary ...... 52.1–52.3 53. Sexual Offences–consent in ―domestic circumstances‖ ...... 53.1–53.2 54. Defence available but not raised ...... 54.1

VI VERDICT/JURY MANAGEMENT

55. Concluding Directions ...... 55.1–55.6 55A. Written material for jurors: Directions; ‗Steps to Verdict‘ ...... 55A.1 56. Verdicts on alternative counts ...... 56.1-56.2 57. OMITTED 58. Overnight retirement ...... 58.1

VII SPECIFIC OFFENCES

59. Arson with intent to endanger life [Count 1]; and ...... 59.1–59.4 Arson being reckless [Count 2] 60. Blackmail ...... 60.1–60.2 61. Dangerous Drugs… trafficking in dangerous drug ...... 61.1–61.5 … ‗shut eye‘, or constructive knowledge … the Alternative Verdict : Simple Possession … manufacture of a dangerous drug 62. Kidnapping ...... 62.1–62.2 63. Manslaughter – by a dangerous and unlawful act ...... 63.1–63.2 63A. Manslaughter by gross negligence ...... 63A.1 64. Murder...... 64.1–64.2 65. Rape...... 65.1–65.2

3 Issued September 2013

FOREWORD

This is a revision of the set of directions issued by the Judicial Studies Board in 2012. Following the dissolution of the Judicial Studies Board the responsibility for issuing and revising the Specimen Directions falls to the Judicial Institute.

The primary responsibility of a trial judge in a criminal trial is to ensure a fair trial. To that end the summing-up must be tailored appropriately to the particular circumstances obtaining in each different case. The benchmark by which a summing-up is to be judged was described by Lord Mackay of Clashfern in his speech in Regina v Adomoko [1995] 1 AC 171 at 189 D-F as being :

―I believe that the supreme test that should be satisfied in such directions is that they are comprehensible to an ordinary member of the public who is called to sit on a jury and who has no particular prior acquaintance with the law. To make it obligatory on trial judges to give directions in law which are so elaborate that ordinary members of the jury will have great difficulty in following them, and even greater difficulty in retaining them in his memory for the purpose of application in the jury room, is no service to the cause of justice.‖

Subject to any indications to the contrary by the appellate courts, no particular form of words is required and a judge is free to depart from the suggested directions, provided that the directions are in accordance with the law. Above all, judges are enjoined to avoid converting these specimen directions into a series of formulae to be incanted whether or not they are appropriate to the unique facts and circumstances of each particular case.

Hong Kong Judicial Institute

September 2013

Issued September 2013 1.1

I GENERAL 緒論

1. FUNCTIONS OF JUDGE AND JURY 法官和陪審團的職能

Our functions in this trial – that is, my function as judge and your function as jury – have been and remain quite different. Throughout this trial the law has been my area of responsibility, and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.

It is also my function to remind you of the prominent features of the evidence. However, it has always been your responsibility to judge the evidence and decide all the relevant facts of this case. You and you alone must decide what evidence you accept, what evidence you do not accept and what evidence you are not sure about; and when you come to consider your verdict, you and you alone, must do that.

You do not have to decide every point which has been raised; only such matters as will enable you to say whether the charge laid against the defendant has been proved. You will do that by having regard to the whole of the evidence [including the agreed/admitted evidence] and forming your own judgment about the witnesses, and which evidence is reliable and which is not. The evidence consisted of the oral testimony of witnesses [both prosecution and defence] who were called to the witness box [and the agreed statement of facts][and the witness statements that were read to you].

[Add something along the following lines, if you believe it may be of assistance in the particular case: You have sworn an oath or affirmed that you will deliver a true verdict according to the evidence. Therefore you must decide this case only on the evidence which has been placed before you. There will be no more. You must not speculate about what evidence there might have been, or allow yourselves to be drawn into speculation.]3

The facts of this case are your responsibility. You will wish to take account of the arguments in the speeches you have heard, but you are not bound to accept them. Equally, if in the course of my review of the evidence, I appear to express my views concerning the facts, or emphasise a particular aspect of the evidence, do not adopt those views unless you agree with them; and if I do not mention something which you think is important, you should have regard to it in any event, and give it such weight as you think fit. When it comes to the facts of this case, it is your judgment alone that counts.

作為審訊中的法官和陪審團，我們的職能由開始並且一直都是很不相同。本席負責處理整宗審訊中的與法律有關的事宜，而現在便必須就適用於本案的法律向你們作出指示，你們必須接納和依循這些指示。

本席的另一項職能是向你們指出證供中必須特別注意的地方；不過，判斷證供和就所有與案有關的事實作決定一直都是你們的責任。你們必須決定哪些證供是應予接納和不應接納的，以及哪些證

Issued September 2013 1.2

供是你們所不能確定的，只有你們才能作出這些決定。你們亦必須考慮作出甚麼裁決，因為只有你們才能作出裁決。

你們無須考慮在本案中被提出的每一項論點，只須考慮那些使你們能夠決定被告人的控罪是否成立的事宜。你們在作出決定前必須考慮所有證據 [ 包括已被同意／接納的證據 ] ，以及判斷證人是否可信，哪些證供可以信賴和哪些証供不可以信賴。證據包括被傳召出庭的[ 控辯雙方] 的證人的口頭證供，[ 以及經同意的事實陳述書] ， [ 以及已向你宣讀的證人陳述書] 。

如果相信對有關的案件有幫助的話，可以在指示中加入類似以下內容：你們曾作出宗教式或非宗教式宣誓，表明會根據證據作出真實的裁決。因此，你們只能根據在你們面前提出的證據，而不能根據任何其他東西來判案。你們不得猜測可能還有哪些證據，或容許自己妄作猜測。

你們的責任是就本案的事實作出決定。你們可以考慮大律師在陳詞時所提出的論據，但不一定予以接納。同樣地，如果本席在檢討證據期間就案件事實發表某些個人意見，或特別強調某方面證據，但你們卻並不認同時，可以不予接納。如果本席沒有提到一些你們認為重要的事情，你們照樣可以把那些事情列入考慮，按你們認為是否適當而給予比重。在本案的事實方面，只有你們才能作出判斷。

Notes :

1) It is important to remember that the above directions concerning the functions of judge and jury are for reference only. Each case is obviously different and may well require a different emphasis to be placed on different aspects of the directions or even additions to them. 2) If, as rarely but sometimes happens, evidence is misrepresented in a closing speech, it should be corrected in the summing up.

3) On speculation, see also Circumstantial Evidence, Direction 21.

Archbold Hong Kong (2013) 4-190 Archbold (2013) 4-438 Blackstone (2013) D 18.26

Issued September 2013 2.1

2. BURDEN AND STANDARD OF PROOF 舉證責任和舉證準則

Burden of Proof :

In this case the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.

舉證責任：

在本案中，控方必須證明被告人有罪，而被告人卻無須證明自己無罪。在刑事審訊中，證明被告人有罪的責任歸於控方。

Standard of Proof :

How does the prosecution succeed in proving the defendant‘s guilt? The answer is – by making you sure of it. [But see note 1] Nothing less than that will do. If after considering all the evidence you are sure that the defendant is guilty, you must return a verdict of ―Guilty‖. If you are not sure, your verdict must be ―Not Guilty‖.

舉證準則：

控方怎樣才能夠證明被告人有罪？答案是使你們肯定他有罪，控方必須符合這項準則。如果你們在考慮所有證據後肯定被告人有罪，便必須作出‚罪名成立‛的裁決；如果你們不肯定的話，便必須作出‚罪名不成立‛的裁決。

Notes :

1) Normally, when directing a jury on the standard of proof it is not necessary to use the phrase ‗beyond reasonable doubt‘. But when it has been used in the trial, e.g. by counsel in their speeches, it is necessary to give the following direction: ‗The prosecution must make you sure of guilt, which is the same as proving the case beyond reasonable doubt.‘ See R v Adey [1998] EWCA Crim 781, where the Court of Appeal in England cautioned against any attempt at a more elaborate definition of ―being sure‖ or ―beyond reasonable doubt‖. Similarly in R v Stephens (2002) The Times 27 June the Court of Appeal said it was unhelpful to distinguish between being ―sure‖ and ―certain‖. See also R v LEE Yuk Wah [1985] HKLR 193 and HKSAR v Wong Hiu Shui, CACC 598 of 2002.

2) When in the body of the summing up the judge deals with the defence/defences which has/have been put forward in a case, whether put forward in cross-examination or in evidence by the defendant or by witnesses on his behalf, the jury should be reminded that it is not for the defendant to prove that defence (where that is so) and there should be added to that reminder, in respect of each defence canvassed in the summing up, a statement that if the defence thus put forward is or may be correct, then the defendant is entitled to be acquitted :

Issued September 2013 2.2

The defence put forward in this case/in this regard is that (e.g. the defendant acted in lawful self defence). It is not for the defendant to prove that (he acted in lawful self defence). On the contrary, it is for the prosecution to prove that (he did not). Of course, if the account [given by the defendant/put forward by the defence] is true, then he must be acquitted, but he must also be acquitted if that account may be true.

辯方在本案中／在這方面所提出的辯護是（例如 : 被告人的行為出於合法自衛）。被告人無須證明自己（的行為出於合法自衛），反而控方必須證明（被告人並非出於自衛）。當然，如果 [ 被告人／辯方所提出的] 說法屬實，你們便必須判他無罪；但是，即使該項說法只是可能屬實，你們也必須判他無罪。

In this regard see Sze Kwan Lung & others v HKSAR (2004) 7 HKCFAR 475 and Law Chung Ki v HKSAR (2005) 8 HKCFAR 701. It is clear from these decisions that it is objectionable to direct a jury that it must act only upon evidence that it finds to be true. That is because evidence favourable to the defence that may be true must also be acted upon, and that is a point that must always be made to a jury. The message that has always to be imparted is that even if the jury does not positively believe the evidence for the defence, they cannot find an issue against the defendant contrary to that evidence if that evidence gives rise to a reasonable doubt about that issue: Liberato & others v R (1985) 159 CLR 507, 515, referred to in both Court of Final Appeal decisions.

See also Direction 44A.

Archbold Hong Kong (2013) 4-195 Archbold (2013) 4-444 Blackstone (2013) D18.27; F3.1 Bruce, Criminal Procedure: Trial on Indictment Vol. 1, Div. VI para. 1101

Issued September 2013 2A.1

2A. REVERSE ONUS AND EVIDENTIAL BURDEN 顛倒責任和證據責任

Reverse onus

A reverse onus arises where the law places an onus on a defendant to prove any matter or fact relevant to the offence : see Mason NPJ in HKSAR v Lam Kwong Wai and another (2006) HKCFAR 574 at 594. A distinction is drawn between, on the one hand, the ―legal‖ or ―persuasive‖ burden of proof and, on the other, the ―evidential‖ burden. The distinction is important for the purpose of any summing up. A persuasive burden requires an accused to prove that it is more likely than not that his version of a fact in issue is true, whereas an evidential burden requires only ―... that the accused must adduce sufficient evidence to raise an issue before it has to be determined as one of the facts in the case.‖ The prosecution does not need to lead any evidence about it, so the accused needs to do this if he wishes to put the point in issue. But if it is put in issue, the burden of proof remains with the prosecution. See R v DPP ex p Kebilene & Others [2002] 2 AC 326 at 378H-379A, cited by Mason NPJ in Lam Kwong Wai above at 594J-595A. See also Archbold Hong Kong (2012) 4-192 to 4-196.

If an issue arises on which the defence bears the burden of proof, that is to say, the persuasive burden, because, for example, of a statutory provision, then in the body of the summing up when he deals with that issue, the judge should provide a direction such as the following :

If the prosecution has not made you sure that the defendant has (state generally what the prosecution must prove), that is an end of the matter and you must find the defendant ―Not Guilty‖. However, if and only if, you are sure of those matters, you must consider whether the defendant [e.g. had a reasonable excuse etc. for doing what he did]. The law is that that is a matter for him to prove on all the evidence; but whenever the law requires a defendant to prove something, he does not have to make you sure of it. He has to show that it is probable, which means more likely than not, that [e.g. he had a reasonable excuse etc. for doing it]. If you decide that probably he did [e.g. have a reasonable excuse etc. for doing it], you must find him 'Not Guilty'. If you decide that he did not, then providing that the prosecution has made you sure of what it has to prove, you must find him ―Guilty‖.

如果控方未能使你們肯定被告人曾 [ … 概述控方所須證明的事情 ] ，你們便無須多作考慮而必須裁定被告人‚罪名不成立‛。反過來說，如果你們肯定有關的事情，並且只有在這種情況下，你們便必須考慮被告人究竟 [ 例如: 能否就他的行為提出合理辯解等] 。法律的原則是被告人須根據所有證據提出證明他的合理辯解，但當法律規定被告人須向你們證明某些事情時，他無須使你們肯定他所說的話屬實，只須證明他所說的話較有可能屬實，即他較有可能 [ 在有合理辯解等的情況下作出有關的行為] 。如果你們斷定他較有可能 [ 例如: 在有合理辯解等的情況下作出有關的行為 ] ，便必須裁定他‚罪名不成立‛。如果你們斷定他沒有合理辯解，而控方又使你們肯定控方所須證明的事情屬實，便必須裁定他‚罪名成立‛。

Issued September 2013 2A.2

Archbold Hong Kong (2013) 4-196 Archbold (2013) 4-448 Blackstone (2013) F3.47, F3.53

Evidential Burden

Where the burden that is imposed on a defendant is merely an evidential burden, the practical approach is that commonly used in cases of provocation or self-defence and the following points, noted at paragraph 144 of Hung Chan Wa and Another v HKSAR [2005] 3 HKLRD 291, should be noted :

(1) it is for the judge to determine whether sufficient evidence has been adduced to constitute an issue to be left to the jury;

(2) the burden may be discharged regardless of the quarter from which the evidence derives. In other words, the evidence upon which the accused may rely in this regard may emanate from the prosecution or in the testimony produced by the accused;

(3) as said by Lord Hope in R v Lambert [2002] AC 545, at 588 :

―... an evidential burden is not to be thought of as a burden which is illusory. What the accused must do is put evidence before the court which, if believed, could be taken by a reasonable jury to support his defence.‖; and

(4) judges should avoid giving directions as to what does and what does not constitute an evidential burden and whether or not such a burden has been discharged. By the time of the summing up, the issues will have crystallised and the judge himself should by then have determined, if necessary after discussion with counsel, whether sufficient evidence as to the point in contention has been adduced to raise an issue to be left to the jury.

―An evidential burden stands in contrast to a reverse persuasive burden. It does not require the accused to establish anything as a matter of proof. An evidential burden arises where the defendant wishes to put in issue some matter that is potentially exculpatory while the prosecution continues to bear the persuasive burden throughout. In such cases, there must be evidence supporting such exculpatory matter which is sufficiently substantial that it raises a reasonable doubt as to the defendant‘s guilt. Unless such reasonable doubt is removed, the prosecution fails to prove its case. If, on the other hand, the accused fails to adduce or point to any evidence on the relevant issue or if the evidence adduced is rejected or is not sufficiently substantial to raise a reasonable doubt, the potentially exculpatory matter places no obstacle in the way of the prosecution proving its case beyond reasonable doubt. An evidential burden, functioning in this manner, is wholly consistent with the

Issued September 2013 2A.3

presumption of innocence.‖ : see HKSAR v Ng Po On, FACC6/2007 per Ribeiro PJ.

Archbold Hong Kong (2013) 4-194 Archbold (2013) 4-446 Blackstone (2013) F3.3

Issued September 2013 3.1

3. SEPARATE TREATMENT 分別處理

Two or more defendants and one count

You must consider the case against and for each defendant separately. [The evidence concerning each defendant is different and therefore your verdicts need not be the same.]

兩名或更多被告人及一項控罪

你們必須分別考慮對每一名被告人不利和有利的情況。[ 有關每一名被告人的證據都不相同，因此，你們就每一名被告人所作出的裁決也無須相同。]

One defendant and two or more counts

You must consider the case against and for the defendant on each count separately. [The evidence concerning each count is different and therefore your verdicts need not be the same.]

一名被告人及兩項或更多控罪

你們必須就每一項控罪分別考慮對被告人不利和有利的情況。[ 有關每一項控罪的證據都不相同，因此，你們就每一項控罪所作出的裁決也無須相同。]

Two or more defendants and two or more counts

You must consider each count separately and the case against and for each defendant separately on each count. [The evidence concerning each count and each defendant is different and therefore your verdicts need not be the same.]

兩名或更多被告人及兩項或更多控罪

你們必須分別考慮每一項控罪，並就每一項控罪分別考慮對每一名被告人不利和有利的情況。[ 有關每一項控罪和每一名被告人的證據都不相同，因此，你們就每一項控罪和每一名被告人所作出的裁決也無須相同。]

Notes:

1. Illustrate from the indictment, and deal with the necessity to consider the counts and defendants separately both in the directions on the law and, when appropriate, in the summing up of the evidence.

Issued September 2013 3.2

2. In some circumstances it may be desirable for the jury to consider the evidence against one defendant on all the counts first, in which case the direction should be adjusted accordingly, always stressing that the evidence on each count must be considered separately. For an example, see Note 2 at Direction 31.

3. There may be cases, where, on the facts, if the jury finds a defendant guilty, or not guilty, on one count, it would be difficult for them to come to a different conclusion on another count. If so, direct the jury accordingly. It will more often be appropriate, in telling the jury to consider each count and/or each defendant separately, to emphasise that if they were to conclude that a defendant was guilty or not guilty on one count, it did not necessarily follow that he was similarly guilty or not guilty on the other; and so, too, with separate defendants.

4. For a direction where a co-defendant has pleaded guilty, see Direction 10.

5. In some cases it may be appropriate to tell the jury that their important obligation to consider each count separately on its merits does not mean that there is not evidence common to all counts or a number of counts. There may well be evidence which will assist them in reaching a verdict on separate counts.

6. In a case involving a number of counts it could be (depending on the circumstances) that the jury‘s decision on the facts of one count might well assist them in coming to a conclusion on another/other counts. In an appropriate case, they should be directed accordingly, adding that nevertheless, they must reach separate verdicts on each count having focused on each separately and having formed a separate decision about it.

Archbold Hong Kong (2013) 4-190C Archbold (2013) 4-441 Blackstone (2013) D18.28 Bruce, Criminal Procedure: Trial on Indictment Vol. 1 Div. VI para. 1102

Issued September 2013 4.1

4. IRRELEVANT / EMOTIVE CONSIDERATIONS 非相關的／受感情影響的考慮因素

In some cases it will be necessary for judges to address emotive but irrelevant comments or prejudicial publicity; or the very nature of the charge may require an appropriate warning. What, if anything, is said depends, of course, on the circumstances which have arisen. The following are but examples:

Prejudicial publicity

Do not be sidetracked in your task by irrelevancies. Your task is to reach a verdict according to the evidence, not according to newspaper or media reports. The [kidnapping of Mr. X] gave rise to considerable publicity, both at the time of the [kidnapping] and recently in the reporting of this case. But you do not decide the case on publicity, for publicity is not evidence. Your task is to decide whether it is proved that [this man was party to the kidnapping] on the evidence presented to you in this trial, and you must ignore any newspaper or media report you have seen or heard.

See R v Bowditch [1991] Crim LR 831, CA (Eng).

帶有偏見的報導

不要被非相關的事情影響。你們的工作是根據證據作出裁決，並非根據報章或傳媒的報導。[ X 先生被綁架] 一案在剛發生時和近來傳媒作出報導時都引起公眾廣泛關注，但你們不是根據傳媒的報導來判案，因為那些報導並非證據。你們的工作是根據控辯雙方在這宗審訊中向你們所提出的證據來決定控方是否已證明[ 這個人有份參與綁架] ，你們不得理會曾看過或聽過的報章或傳媒的報導。

A shorter example of a direction which could be given where there has been some though not extensive publicity in the press concerning the case is:

If there has been anything in the newspapers, or magazines, or on the television about this case, or on the radio, disregard it. Your task is to reach a verdict according to the evidence presented to you in this court room not according to newspaper or media reports.

如果在報章、雜誌、電視或電台中有任何關於本案的報導，請不必理會。你們的工作是根據控辯雙方在這個法庭內向你們提出的證據作出裁決，而不是根據報章或傳媒的報導。

Emotive considerations

Equally on occasion it may be wise specifically to direct the jury to ignore any sympathy they may feel for a victim or anger or dislike generated by the nature of the offence and remind them that they are to base their verdict on an objective appraisal of the evidence. An example of such a direction is:

Issued September 2013 4.2

Some of you may feel [considerable sympathy for (the victim)][angered by the crime of kidnapping]. But you are not in any way to base your findings of fact or your verdict upon any emotional reaction to the evidence in this case. You are to base your findings of fact and your verdict on an objective appraisal of the evidence.

受感情影響的考慮因素

你們當中有人可能會[ 對（受害人）深表同情][對綁架罪行感到憤慨 ] ；不過，你們在作出事實的裁斷或裁決時絕對不能根據你們對本案證據的情緒反應，而是根據你們對本案證據的客觀評估。

Sentence

Do not mention sentence at all unless it is necessary to do so as a result of counsel‘s speech suggesting that if the jury were to convict the defendant he would be sentenced to a substantial prison sentence. In that case an example of what could be said is as follows:

You should ignore what counsel said to you about any sentence which may be imposed upon the defendant if you were to convict him. In the event of conviction sentence is a matter for me, not for you. Thoughts about what may happen to the defendant if you were to convict him do not assist you in your task of deciding whether or not he is guilty or not guilty of the offence with which he is charged. So put any such thoughts out of your mind and simply concentrate on the evidence.

判刑

關於大律師對你們所說的被告人一旦被定罪後將會被判的刑罰，你們不應理會。定罪後的判刑由本席負責，與你們無關。你們無須考慮被告人一旦被定罪後會有甚麼後果，因為這對你們決定被告人的控罪是否成立並無幫助。因此，你們無須考慮上述問題，只須專注於證據方面。

Note: Where a jury has been told or has learnt that the trial is a retrial, see Chan Ka Man v HKSAR FACC 9/2007 at paragraphs 9, 15 to 19.

Archbold Hong Kong (2013) 4-44 Archbold (2013) 4-85 See also R v Abu Hamza (2007) 1 Cr.App.R. 27 at para. 98

Issued September 2013 5.1

5. ALTERNATIVE OFFENCES 交替罪行

More than one count: a primary and a lesser offence

Counts 1 and 2 are alternative counts. You cannot find the defendant guilty on both. First consider count 1, [which is the more serious one]* involving (set out allegation briefly). If you find the defendant guilty on that count, do not consider count 2 at all. But if you are not sure that the defendant is guilty on count 1, then you will find him not guilty of that count and go on to consider count 2 [which involves etc].

* Where the alternative offences do not fall easily into a category of a primary and a lesser offence, then the direction should be adjusted accordingly.

超過一項控罪：一項主要罪行及一項較輕微的罪行

第 1 和第 2 項控罪是交替罪，你們不可以裁定被告人兩項罪名均成立，請首先考慮第 1 項控罪 [ 即較嚴重的一項 ] ，這項控罪涉及（概述有關的指稱）。如果你們裁定被告人這項控罪成立，便完全無須考慮第 2 項控罪，但如果你們不肯定被告人的第 1 項控罪是否成立的話，便須裁定他的第一項控罪不成立，並繼而考慮第 2 項控罪 [ 概述有關的指稱] 。

A lesser offence within one count: pursuant to section 51(2) of the Criminal Procedure Ordinance

Sometimes an allegation of one offence necessarily includes an allegation of a lesser offence. In such circumstances, the law provides that if a jury finds the defendant not guilty of the offence specifically charged in the indictment, they may find him guilty of the alternative, lesser, offence even though the lesser offence is not specified in a separate charge or count. In this case, you will see that [in relation to count 1] the defendant is charged with (e.g. trafficking in dangerous drugs). It is an offence to [e.g. be in possession of drugs for the purpose of trafficking] but it is also an offence merely to [e.g. be in possession of a dangerous drug]. If you are sure that the defendant [e.g. was in possession of a dangerous drug] but you are not sure that he [e.g. had possession of them for the purpose of trafficking], you will find the defendant not guilty of [e.g. trafficking in dangerous drugs] but guilty of the lesser charge of [e.g. possession of dangerous drugs].

一項控罪裡面的較輕微的罪行：依據《刑事訴訟程序條例》第 5 1 ( 2 ) 條

有時一項控罪的指稱會包括一項較輕微罪行的指稱，在此情況下，法律規定就算陪審團裁斷被告人沒有干犯公訴書中所指明的罪行，仍可以裁定他干犯了一項較輕微的交替罪行，即使這項罪行並沒載於另一項控罪或罪名中。在本案中，你們會看到[ 就第一項控罪來說] 被告人被控（例如 : 販運危險藥物）。 [ 例如: 管有危險藥物作非法販運用途] 是一項罪行，但只是 [ 例如: 管有危險藥物] 也是一

Issued September 2013 5.2

項罪行。如果你們肯定被告人 [ 管有危險藥物] ，但卻不肯定他是否 [ 管有那些藥物作非法販運用途 ] ，你們便須裁定被告人 [ 販運危險藥物] 的罪名不成立，但 [ 管有危險藥物 ] 這項較輕微的罪名則成立。

Note:

Where the provisions of section 51(2) of the Criminal Procedure Ordinance apply, the judge should, at least before closing speeches, canvass with counsel whether the possible lesser alternative should or should not be left for the jury‘s consideration. Generally however it is wise to raise this matter with counsel as early as possible.

Criminal Procedure Ordinance section 51(2) Archbold Hong Kong (2013) 4-263 to 269 Archbold (2013) 4-524 to 533 Blackstone (2013) D19.58 to 64 Bruce, Criminal Procedure: Trial on Indictment Vol. 1 Div. VI para. 1103

Issued September 2013 5A.1

5A. SPECIMEN OR SAMPLE COUNTS

A. Where the specimen is a separately identifiable offence (see Note 1).

Count… is a specimen Count. The prosecution allege that D also committed [numerous/state number] other offences of the same kind. Instead of loading up the Indictment with Counts charging many offences, they have selected one as an example, as they are entitled to do. However, you may convict D only if you are sure that he committed the particular offence charged in the Count…, whether or not you are sure that he also committed other such offences.

B. When the specimen is not a separately identifiable offence (see Note 2)

Count… is a specimen Count. The prosecution allege that, during the period referred to in that Count, D committed [numerous/state number] other offences of the same kind. Instead of loading up the Indictment with Counts charging many offences, they have selected one as an example, as they are entitled to do. To convict D you must be sure that he committed one such offence during the period concerned, whether or not you are sure that he also committed other such offences.

Notes

1. An example would be a Count of obtaining by deception from the Social Welfare Department a specific sum of money on a specific day, evidence being adduced of a pattern of other such offences.

2. An example would be a Count of indecent assault on a child who claims to have been abused in the same way on many occasions, but cannot say precisely when or how often.

3. These directions will, of course, need adapting when there is more than one specimen Count.

Archbold Hong Kong (2013) 1-116 to 118 Archbold (2013) 1-207 to 212 Blackstone (2013) D11.37 to 40

Issued September 2013 6.1

6. CHILD DEFENDANT, CRIMINAL RESPONSIBILITY 兒童被告人的刑事責任

You are trying a child of [12]. The law is that a child of that age cannot be guilty of a criminal offence unless at the time of the alleged offence he knew that what he was doing was seriously wrong.

Even if you are sure that he did the acts alleged and that he did them with the intention of [state mens rea of the offence, e.g. the intention of killing or causing serious bodily harm] you must not convict him unless you are also sure that he knew that what he was doing was seriously wrong. A ‗seriously wrong‘ act is one to be distinguished from an act of mere naughtiness or childish mischief.

The mere fact that the defendant did the act charged, or the mere fact that you think that the act was an obviously wrong [or even horrifying] thing to do, does not of itself entitle you to conclude that this defendant must have known that the act was seriously wrong. Similarly, even if you were to decide that any normal youth of the defendant‘s age would know the act to be seriously wrong, that does not necessarily mean that this defendant knew that. The question is whether this defendant knew the act to be seriously wrong. When you decide that question you do so upon the evidence4 concerning this defendant‘s ability to distinguish right from wrong. You examine that evidence in the context of the evidence of what the defendant in fact did, and all the surrounding circumstances, which include what the defendant said and what he did before and after the act. Now, if in the light of that evidence, you are sure that the defendant knew that what he was doing was seriously wrong, then you will convict him.

在你們面前受審的是一名 [ 1 2 ] 歲的兒童；法律假定這個年紀的兒童是不可能干犯刑事罪行，除非他在作出指稱的罪行時知道那是嚴重錯誤的行為。

即使你們肯定他一如所稱的作出有關的行為，而且意圖[ 說明干犯有關罪行的犯罪意圖，例如：意圖殺人或導致他人身體受到嚴重傷害 ]，你們也必須肯定他知道自己的行為嚴重錯誤才可以把他定罪。你們必須區別甚麼是 ― 嚴重錯誤‖ 的行為，甚麼是純粹淘氣或幼稚搗蛋的行為。

即使被告人確曾作出控罪中所稱的行為或你們認為有關的行為明顯錯誤[ 或甚至令人震驚 ] ，你們也不能單憑上述理由便斷定這名被告人必定知道他的行為是嚴重錯誤的。同樣地，即使你們斷定任何跟被告人年紀相若的正常青少年都會知道有關的行為是嚴重錯誤的，這也不一定意味著這名被告人也知道。你們須處理的問題是：這名被告人是否知道有關的行為是嚴重錯誤的？在決定答案時，你們須以那些反映這名被告人分辨是非的能力的證據作為依據，並須一併考慮關於被告人事實上曾作出哪些行為的證據，以及考慮所有周遭情況，包括他在有關的行為發生之前和之後的言行。如果你們在考慮過上述證據後，肯定被告人知道他的行為是嚴重錯誤的，便可以把他定罪。

Issued September 2013 6.2

Notes:

1. A child under the age of 10 is in law incapable of committing a crime. Over the age of 14 he is fully responsible for his actions. A child between those ages is presumed not to be capable of criminal behaviour and not to know the difference between right and wrong unless and until that presumption is rebutted by the prosecution.

2. Where a specific intent or state of mind is an ingredient of the offence, an appropriate direction must be given in addition to the above.

See C (A Minor) v DPP [1996] 1 A.C. 1, HL; CC (A Minor) v DPP [1996] 1 Cr App R 375 and the general guidance given in S (A Minor) February 1996 CA 94/7189/W2 and L and Others v DPP [1996] 2 Cr App R 501. In W (A Minor) v DPP [1996] Crim LR 320, the Divisional Court in England said that courts must be alive to the trap of applying the presumption of normality. See also L and B v DPP [1998] 2 Cr App R 69.

3. In a prosecution of this sort there must be some independent evidence (apart from the evidence of the crime itself) which allows the jury to determine the question of whether the defendant knew what he was doing was seriously wrong.

4. The relevant evidence should be summarised in an appropriate part of the summing up.

Juvenile Offenders Ordinance (Cap. 226) section 3 Archbold Hong Kong (2013) 20-321; 1-75 to 76; 20-9 Archbold (2013) 1-159 (which sets out the position in England prior to September 30 1998 when the Crime and Disorder Act 1998 abolished the rebuttable presumption that a child aged 10 but under 14 is incapable of committing an offence) Blackstone (2013) A3.71 to 72 Bruce & McCoy, Criminal Evidence in Hong Kong II [402]

Issued September 2013 7.1

7. FITNESS TO PLEAD AND STAND TRIAL 是否適宜答辯和受審

The only question for you to decide is whether this defendant is under such a disability of mind that he is not fit to be tried on this indictment.

As it is the prosecution who assert that he is under such a disability, it is for the prosecution to prove that he is not fit to be tried and they must prove it so that you are sure of it.

Alternatively: As it is the defence who assert that he is under such a disability, it is for the defence to prove that he is not fit to be tried. They need only prove this on the balance of probabilities. This means that the defence must show that it is more likely than not that he is unfit to stand trial.

The test which you must apply is this: Is the defendant capable of understanding [his trial/these proceedings] so that he can:

1. Put forward any proper defence he might have; and

2. Challenge a juror to whom he might have cause to object; and

3. Give instructions to his lawyers. This means that he must be capable of telling his lawyers what his case is and whether he agrees or disagrees with what the witnesses have to say; and

4. Follow the evidence?

If the defendant can do all of these things you must find that he is fit to be tried. If [you are sure] [you find on the balance of probabilities] that he cannot do one or more of these things, you must find that he is not fit to be tried.

[The mere fact that the defendant is highly abnormal/not capable of acting in his own best interests is not conclusive that he is unfit to be tried, although it is a factor which you may take into account].

你們只須就以下問題作出決定：這名被告人是否精神上無能力，以致不適宜就這項公訴受審。

由於是控方提出被告人精神上無能力，因此控方有責任證明並使你們肯定他不適宜受審。

或：由於是辯方提出被告人精神上無能力，因此辯方有責任證明他不適宜受審，但只須以相對可能性的衡量準則證明，即只須證明他不適宜受審的機會較高。

你們必須應用以下測試準則：被告人能否明白在[ 他的審訊/ 這些法

Issued September 2013 7.2

律程序] 中所進行的事情，並且可以：

1. 提出任何他所可能有的適當的答辯理由；以及

2. 反對某人出任陪審員，而可提出反對理由的；以及

3. 向他的律師作出指示，就是他必須能夠告訴律師他的理據是甚麼和他是否同意證人所說的話；以及

4. 明白證供的內容？

如果被告人能夠作出上述所有事情，你們便必須裁定他適宜受審。如果[ 你們肯定 ][你們以相對可能性的衡量準則裁定 ] 他不能夠作出上述事情中的其中一項或超過一項，便必須裁定他不適宜受審。

[ 你們不可以只是基於被告人嚴重失常 / 不能夠為自己的最佳利益行事，而斷定他不適宜受審，但上述情況可被視為考慮因素之一。 ]

Note: See R v Pritchard (1836) 7C & P 303; R v Robertson [1968] 52 Cr App R 690 and R v Berry Cr App R 156 and R v O‘Donnell [1996] 1 Cr App R 286. A person is not unfit because, in consequence of hysterical amnesia, he has no recollection of the events giving rise of the charge, see R v Podola (1959) 43 Cr App R 220, CCA.

Archbold Hong Kong (2013) 4-37 Archbold (2013) 4-230 et seq. Blackstone (2013) D12.2 et seq. Bruce, Criminal Procedure: Trial on Indictment VI [254]

Issued September 2013 8.1

8. JOINT RESPONSIBILITY AND ACCESSORIES

The question of joint responsibility and its application to a particular case is difficult enough for a judge and, save in straightforward cases where the basic direction may suffice, is likely to be especially difficult for a jury. It is important therefore for the directing judge not only to be accurate and precise in the direction as a matter of law, but to make the direction comprehensible to the jury in the context of the particular case. A general direction as to what constitutes joint responsibility in law should be supplemented, at an appropriate point in the summing-up, by an explanation of how it is alleged in the instant case that the defendant was a party to the crime, what his answer (if any) is, and what would and what would not, on the facts, suffice to have constituted him or her a party.

It is a matter for the court to ascertain from the evidence (and from prosecuting counsel) on what basis the prosecution case is being put, whether on the basis of joint enterprise (in which case direction A or B will likely suffice) or of otherwise assisting or bringing about the offence (in which latter case direction C or D may suffice). In some cases the directions could overlap in their applicability and considerable care should be exercised in the phraseology of the direction used. It follows that these specimen directions must be recognized as starting points only, as guides to the proper approach.

Joint Enterprise

Direction A is a basic direction and it, or a direction along its lines, will suffice in most cases. However, the situations and combinations of factual issues which can and do present themselves are varied and can be complex, especially in murder/manslaughter cases and it is essential to adapt a joint enterprise direction to the particular circumstances of the case.

In cases of doubt or complexity judges should discuss the proposed direction with counsel before final speeches.

Direction B: Where the case is that the particular act complained of is not the subject of pre-planning, but may e.g. have arisen spontaneously and/or e.g. where it is open to the jury to find that the injury or damage could have been caused by one person A acting alone, and it is the case of the other defendants B and C that they should not be criminally responsible for A‘s act. Typically this arises where it is suggested that one of a group acted alone or went outside what was agreed and contemplated.

Examples are given of situations which may arise where there is evidence of unusual/unforeseen consequences etc. and of non-participation of defendant B because it is said that the act of another, A, was outside his contemplation or foresight.

Issued September 2013 8.2

Accessories

Direction C: Where it is the prosecution case that the defendant was absent from the scene of the offence, but he had ‗counseled or procured‘ its commission.

Direction D: Where it is the prosecution case that the defendant ‗aided and abetted‘ the offence.

Handouts:

It is a matter for the discretion of a judge whether and in what circumstances to reduce a specific direction to written form as a handout. It is likely to prove useful in cases of murder, for example, where alternative defences have to be considered and explained. If handouts are used they should be concise, and the jury told not to elevate the status of the written direction above that of directions delivered orally.

Note:

In murder cases involving an attack by several persons, careful attention must be paid to the implications of the House of Lords‘ decision in R v Powell and R v English [1999] 1 AC 1. Also note R v Uddin [1998] 2 All ER 744, R v Greatrex [1999] 1 Cr App R 126 and R v O‘Flaherty [2004] 2 Cr App R 20. These cases relate to what degree the secondary members of the joint enterprise must have the nature of the acts perpetrated by the primary member of the joint enterprise in their contemplation. An important recent decision (2 July 2008) is R v Rahman [2009] 1 AC 129. In Hayden Jackson v The Queen [2009] UKPC 28 (7 July 2009) the Privy Council (paragraph 11) cited with approval the re-statement of principle stated by Lord Brown of Eaton-under-Heyword in Rahman at paragraph 68:

― If B realizes (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplate that A or any other participant may be carrying and (ii) for that reason A‘s act is to be regarded as fundamentally different from anything foreseen by B.‖

See also Sze Kwan Lung v HKSAR (2004) 7 HKCFAR 475.

See also R v Gilmour (2000) 2 Cr App R 407 as to the situation where though both primary and secondary members of the joint enterprise contemplate the committing of the same act, their intentions differ (e.g. as to whether the act is intended to kill or simply to cause actual bodily harm).

See also Law Commission Report Consultation Paper 177 ―A new Homicide Act for England and Wales‖ (2005) pages 120–133 and Report 305 ―Participating in Crime‖ page 22.

For Acts & Declarations in the course of a joint enterprise see Conspiracy, 12.3, post.

Issued September 2013 8.3

Joint Enterprise 共同計劃

A Basic direction: (In most cases this will be sufficient)

The prosecution‘s case is that [the defendants committed this offence together][the defendant committed this offence jointly with …]. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a joint plan or agreement to commit the offence, they are each guilty.

The words ‗plan‘ and ‗agreement‘ do not mean that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment. Nothing need be said at all. It can be made with a nod and a wink, or a knowing look, or it can be inferred from the behaviour of the parties. The essence of joint responsibility for a criminal offence is that each defendant shared a common intention to commit the offence and played his part in it [however great or small] so as to achieve that aim.

Your approach to the case should therefore be as follows: if, looking at the case of either/any defendant, you are sure that with the intention I have mentioned he took some part in committing it [with others/with B and C] he is guilty.

A 基本指引：（在大部分案件中這已足夠）

控方的案情指 [ 各被告人一同干犯此項罪行 ][被告人聯同 · · · 一起干犯此項罪行 ] 。如果兩個或以上的人一同干犯刑事罪行，即使各人所擔當的角色不同，但他們如按照共同的犯罪計劃或協議行事，則各人均屬有罪。

‘計劃’或‘協議’等字眼，並不意味他們之間需要有正式的計劃或協議。共同犯罪的協議可以在一時衝動之下達成。各人之間無需交談，彼此的協議可以透過點頭或眨眼示意而達成，或透過表情而會意，也可以從各人的行爲而推定。刑事罪行的共同罪責的重點，在於每一被告人均有共同的犯罪意圖，並藉其所擔當的角色（不論角色多大或多小）達到犯罪的目標。

因此，你們應以下述方法處理案件：如果考慮其中 / 任何一名被告人的案情後，你們肯定被告人有本席剛才提及的意圖，並有份 [ 與其他人／與 B 和 C]一起犯案，他即屬有罪。

Issued September 2013 8.4

Only where appropriate.

Mere presence at the scene of a crime is not enough to prove guilt. But if you find that a particular defendant was at the scene and intended and did by his presence alone encourage the others [in the offence] he is guilty.

祗限適當時使用

被告人身在罪案現場這一點，本身並不足以證明他有罪。但如果你們裁斷某一被告人身在現場，蓄意地憑他身在現場這一點鼓勵，並實際上鼓勵了[ 罪行中] 的其他人，則他即屬有罪。

B Where it is open to the jury to find that one defendant acted alone, or went beyond what was ‗agreed‘.

(First give the basic direction A and add the following, suitably adjusted to the facts of the case. For further assistance see the three examples below):

Even if there was a plan to [e.g. commit a burglary] if what A did [e.g. in committing an assault on the occupant of the premises] went beyond anything that the other(s) had agreed or realised he might do, A alone is responsible for that act and is therefore guilty of the offence. [The others would not be guilty of that offence [although they would be guilty of burglary]].

But if you are sure that B did realise that A might [e.g. commit an assault in furtherance of the burglary] the law is that by taking part in the burglary with that knowledge, he is taken to have accepted the risk that A would act in that way, and so he adopts those acts and is responsible for them [even if he would have preferred that A had not acted like that at all].

B 凡陪審團可以裁斷被告人是單獨行事或作出超乎之前‘協議’ 的行爲

（首先給予基本指引 A ，之後再加上以下的指引，並因應案件的案情而作出適當的調整。如需進一步的協助，請參閲下述三個例子）：

即使之前有計劃干犯[ 例如：入屋犯法罪 ] ，如果 A 作出了超乎其他人所協議或意識到他可能會作出的行爲， [ 例如：襲擊在屋子裏的人 ]，則祗有 A 本人須為該行爲負責，並因此就該罪行而言，祗有 A 屬有罪。 [ 就該罪行而言，其他人是無罪的， [ 但就入屋犯法罪而言，他們則屬有罪]]。

但如果你們肯定 B 意識到 A 可能會 [ 例如：在干犯入屋犯法罪的過程中襲擊他人]，法律規定， B 既在參與干犯入屋犯法罪時已意識到這一點，B 便被視爲已接受了 A 可能會作出該行爲的風險，因此 B

Issued September 2013 8.5

認同/ 默認了該等行爲，並須為該等行爲負責。 [ 即使 B 寧可 A 從不曾作出該等行爲，情況也是一樣] 。

Example 1 - the ‗spontaneous act‘ (The examples are provided for the benefit of the judge.)

If a gang of youths goes out looking for trouble and one of them, A, starts a fight, all the others who join in to back him up will be acting unlawfully, and will be guilty of common assault at least. If the victim suffers some bodily harm then each one who participated will be guilty of assault occasioning actual bodily harm, no matter which one actually caused the damage. (Basic direction).

If one of the gang, A, has a knife and in the course of the fight uses it to kill/or cause serious bodily harm to the victim A will be guilty of murder/section 17 if the prosecution proves that he intended to kill or to cause serious bodily harm.

But in addition, each of the other gang members B and C who take part in the fight may also be guilty of murder/section 17, but only if [when he took part]:

1. He knew A had a knife, and

2. He shared A‘s intention to kill or do really serious bodily harm or realised that A might use the knife with that intention, and nevertheless took part.

If – on the other hand – the prosecution proves against a defendant that he participated in the fight unlawfully and that when he did so:

1. He knew that A had a knife, and

2. He realised that A might use the knife to cause some injury falling short of really serious harm, then that defendant is guilty of manslaughter if A kills the victim or section 19 (or AOABH) if he does not.

例子 1 － ‘ 自發的行爲’ （以下例子供法官參考）

一幫青年在街上惹事生非，其中一人 A 動手與別人打鬥，所有加入打鬥以支持 A 的人全都犯了法，並至少干犯了普通襲擊罪。如果受害人受到某些實際的身體傷害，則無論損傷由誰造成，每一個參與打鬥的人均須負上襲擊致造成他人身體傷害的罪責。（基本指引）

如果這幫青年其中一人 A 身上有刀，並且在打鬥的過程中用刀殺死了受害人／或導致受害人身體嚴重受傷，如果控方證明了 A 有意圖殺害受害人或導致他身體嚴重受傷，則就謀殺罪／第 17 條的罪行而言，A 即屬有罪。

Issued September 2013 8.6

但此外，就謀殺罪／第 17 條的罪行而言，曾參與打鬥的 B 和 C 均可能同屬有罪；然而在裁定 B 或 C 有罪之前，你們必須確定 B 或 C[加入打鬥時] ：

1. 他知道 A 身上有刀，以及

2. 他與 A 一樣同有殺人或導致他人身體受到真正的嚴重傷害的意圖，或者他雖已意識到 A 可能會存著這意圖而使用刀子，但他仍然參與打鬥。

但另一方面，如果控方證明被告人參與非法打鬥，並且在打鬥時： -

1. 他知道 A 身上有刀，以及

2. 他意識到 A 可能會使用刀子，並引致他人受到較真正嚴重的傷害爲之輕微的損傷，

如果 A 殺死了受害人，被告人即屬干犯誤殺罪。如果受害人沒有被 A 殺死，被告人即屬干犯第 19 條的罪行（或襲擊他人致造成身體傷害的罪行）。

Suggested concluding direction in this example (assuming the jury have been directed as to the elements of murder and manslaughter):

Therefore, before you convict A of murder you must be sure:

1. That he caused or inflicted the fatal wound or injury.

2. That when he did so he then intended to kill or cause really serious bodily harm to the deceased. [And if you find him not guilty of murder, then] before you convict A of manslaughter you must be sure:

1. That he caused or inflicted the fatal wound or injury by [unlawful act];

2. That he intended to [do the unlawful act]; and

3. That the act was one which all sober and reasonable people would realise must subject the victim to the risk of some harm.

Issued September 2013 8.7

建議在本例子中作出下述總結指引 ( 假定已向陪審團作出有關謀殺罪和誤殺罪元素的指引 ) ：

因此，在裁定 A 謀殺罪名成立之前，你們必須肯定：

1. 他導致或造成致命的傷害或損傷。

2. 當他傷害死者時，他的意圖是殺害死者或導致死者受到真正嚴重的身體傷害。

[ 又如果你們裁定他謀殺罪名不成立，則 ]

在裁定 A 誤殺罪名成立之前，你們必須肯定：

1. 他的[ 非法行爲] 導致或造成致命的傷害或損傷；

2. 他蓄意作出[ 此非法行爲 ] ；以及

3. 任何神志清醒而合理的人士均會意識到，此行爲必定會使受害人有蒙受某些傷害的危險。

In respect of other members of the gang against whom there is no evidence to prove any one of them did the act which resulted in the death of the victim:

Before you can convict B [or C] of murder you must be sure [looking at their cases separately]:

1. That he took part in the attack on the victim with A; [and]

2. That when he did so he either shared A‘s intention to kill or cause really serious bodily harm OR realized that A might attack the victim with the knife either intending to kill him or cause him really serious injury; [and]

3. (Only when the issue arises – and see Note to Example 3(a) below:) That B [or C] had not had a change of mind and withdrawn from the joint enterprise before A had started to [do the relevant act which constitutes the offence from which B [or C] claims he had withdrawn.]

[And if you find him not guilty of murder, then before you can convict B [or C] of manslaughter you must be sure [looking at their cases separately] ]:

1. That he took part in the attack on the victim with A [and other members of the gang];

2. That he intended OR realized that A [or other members of the gang] would or might do an act of the sort which caused the death of the victim; and

Issued September 2013 8.8

3. That the act was one which all sober and reasonable people would realise must subject the victim to the risk of some harm; and

4. (Only where the issue arises – and see Note to Example 3(a) below:) that B [or C] had not had a change of mind and withdrawn from the joint enterprise before A [or other member of the gang] had started to [do the relevant act which constitutes the offence from which B [or C] claims he had withdrawn].

凡沒有證據證明導致受害人死亡的行爲，是由那幫人士中其他的成員所作出的，則：

在裁定 B[或 C]謀殺罪名成立之前， [ 經考慮其個別的案情 ]，你們必須肯定：

1. 他曾與 A 一同參與襲擊受害人； [ 以及]

2. 當他參與襲擊時，他與 A 同樣有意圖殺害受害人或使受害人受到真正嚴重的身體傷害，或者他意識到 A 可能用刀襲擊受害人，並意圖殺害受害人或使受害人受到真正嚴重的身體傷害；[ 以及]

3. （祇於有關的爭論點出現時適用 - 並參閲以下例子 3 ( a ) 的註解：）在 A 開始[ 作出構成該罪行（即 B 或 C 聲言已退出的罪行）的相關行為] 之前，B[或 C]並沒有改變主意和退出共同計劃。

[ 又如果你們裁定他謀殺罪名不成立，則你們 [ 經考慮他們個別的案情後] ，必須肯定下列各點，才可裁定 B[或 C]誤殺罪名成立：

1. 他曾與 A[及那幫人士中的其他人 ] 一同參與襲擊受害人；

2. 他有意圖或意識到 A[或那幫人士中的其他人 ] 將會或可能會作出導致受害人死亡的行爲；以及

3. 任何神志清醒而合理的人士均會意識到，有關行爲必定會使受害人有蒙受某些傷害的危險；以及

4 . （祇限有關的爭論點出現時適用 - 並參閲以下例子 3 ( a ) 的註解：）在 A 開始[ 作出構成該罪行（即 B 或 C 聲言已退出的罪行）的相關行為] 之前，B[或 C]並沒有改變主意和退出共同計劃。

Issued September 2013 8.9

Example 2 – The R v English problem

A and B set out to attack their victim with wooden stakes. A, unknown to B, has a knife and uses it to stab the victim, who dies.

例子 2 －R v English 一案的問題

A 和 B 帶著木樁出發去襲擊受害人。在 B 不知道的情況下， A 身上帶了一把刀，後來 A 用刀把受害人刺死。

Suggested concluding direction in this example:

If you are sure that A and B set out to attack [the victim with wooden stakes which each of them carried] but A [killed by stabbing the victim with a knife], and you think B may be telling the truth when he says he had no idea that A [had or would use the knife] then you must consider whether A‘s [use of the knife] was fundamentally different from any act which B realised A might do.

If you are sure that it was not fundamentally different, and you are satisfied A is guilty of murder, then B is also guilty of murder, providing you are sure that he realised that A might assault the victim intending to kill or cause really serious bodily harm. If B realised that A might cause injury falling short of really serious harm he would be guilty of manslaughter. But if A‘s act was, or may have been, fundamentally different from any act which B realised A might do then B is not guilty [either of murder or manslaughter].

建議在本例子中作出以下的總結指引：

如果你們肯定 A 及 B 二人打算[ 以各自攜帶的木樁襲擊受害人 ]，但 A[用刀子刺死受害人] ，而且你們認爲當 B 說他不知道 A[帶有或會使用刀子] 時，他所言可能屬實，若是如此，你們必須考慮 A[使用刀子] 這行爲，是否與 B 所意識到 A 可能會作出的行爲有基本/ 根本性的區別。

如果你們肯定兩者並非有基本／根本性的區別，而且肯定 B 意識到 A 可能會毆打受害人並有意圖把受害人殺死或使受害人受到真正嚴重的身體傷害，則當你們信納 A 屬干犯謀殺罪時， B 同樣屬干犯謀殺罪。如果 B 只是意識到 A 可能導致較真正嚴重傷害為輕微的傷害，B 即屬干犯誤殺罪。但如果 A 的行爲，與 B 意識到 A 可能會作出的行為，有或可能有基本／根本性的區別，則 B 並不屬干犯了 [ 謀殺罪或誤殺罪] 。

Issued September 2013 8.10

Example 3(a) – ‗Unusual consequences‘

Two men unlawfully enter a building which they know to be occupied. A steals part of a lift‘s mechanical equipment. B knew that A would do this in the course of the burglary or realised that he might do so. As a result of the removal of this equipment the lift is left in a dangerous condition and when next operated causes a fatality. They are both guilty of burglary and of manslaughter if a reasonable man sharing their knowledge of the situation would have realised that what A did might cause a risk of some physical harm to the lift user.

例子 3 ( a ) － ‗ 不尋常的後果‘

兩名男子非法進入一座據他們所知有人佔用的建築物。A 偷了電梯的機械裝置。 B 知道 A 在干犯入屋犯法罪的過程中會這樣做，或意識到 A 可能會這樣做。電梯的裝置被拆除後，電梯便處於危險的狀況，並在下一次操作時發生了致命的事故。兩人均屬干犯了入屋犯法罪；又如果任何合理的人士獲知當時的情況，必定會意識到 A 所作的行爲，可能會對電梯使用者的人身安全構成某些危險，則兩人亦屬干犯了誤殺罪。

Suggested concluding direction in this example (assuming the elements of manslaughter have been explained to the jury):

Therefore, before you can convict B (of manslaughter in this example) you must be sure:

1. That there was an agreed plan to commit the [burglary];

2. That B took part in [the burglary], either intending that A should do the act which in fact caused death, or realising that he might do this act and

3. That a reasonable man with B‘s knowledge of the situation would have realised that this act might cause a risk of some harm to the householder.

4. (Only where the issue arises – and see Note below:) That B had not had a change of mind and decided to withdraw from the agreed plan before A had started to perform the relevant act [which constitutes the offence].

建議在本例子中作出下述的總結指引（假定已向陪審團解釋誤殺罪的元素）：

因此，在裁定 B （本例子中的誤殺罪）罪名成立之前，你們必須肯定：

1. 二人之前已有協議，計劃一起干犯[ 入屋犯法罪] ；

2. B 參與[ 入屋犯法罪]，其意圖是 A 會作出事實上導致他人死亡

Issued September 2013 8.11

的行爲，或意識到 A 可能會作出該行爲；以及

3. 任何合理的人士如獲悉 B 所知道的事情，會意識到該行爲可能會對住戶造成某種危險。

4 . （祗限有關的爭論點出現時適用 - 並參閲以下的註解：）在 A 開始作出[ 構成該罪行的] 相關行為之前， B 並沒有改變主意及退出協定的計劃。

Note:

As to withdrawal from a joint enterprise, see Archbold Hong Kong (2013) 20-37; Archbold (2013) 18–26 to 18–29; R v Mitchell and another [1998] EWCA 2444; and R v Robinson [2000] 5 EWCA Crim 8.

Example 3(b) – ‗Unusual consequences‘

Two men agree to commit a burglary intending to steal anything of value. Both know that the house is occupied. Whilst A is opening the safe upstairs, B without A‘s knowledge, turns on the gas taps in the kitchen and lights a candle. In the resulting explosion, the householder is killed. B is guilty of burglary and at least manslaughter. A is guilty of burglary only, for in this illustration B‘s act is obviously fundamentally different from anything A anticipated he might do.

例子 3 ( b ) － ‗ 不尋常的後果‘

兩名男子協議干犯入屋犯法罪，意圖偷竊任何值錢的東西。兩人均知道該房子有人佔用。當 A 正在樓上撬開夾萬時， B 在 A 不知情之下把廚房的煤氣龍頭打開，然後燃點蠟燭，結果發生爆炸，導致戶主死亡。B 即屬干犯了入屋犯法罪，並最起碼也干犯了誤殺罪。由於在本例子中， B 的行爲顯然與 A 預期他可能會作出的行爲有基本 / 根本上的區別，則 A 祗屬干犯了入屋犯法罪而已。

Accessories 從犯

C Counsel or Procure

Where it is the prosecution‘s case that the defendant B was not present at the scene of the offence, but there is a specific allegation that he had ‗counselled or procured‘ A to commit it.

It is the prosecution‘s case that the defendant B was not present when the offence of […] was committed, but that he is nevertheless guilty of the offence because he counselled or

Issued September 2013 8.12 procured its commission. Counselling means that he ordered, advised, encouraged or persuaded [A] to commit the offence. Procuring means that he intended that [A] should commit the offence and took steps to ensure that he did (e.g. by threatening him with violence if he did not, or by paying him to do so).

Before you can convict B of this offence you must be sure:

1. That A in fact committed the offence of […]; and

2. That either B counselled A to do it in the sense that he ordered, advised, encouraged or persuaded him to do it or that B procured A to do it, in the sense that he set out to cause him to do it, and in fact [directly or indirectly] did cause A to do it; and

3. That the offence which A committed was within the scope of what B counselled/procured him to do.

4. (Only where the issue arises:) That B had not had a genuine change of mind before A committed the offence and expressly instructed A not to do it.

C 慫使或促致

即控方案情是被告人 B 不在罪案現場，但控方卻明確地指控他 ‘ 慫使或促致 ’另一人 A 干犯罪行。

控方的案情指，在[ … ] 罪行發生時，被告人 B 雖不在罪案現場，但因他慫使或促致他人干犯該罪行，因此就該罪行而言，B 也屬有罪。慫使的意思是他命令、建議、慫恿或游說 [ A ] 干犯該罪行。促致的意思是他的意圖是令[ A]干犯該罪行，並採取了某些行動以確保 [ A ] 會干犯該罪行（例如：若 [ A ] 不干犯該罪行，就以暴力威脅，或以金錢作爲報酬）。

在裁定 B 此項罪行的罪名成立之前，你們必須肯定：

1. A 事實上曾干犯了[ … ] 的罪行；以及 2. B 慫使 A 干犯該罪行，意思指他命令、建議、慫恿或游說 [ A ] 干犯該罪行，或者 B 促使 A 干犯該罪行，意思指他令致 [A] 干犯該罪行，而事實上亦[ 直接或間接] 引致 A 干犯該罪行；以及

3. A 所干犯的罪行，是屬於 B 所慫使或促致他作出的行爲的範圍之内。

4 . （祗限有關爭論點出現時適用：）在 A 干犯該罪行之前， B 並沒有真誠地改變主意，及已明確地指示 A 不要干犯該罪行。

Issued September 2013 8.13

D Aid or abet

Where it is the prosecution‘s case that the defendant B, whether he was present at the scene of the offence or not, had by some act ―aided or abetted‖ A to commit the offence.

It is the prosecution‘s case that although the defendant B did not himself do [or commit] the [act/offence] he nevertheless assisted and intended to assist A in committing the offence.

A person who assists or helps another person to commit an offence can also be guilty of that offence as an aider and abettor.

Before you can convict B of the offence, you must be sure:

1. That A in fact committed the offence of [ …]

That B assisted or helped A to commit the offence by [act or acts of assistance]

2. That B intended to assist or help A commit the offence.

D 協助或教唆

即根據控方的案情，不論被告人 B 是否在罪案現場出現，他曾作出某些行爲去‚協助或教唆‛ A 干犯該罪行。

控方的案情是，被告人 B 本身雖然沒有作出[ 或干犯] 有關的[ 行爲/ 罪行] ，但他卻有協助且是有意圖地去協助了 A 干犯該罪行。

任何人協助或幫助另一人犯案，就可因他是協助者和教唆者的身份而被判該罪名成立。

在裁定 B 該罪行罪名成立之前，你們必須肯定：

1. A 事實上干犯了[ … ] 的罪行。

B 以下列行為去協助或幫助 A 犯案：[ 列出各項協助的行為 ]。

2 . B 是意圖去協助或幫助 A 干犯該罪行。

Archbold Hong Kong (2013) 17-7 to 22 Archbold (2013) 18-9 to 24 Blackstone (2012) A4.1 to 22

Issued September 2013 9.1

9. ASSISTING OFFENDERS PURSUANT TO SECTION 90, CRIMINAL PROCEDURE ORDINANCE CAP. 221 根據《刑事訴訟程序條例》（第 2 2 1 章）第 90 條起訴的協助罪犯罪

Before you may convict the defendant A of [the offence], you must be sure of three things:

1. That B committed an arrestable offence, which the offence of … is; and

2. That A knew or believed that B was guilty of that offence [or some other arrestable offence]; and

3. That A, in that knowledge or belief, did an act [namely …] with intent to impede [that is hinder] B‘s arrest or prosecution.

在裁定被告人 A [ 罪行] 的罪名成立之前，你們必須肯定三件事：

1. B 干犯了可逮捕的罪行，而該罪行是 …；以及

2. A 知道或相信 B 干犯了該罪行[ 或其他可逮捕的罪行 ] ；以及

3. 在知情或相信 B 屬有罪的情況下， A 蓄意作出某些行為 [ 即 … ] ，使拘捕或檢控 B 的過程受到妨礙[ 即阻礙] 。

Note: Section 90(1) provides for a defence of lawful authority or reasonable excuse.

Archbold Hong Kong (2013) 17-32 to 35 Archbold (2013) 18-34 to 37 Blackstone (2013) B14.53 to 63

Issued September 2013 10.1

10. PLEA OF GUILTY/CONVICTION OF ONE DEFENDANT, EFFECT ON DEFENDANT ON TRIAL 另一被告人的認罪答辯／定罪對審訊中的被告人的影響

A Joint charge where one or more defendants have pleaded guilty but no reference to this has been made to jury

The defendant whom you are trying is alleged to have committed the offence together with B. That is why you see B‘s name in the indictment. You are not trying B. Do not concern yourselves in any way with what has happened in his case. Do not speculate about that. You must concentrate upon the case of this defendant alone and decide whether the evidence before you makes you sure of his guilt.

A 凡同一控罪中一名或以上的被告人已承認控罪，但陪審團並沒有獲告知此事

本案中的被告人被指控與 B 一同干犯此罪行，因此公訴書上列出了 B 的名字。你們並非在審訊 B。在 B 的案件中所發生的事情與你們毫無關係，大家不要對該案作出任何揣測。你們必須集中審理本案的被告人，即只被告一人，並決定在你們面前的證據可否令你們肯定此被告人有罪。

B Joint charge where jury is informed of plea of other defendant (see Note 2)

You have heard that B, who is named in the same count of the indictment as the defendant, has pleaded guilty. The fact that he has pleaded guilty is now known to you, but it can have no bearing on your decision in the case of this defendant. The prosecution has to prove its case against this defendant so that you are sure of his guilt, just as it would have to if B had not pleaded guilty.

B 凡陪審團獲悉在同一控罪中的另一被告人之答辯 ( 參閲註解 2)

你們已經獲告知 B ，即與本案被告人的名字同列於公訴書上的人士，已經承認控罪。雖然你們獲悉他已承認控罪，但這事情不應影響到大家針對本案被告人所要作出的裁決。控方必須證明對被告人作出的指控，令大家肯定他有干犯所控的罪行，情況就猶如 B 不曾承認控罪一樣。

Note: 1. In referring to English cases concerning the admission of evidence of the conviction of a person other than the accused, note that sections 74 and 75 of PACE 1984 have not been enacted in Hong Kong.

2. In R v Hall [1993] Crim LR 527, the Court of Appeal said that the fear that a jury might be mystified by the absence of a co-accused who had pleaded guilty is more imagined than real.

Issued September 2013 10.2

3. There are a number of ways in which a co-offender‘s plea of guilty might become known to a jury. Any direction should be carefully tailored to the facts of the case.

Archbold (2013) 4-342, see also discussion where PACE s.74 does not apply at 9-92 Bruce & McCoy, Criminal Evidence in Hong Kong V [1101]

Issued September 2013 11.1

11. ATTEMPTS 企圖

Before you can convict the defendant you must be sure of two things: first that he intended to commit [the offence in question] and second, that, with that intention, he did something which was more than mere preparation for committing that offence. It is for you to decide whether what he did was more than mere preparation.

在裁定被告人罪名成立之前，你們必須肯定兩件事：第一，他意圖干犯[ 涉案的罪行] ；第二，他在有此意圖下，已作出超乎祗屬預備干犯該罪行的行爲。你們要決定他所作出的，是否已超乎祗屬預備干犯該罪行的行爲。

Notes: 1. The offence of attempt at common law has now been abolished in Hong Kong: see section 159G et seq. Crimes Ordinance, Cap. 200.

2. It is inappropriate to refer to any of the tests for an attempt that were in use before enactment of Part XII A of the Crimes Ordinance. See Archbold (2013) 33-127; R v Jones (KH) [1990] 1 WLR 1057, CA; R v Campbell [1991] Crim LR 268; and R v Qadir and Khan [1998] Crim LR 828. Part XIIA of the Crimes Ordinance is modelled on the Criminal Attempts Act 1981 (UK) so English authorities after that date have applicability.

3. It is for the judge to determine whether there is evidence from which a reasonable jury properly directed could conclude that the defendant had done acts which were more than merely preparatory to the commission of the full offence: see e.g. R v Geddes [1996] Crim LR 894 and R v Tosti [1997] EWCA Crim 222. It is for the jury to decide, having regard to the burden and standard of proof, where the line has to be drawn, but the judge may help them in an appropriate case by indicating by way of examples, one circumstance well on each side of the line.

See R v Lin Kuo Liang [1997] HKLR 694; R v See Lee Shek [1976] HKLR 636; R v So Ching Kwan Crim App No. 439 of 1991 (unreported).

Archbold Hong Kong (2013) 36-83 to 101 Archbold (2013) 33-127 to 147 Blackstone (2013) A5.68 to 81

ATTEMPTING THE IMPOSSIBLE

Where the issue arises first give the direction above and continue Here, the commission of the offence of [handling] was impossible because [the goods which the defendant is alleged to have attempted to handle were not in fact stolen goods]. But that does not prevent him from being guilty of attempting [to handle stolen goods]. You may convict the defendant of attempting [to handle stolen goods] if you are sure (1) [that he believed them to be stolen goods] and (2) that, with that belief, he [dishonestly handled or attempted to handle them.]

Issued September 2013 11.2

企圖干犯不可能成事的罪行

如有這類爭論出現時，應首先給予以上的指引，然後繼續：在本案中，[ 被告人被控企圖處理贓物的罪行]，其實這是不可能的，因為案中的物品並非贓物。但即使被告人所處理的物品事實上並非贓物，這也無礙他可被裁定企圖[ 處理贓物罪 ] 的罪名成立。如果你們肯定（ 1 ） [ 被告人相信案中的物品是贓物]，以及（ 2 ）他不但如此相信，並且 [ 不誠實地處理或企圖處理有關物品 ]，你們就可以裁定被告人企圖[ 處理贓物罪 ] 的罪名成立。

Note: Section 159G(2) Crimes Ordinance allows the commission of the offence of attempt even though the full offence is impossible. See also R v Shivpuri [1987] AC 1, HL.

Archbold Hong Kong (2013) 36-93 Archbold (2013) 33-137 Blackstone (2013) A5.80

Issued September 2013 12.1

12. CONSPIRACY 串謀罪

Just as it is a criminal offence to (here specify the substantive offence e.g. steal, rob, commit murder), so is it a criminal offence for two or more persons to agree with one another to commit that offence. An agreement to commit an offence is called a conspiracy; and that is the offence which is charged here.

Before you can convict either/any of these defendants of this offence, you must be sure:

1. That there was in fact an agreement between two or more persons to commit (e.g. robbery); and

2. That the defendant whose case you are considering was a party to that agreement in the sense that:

(i) he agreed with one or more of the other persons referred to in the count that the (robbery) should be committed; and

(ii) at the time of agreeing to this, he intended that they [he/X] should carry it out.

You may think that it is only in a rare case that a jury would receive direct evidence of a criminal conspiracy (e.g. eye witness/documentary evidence). When people make agreements to commit crimes you would expect them to do so in private. You would not expect them to agree to commit crime in front of others or to put their agreement into writing. But people may act together to bring about a particular result in such a way to leave no doubt that they are carrying out an earlier agreement.

Accordingly, in deciding whether there was a criminal conspiracy, and if so whether the defendant whose case you are considering was a party to it, look at all the evidence as to what occurred during the relevant period (this is usually but not necessarily the period covered by the count), including the behaviour of each of the defendants/alleged conspirators.* If having done that you are sure that there was a conspiracy and that he was a party to it, you must convict. If you are not sure, you must acquit.

When criminal conspiracies are formed it may well happen that one or more of the conspirators is more deeply involved in and has a greater knowledge of the overall plan than the others. Also, a person may agree to join in the conspiracy after it has been formed or he may drop out of it before the crime has been fully carried out. Providing you are sure in the case of any defendant that he did at some stage agree [with a named co-conspirator] that the crime (in question) should be committed and at that time intended that it should be carried out, it does not matter precisely where his involvement appears on the scale of seriousness or precisely when he became involved, he is guilty as charged.

Issued September 2013 12.2

正如（在此述明實質罪行，例如：偷竊罪、搶劫罪、謀殺罪等）屬刑事罪行，兩個或以上的人協議一起干犯該罪行，他們同屬干犯刑事罪行。協議干犯罪行，稱爲串謀罪，也就是被告人在本案中被控告的罪行。

在裁定其中／任何一名被告人此項罪行的罪名成立之前，你們必須肯定：

1. 兩個或以上的人事實上已達成協議干犯（例如：搶劫罪）；以及

2. 你們正在審理的被告人是該協議的其中一方，意思指：

(i) 他與控罪中提述的一個或以上的人協議干犯（搶劫罪）；以及

(ii) 在達成協議之時，他的意圖是他們 [ 他／ X ] 會把該協議付諸實行。

你們可能會察覺：在甚少的審訊中，陪審團會得到刑事串謀罪的直接證據（例如：目擊證人／文件證據）。當罪犯協議犯罪時，理應會在私下進行。各位會預期他們不會在別人面前達成犯罪的協議，也不會把彼此的協議以書面記錄。但他們仍可聯合行動，藉此帶出某一結果，而情況會令你們毫無疑問地認爲，他們正在把早前已達成的協議付諸實行。

因此，在你們決定刑事串謀是否存在，以及若有此項串謀的話，本案中的被告人是否屬該項串謀的一方，你們應考慮在相關期間（一般指控罪所涵蓋的期間，但不一定）發生的事情的所有證據，包括每一被告人／被指控的同謀者的行為舉動 *。經過考慮之後，如果你們肯定曾有串謀，而他是其中一方的話，你們必須裁定他的罪名成立。如果你們並不肯定，則必須裁定他無罪。* 請參閱以下‚串謀期間或在串謀附諸實行所說的話或作的行為‛。

當刑事串謀形成後，其中一名或以上的同謀者的參與程度，甚有可能較其他人為大，而對整體計劃所知的也較多。此外，有人可能在串謀形成之後才同意加入，或在整項罪行完成之前退出。祗要你們肯定案中任何一名被告人期間曾與[ 某具名的同謀者] 協議干犯（涉案的）罪行，而他當時的意圖是會把罪行付諸實行，則無論他確實的參與程度孰輕孰重，或無論他確實何時加入犯罪，就此項控罪而言，他已屬有罪。

* See below: ―Things said and done in course/in furtherance of conspiracy.‖

Issued September 2013 12.3

It may be necessary or desirable - should the specific point/s arise - to add one or more of the following directions, explaining the point by reference to how it arises in the case:

1. To prove conspiracy, it is not necessary to prove that the crime was carried out. The agreement plus the intention to take part is sufficient.

2. To prove conspiracy, it is necessary to prove that an agreement was reached. Mere discussion about the possibility of committing the crime does not suffice to complete the offence of conspiracy.

3. If in fact there was an agreement to commit the offence, to which agreement the defendant was a party, intending to take part, withdrawal by him after the agreement is made and before the crime is committed is immaterial, and in such circumstances, the defendant would nonetheless be guilty of conspiracy.

1. 如要證明串謀罪，無須證明罪行已經付諸實行，而祗須證明犯罪的協議和參與的意圖，就已足夠。

2. 如要證明串謀罪，必須證明犯罪協議已經達成。祗屬犯罪可能性的討論，則不足以構成串謀罪。

3. 如果事實上曾有干犯罪行的協議，而被告人是協議的其中一方，並有參與的意圖，即使他在協議達成後和在罪行干犯前退出，也是無關重要的；在此情況下，就串謀罪而言，被告人仍屬有罪。

Notes as to conspiracy generally:

(1) See section 159A Crimes Ordinance, Cap. 200. In Yip Chiu-cheung v R (1994) 99 Cr App R 406 Lord Griffiths said (at page 410), ‗The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime which constitutes the necessary mens rea for the offence.‘

(2) Depending on the conspiracy alleged the judge will have to give directions to the jury as to the elements constituting the offence the subject of the conspiracy. In some cases the necessity to prove an agreement will render any direction concerning intention as an element of the substantive offence otiose.

(3) On the question of jurisdiction in respect of certain conspiracy offences undertaken in a different jurisdiction, see Criminal Jurisdiction Ordinance, Cap. 461.

(4) Where a conspiracy is alleged and the particulars of the offence assert a number of ingredients, for example, several false representations; or where there is charged a conspiracy to defraud two or more victims rather than just one, judges must before summing up consider the principles in Brown (Kevin) (1984) 79 Cr App R 115 and

Issued September 2013 12.4

HKSAR v Tai Chi-wan CACC 497 of 2006; but bear in mind that in many cases such a direction will be unnecessary and might serve only to confuse: see D [2001] 1 Cr.App.R. 194 and particularly R v Mitchell [1994] Crim.L.R. 66 at page 67 and R v K (2005) 1 Cr App R 25. See also Bruce ―Criminal Procedure, Trial on Indictment‖ V1 [1105]; Hancock [1996] 2 Cr App R 554; R v Fussell (1997) EWCA Crim 1764; R v de Mendonca [1997] Crim L R 812, and R v Roberts and Ors [1998] 1 Cr App R 441. It may be wise to discuss with counsel whether a specific direction is required to cater for the possibility of the failure of the prosecution to prove all specific representations, or an agreement to commit an offence against all victims.

(5) Single or Multiple Conspiracies. It may be that the prosecution has charged and alleges a single conspiracy, though on one possible view of the evidence there may have been a series of separate albeit similar conspiracies. In that case the jury should be directed that they should only convict of the charged conspiracy if they are sure there was in fact one single conspiracy (although people may have entered it and left at different times) and that the defendant was party to that conspiracy.

See R v Griffiths [1966] 1 Q.B. 589 (especially the example at 598) and R v Greenfield 57 Cr. App. R 849 and Archbold (2013) 33-52 to 58; Archbold Hong Kong (2013) 36-47 to 52; Blackstone (2013) A5.46.

Things said and done in the course/in furtherance of the conspiracy:

In a case in which the conduct of one defendant, A, is relied upon as evidence against another, B, the judge must be careful to identify into which category that evidence falls:

1. Where there is evidence against A of things said and/or done by him which implicates B, but that evidence although admissible against A is in B‘s case inadmissible hearsay. For example, where A keeps a private diary of events for his own purposes which relates to the conspiracy and which appears to implicate B, but the dairy is not kept in the course and furtherance of the conspiracy. Here see R v Blake and Tye (1844) 6 QB 126; R v Steward [1963] Crim LR 697; and R v Windass (1988) 89 Cr App R 258. In this case the evidence is altogether inadmissible against B, and the jury should be so directed.

2. Where there is evidence of things said and/or done by A in the course and furtherance of the conspiracy, which is relied upon as evidence against B. For example, in a drugs case where there is evidence of a recorded conversation between A and C, and A can be heard to instruct C to deliver the drugs to B; or where A is alleged to have kept contemporaneous accounting records of the conspiracy, which have not been seen by B, but which refer to e.g. drugs supplied to him and money received by him. In this case the evidence will only have been admitted if there is other evidence of the existence of the conspiracy charged and of some involvement by B in it: i.e. its admissibility is conditional:

Issued September 2013 12.5

See R v Donat (1986) 82 Cr App R 173 R v Jones & Ors (1997) 2 Cr App R 119 HKSAR v Booth [1998] 1 HKLRD 890 Article by Professor J.C. Smith ―More on Proving Conspiracy‖ [1997] Criminal Law Review page 333. R v Au Shui Yuen (1993) 2 HKC 219 HKSAR v Heung Yu Nam (1997) 3 HKC 632

Here if the evidence is admitted it is desirable to give a further direction, and it is suggested that on the current state of the authorities a warning along the following lines would be appropriate:

In this case the prosecution seeks to rely upon things said and done by A, not only against A but also as part of the case against B. These are (identify precisely the evidence in question).

B was not present when these things were said/or done, and was therefore unable to confirm or deny the truth [of what A said. Equally, he could not approve or disapprove of what A did].

For that reason you should treat this evidence with caution when you come to consider its effect on the case against B. Before you hold this evidence or any part of it against B you should consider all of the evidence on which the prosecution relies [and all of the evidence called on behalf of the defendant/s]. Then ask these questions. Are you sure:

1. That this evidence is true? And

2. That it amounts to evidence of things said or done by A in the course of and for the purpose of carrying out the conspiracy? *

3. Only where appropriate: That A in saying/doing what he did was not maliciously and falsely involving B in a conspiracy to which in truth he was not a party.

If the evidence passes these tests then you may take it into account when you consider the case of B, and it is for you to decide what weight you should give it. If it fails either/any test you must ignore it in B‘s case.

在此，當證據獲接納後，適宜給予進一步的指引，而根據現行的案例，建議依循以下的方向提出警告：

在本案中，控方不但試圖以 A 的言語和行爲指證 A 本人，並且試圖以這些言行，作爲指控 B 的案情的一部分，此等言行包括（清楚指出涉案的證據）。

由於 A 說出這些話 / 作出這些行爲時，B 並不在場，因此 B 無法確定或否認[A 所說的話 ] 是否屬實。 [ 同樣地，他也無從認同或否定 A 的行爲] 。

Issued September 2013 12.6

因此，當你們考慮這些證據對 B 的案情會造成甚麽影響時，必須謹慎處理。在裁定有關證據或其中任何部分可以作爲指證 B 的證據之前，你們必須考慮控方所依據的全部證據，[ 以及代表該名／各名被告人傳召的所有證據] 。之後回答以下的問題，你們是否肯定：

1. 這些證據是屬實的？以及

2. 這些證據構成 A 在實行串謀的過程中，以及為實行串謀的目的，而說出的話或作出的行爲的證據？*

3. 祗限適當時使用： A 所説的話 / 所作的行爲，並非是惡意及失實地要把 B 牽連入串謀罪之中，而 B 事實上並沒有參與其中。

如果這些證據通過上述各項驗證，你們就可以在考慮 B 的案情時，把這些證據納入考慮之列；至於這些證據的（份量）比重應有多少，則是由你們去作決定。如果這些證據未能通過其中／任何一項驗證，就 B 的案情而言，你們不得考慮這些證據。

* It may be helpful to provide the jury with an example of something said which is clearly said in the course of and for the purpose of carrying out a conspiracy, and something which is said but which conversely would not fulfil the criterion.

On evidence of acts and declarations, see:

Archbold Hong Kong (2013) 36-60 to 63 Archbold (2013) 33-63 to 69 Blackstone (2013) A5.60; F1.29; F16.77 to 83 Bruce & McCoy, Criminal Evidence in Hong Kong V [1102]-[1151] Phipson on Evidence 17th Edition 31-43 et seq.

Issued September 2013 13.1

II INTENTION, RECKLESSNESS AND CAUSATION 意圖、罔顧後果和因由

13. INTENTION 意圖

You must be sure that, when the defendant did the act, he intended [e.g. to kill the victim].

你們必須肯定，當被告人作出案中的行爲時，他有意圖[ 例如：殺害受害人] 。

Notes:

1. It is generally unwise to elaborate on the above simple direction on intent: see R v Woollin [1999] 1 Cr App R 8, HL and HKSAR v Lee Kwan Kong, CACC 198/2004 at paras. 47 & 48 (approved in FAMC 7 & 8 of 2006). In R v Moloney [1985] 1 AC 905 at 926 (to which reference was made in Nedrick) Lord Bridge said :

―The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury‘s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding. In trials of murder or wounding with intent, I find it very difficult to visualise a case where any such explanation or elaboration could be required, if the offence consisted of a direct attack on the victim with a weapon, except possibly the case where the accused shot at A and killed B, which any first year law student could explain to a jury in the simplest of terms. Even where the death results indirectly from the act of the accused, I believe the cases that will call for a direction by reference to foresight of consequences will be of extremely rare occurrence.‖ (Emphasis added.)

However, if you do consider it necessary, it could be along the following lines:

You decide intent by considering what the defendant did or did not do [and the effect of his actions or inaction] and by what he said or did not say. You should look at his actions before, at the time of and after (the alleged offence). All these things may shed light on his intention at the critical time.

你們決定被告人的意圖時，必須考慮他曾作出的行爲或不曾作出的行爲[ 以及他的作爲或非作為的影響]，並考慮他所說的話或不曾說的話。你們必須考慮他在（被控的罪行發生）之前、期間及之後所作出的行爲。這一切或可幫助你們了解在關鍵時刻他的意圖是甚麽。

Issued September 2013 13.2

2. In R v Woollin (above) which was a case of murder in which the defendant‘s foresight of death or really serious bodily harm was in issue, the House of Lords at pp 20 and 21 approved the following passage in the circumstances stated:

―Where the charge is murder, and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant‘s actions and that the defendant appreciated that such was the case.‖ [emphasis added]

Note that despite its omission in the passage cited, it is usual but not necessarily essential to insert ‗really‘ before ‗serious bodily harm‘. See R v Janjua and Choudhury [1999] 1 Crim App R 91. In R v Matthews and Alleyne (2003) 2 Cr App R 30 the Court of Appeal stressed that the defendant‘s appreciation of death or serious bodily harm as a virtual certainty does not constitute the necessary intention for murder, but is something from which that intention can be inferred. See also LAU Cheong v HKSAR [2002] 2 HKLRD 612.

3. If the evidence that the defendant‘s wish may have been something other than to cause the result in question, see R v Nedrick 83 Cr App R 267, R v Walter and Hayles 90 Cr App R 226 and R v Woollin (above).

4. It may be necessary to tell the jury that the prosecution only has to prove that the defendant had the necessary intention at the time of the alleged offence, that it need not have been a long-standing intent and that it is sufficient for it to have been formed in a matter of seconds, say in a sudden flash of temper.

5. Most case authorities are concerned with murder, but the same principles apply to all offences of specific intent: R v Moloney [1985] AC 905. See also R v Hancock [1986] A.C. 455.

With offences of general intent the simple direction above will almost always suffice.

Archbold Hong Kong (2013) 16-24 et seq. Archbold (2013) 17-34 et seq. Blackstone (2013) A2.4

Issued September 2013 14.1

14. INTENT/INTENTION - THE RELEVANCE OF DRINK/DRUGS

A When voluntarily (knowingly) consumed (see also Direction 52 below)

Crimes of Specific Intent

If, in order to establish the defendant‘s guilt, the prosecution has to prove he had a specific intention (for example, to cause grievous bodily harm) at the time of the relevant conduct, and there is evidence that the defendant had been consuming alcohol at or about the material time, that is a factor to which the jury must have regard when considering whether the prosecution has proved the necessary intent. The classic statement of the principle is to be found in Lord Lane‘s judgment in R v Sheehan and Moore [1975] 60 Cr App R 308 at 312. The relevant passage from the judgment serves as an excellent basis for a direction upon this topic:

―… in cases where drunkenness and its possible effect on the defendant‘s mens rea is in issue, we think that the proper direction to a jury is, first, to warn them that the mere fact that the defendant‘s mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent. Secondly, and subject to this, the jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent.‖

A direction based on this passage is at Direction 52 below.

See also R v Bowden [1993] Crim L R 380, and the commentary by Professor Smith at page 381.

Crimes of basic intent (e.g. assault and rape)

Where a drunken defendant would otherwise have had the intent/knowledge/foresight required for such an offence, the jury should be directed that proof of that being the case is sufficient and that it is not a defence for the defendant to say he would not have behaved in the way he did had he not been drunk, or failed to foresee the consequences of his act because he was drunk.

A direction based on Lord Lane‘s judgment is at Direction 52 below.

B When involuntarily (unwittingly) consumed

See R v Kingston [1995] 2 A.C. 355, HL

1. Involuntary intoxication (or a drugged state resulting from the involuntary ingestion of drugs), is not a defence to a criminal charge if the prosecution proves that the defendant had the necessary intent, albeit that intention arose as a result of his intoxication for which the defendant was not responsible.

Issued September 2013 14.2

2. The decision in Kingston (a case of indecent assault requiring a direction upon intention) considered that to allow involuntary intoxication to be an answer to a criminal charge would be to create a new defence in the common law and the court was not prepared to do that. It also thought in any event such a defence would be practically unworkable. The decision proceeded on the basis that ―the ingestion of the drug … brought about a temporary change in the mentality or personality of the respondent which lowered his ability to resist temptation so far that his desires overrode his ability to control them. Thus we are concerned here with a case of disinhibition. The drug is not alleged to have created the desire to which the respondent gave way but rather to have enabled it to be released.‖

Archbold Hong Kong (2013) 16-72 et seq. Archbold (2013) 17-102 et seq. Blackstone (2013) A3.15 et seq.

Issued September 2013 15.1

15. RECKLESSNESS / GROSS NEGLIGENCE - IN MANSLAUGHTER

It is not possible to provide a single standard specimen direction appropriate for all cases of involuntary manslaughter involving breach of duty. That is because of the enormous range of possible duties and types of breach and surrounding circumstances. (See the comments to this effect in R v Adomako 99 Crim App R 362; [1995] 1 AC 171, and R v Prentice [1994] QB 302, 322). Nevertheless a sample direction is provided at Direction 63A. It incorporates the elements of the offence as stated in Adomako and in R v Misra [2005] 1 Cr App R 328. In these cases it is vital for the judge to tailor the summing up according to the specific circumstances of the case. The following points should be noted:

1. Following the decisions of the Court of Appeal in Prentice and the House of Lords in Adomako it will now rarely be necessary for a manslaughter direction to make reference to the concept of recklessness. In Adomako the House of Lords gave guidance as to the correct approach to be taken in cases of this nature. In his speech at pages 369-370 Lord Mackay LC said: ‗The decision of the Court of Appeal (Criminal Division) in other cases with which they were concerned at the same time as they heard the appeal in this case indicates that the circumstances in which involuntary manslaughter has to be considered may make the somewhat elaborate and rather rigid directions inappropriate.‘ (This refers to the directions given in R v Lawrence [1982] AC 510.) He went on to say: ―I entirely agree with the view that the circumstances to which a charge of involuntary manslaughter apply are so various that it is unwise to attempt to categorise or detail specimen directions.‖

2. In any event it is desirable in a case such as this that the proposed direction should be discussed with counsel before final speeches.

3. In motor manslaughter cases also it appears that the Lawrence test is now replaced by that in R v G (2004) 1 A.C. 1034. But the issue is unlikely to arise. See Direction 19 below.

4. The jury has in essence to be told, when considering manslaughter by negligence, that before they may convict a defendant they must be sure:

(1) that he had a duty of care towards the victim such as doctor/patient or parent/child (see in this regard note 6);

(2) that he failed to do what in the circumstances he ought to have done [for the patient/child etc];

(3) that his failure was a substantial cause of the death of the [patient/child etc.]; and

(4) that the failure constituted gross negligence which the jury consider justifies a criminal conviction. (See also R v Khan (1998) EWCA Crim 971 and R v Yaqoob (2005) EWCA Crim 2169.

Issued September 2013 15.2

This breakdown of ingredients is not provided as a standard direction – ingredients (1) and (4) in particular, will require amplification according to the circumstances of the case, or it might on rare occasions be inappropriate to use the words ‗gross negligence‘ at all and to couch the direction in terms of recklessness (see note 5 below).

The classic distinction between gross negligence which gives rise to criminal liability on the one hand, and ordinary negligence which does not, is found in the judgment of Hewart CJ in R v Bateman (1927) 19 Cr App R 8, 11: ―… in order to establish criminal liability the facts must be such that in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such a disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.‖ See also R v Adomako at page 187.

5. It nonetheless remains open to judges to use the word ‗reckless‘ in its ordinary non-legal sense in directions under this head if that is what feels most appropriate in the case. The law seems to be that in cases where it is open for the jury to conclude the defendant consciously took an obvious risk then it may be appropriate to direct the jury by reference to ‗recklessness‘. How the ordinary connotation of ‗reckless‘ is explained will, again, depend on the facts of the case. In Adomako Lord Mackay said: ―In cases of criminal negligence involving a breach of duty it is a sufficient direction to the jury to adopt the gross negligence test … it is not necessary to refer to the definition of recklessness in Lawrence [1982] AC 510, although it is perfectly open to the trial judge to use the word ‗reckless‘ in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case.‖ See Blackstone (2013) B1.85 and R v Mark [2004] EWCA Crim. 2490.

6. Does the judge or the jury decide whether on the facts a duty of care has arisen? There has been some conflict on the authorities : see Khan (supra) and R v Singh (1999) Crim.L.R. 582 and the commentary to Khan in (1998) Crim.L.R. 830. But the position has been clarified by the decision in R v Evans (Gemma) [2009] 2 Cr App R 10, the effect of which has been summarised thus :

― The existence, or otherwise, of a duty of care or a duty to act is a question of law for the judge, whereas the question of whether the facts establish the existence of the duty is for the jury once they have been directed as to the law; whilst in simple cases it may be proper for a judge to direct the jury that the duty of care exists, in any case where the issue is in dispute, and therefore in more complex cases, assuming the judge had found that it will be open to the jury to find that there was a duty of care, or a duty to act, the jury should be directed that if the relevant facts are established, the duty arises in law… .‖

See Archbold (2013) 19-125.

Issued September 2013 15.3

It is for the judge to direct the jury what standard of care to apply and for the jury to decide whether that standard has been reached. In case of those professing a special skill and knowledge see Jackson and Powell on Professional Negligence, and the comments of Lord Hewart CJ in Bateman at pages 12-13. See also R v Kelly [2005] EWCA Crim. 1061 as to the breach of a statutory duty.

Archbold Hong Kong (2013) 20-114 to 120 Archbold (2013) 19-122 to 125 Blackstone (2013) B1.57 to 62

Issued September 2013 16.1

16. RECKLESSNESS - IN ASSAULT/OFFENCES AGAINST THE PERSON ORDINANCE, CAP 212

MALICIOUSLY – OFFENCES AGAINST THE PERSON ORDINANCE (SECTIONS 17 AND 19)

In most cases involving assault it will NOT be necessary to leave the issue of recklessness to the jury, see R v Nash (1991) The Times, 11 June. This should normally be done only when the word appears in the count, or when the circumstances of the particular case plainly call for such a direction. In many cases a direction on recklessness will only serve to confuse the jury, and in the event of a conviction will create a potential for difficulty in sentencing. Naturally, it is preferable that the position be clear before the case is opened to the jury; but in any event if the judge is of the view that such a direction is appropriate, or in case of any doubt, then it is desirable that the matter be broached with counsel before closing speeches.

The following directions comply with R v G (2004) 1 AC 1034 which departed from R v Caldwell (1982) AC 341 and removes the ―objective‖ element in recklessness brought into the common law by Caldwell. The second limb (as to reasonableness) established by R v G has been incorporated in these directions though it will rarely be a material issue. The separate limbs of R v G are set out in Direction 18 below. There is some doubt as to how far the ―subjective‖ principle established by R v G extends beyond the offence of criminal damage: See Blackstone (2013) A2.1. Although Lord Bingham in R v G, at para 28, expressly restricted himself to recklessness in the context of the law of criminal damage, English texts suggest that the subjective test is now for wider application (see Smith & Hogan Criminal Law 12th ed., p 109 and Archbold (2013) 17-50 and 17-51). Be that as it may, the principle as stated in R v G now apparently applies generally in Hong Kong‘s law: see SIN Kam Wah v HKSAR (2005) 8 HKCFAR 192.

In SIN Kam Wah Sir Anthony Mason NPJ in referring to the criticism of R v Caldwell which had, before R v G, been the leading case on recklessness in the common law said:

―Because these criticisms are soundly based, it is appropriate that this Court should take this opportunity of overruling R v Chau Ming Cheong (1983) HKC 68 and R v Dung Shue Wah (1983) 2 HKC 30 (the two cases which incorporated the principles of R v Caldwell in Hong Kong‘s law). Henceforth juries should be directed in terms of the subjective interpretation of recklessness upheld in R v G. So juries should be instructed that, in order to convict for an offence, it has to be shown that the defendant‘s state of mind was culpable in that he acted recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk. Conversely, a defendant could not be regarded as culpable so as to be convicted of the offence if, due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions.‖

Issued September 2013 16.2

A Common Assault

(a) In the (unusual) case where no physical force is actually applied

The mental element in the offence of assault is established where it is proved that the defendant intentionally or recklessly caused another to fear that he would be subjected to immediate and unlawful violence. It is therefore sufficient to prove that the defendant was reckless as to whether the complainant might fear that he was to be subjected to immediate and unlawful violence.

To prove recklessness you must be sure that the defendant realised that X might fear that he would then and there be subject to immediate and unlawful force and nonetheless went on and took that risk [when in the circumstances known to him it was unreasonable to do so.]

A 普通襲擊

( a ) 在（不常見的）沒有使用實際武力的情況下

如要證明罔顧後果，你們必須肯定：被告人意識到 X 可能懼怕自己當場會受到即時及非法的武力侵犯，但被告人仍不顧危險繼續行事；[ 而據他對當時情況的了解，他的行爲是不合理的] 。

(b) In the case where physical force is actually applied

The mental element in the offence of common assault is established where it is proved that the defendant intentionally or recklessly applied unlawful force to another person. The mental element in the offence of assault occasioning actual bodily harm is precisely the same. Whether actual bodily harm was ‗occasioned‘ (caused) is simply a question of causation and does not involve any consideration of recklessness, see R v Savage; (sub nom) DPP v Parmenter [1992] AC 699, HL.

To prove recklessness you must be sure that the defendant realised that X might be subjected to unlawful force (however slight) as a result of what he was about to do and yet took the risk that that might happen [when in the circumstances known to him it was unreasonable to do so.]

( b ) 在曾經使用實際武力的情況下

如要證明罔顧後果，你們必須肯定：被告人意識到他即將作出的行爲，可能使 X 受到非法的武力侵犯（無論如何輕微），但被告人卻在所不計，冒險行事；[ 而據他對當時情況的了解，他的行爲是不合理的] 。

Issued September 2013 16.3

B The Meaning of ‗Malicious‘ in Section 17 and 19 of the Offences Against the Person Ordinance, Cap 212 (Unlawfully and Maliciously Wounding or Inflicting Grievous Bodily Harm)

(a) ‗Malicious‘ (in this Ordinance) means either intentionally or recklessly see R v Cunningham [1957] 41 Cr App R 155; DPP v A [2001] Crim LR 140.

(b) ‗Recklessly‘ in this context means that the defendant foresaw the risk that the [in the case of section 17] or some [in the case of section 19] physical harm might result from what he was going to do and yet ignoring that risk he went on and did the act: see DPP v Parmenter [1992] 1 AC 699, HL (which now must be read in the light of Sin Kam Wah (supra)).

Before you may convict the defendant of this offence [under section 17] you would first have to be sure of the following matters:

1. that the injury X suffered amounted to really serious bodily harm;

2. that the defendant caused that injury suffered by X; and

3. that the defendant intended to cause really serious bodily harm to X or actually foresaw that his acts might cause really serious bodily harm to X and yet ignored that risk and went on with his actions [when in the circumstances known to him it was unreasonable to do so.] That is what is meant by the word ‗maliciously‘ in the indictment.

B . 《侵害人身罪條例》（第 212 章）第 17 條和第 19 條中‘ 惡意’ 的意思（非法及惡意傷害他人或對他人身體加以嚴重傷害）

在裁定被告人此項[ 根據第 17 條起訴的 ] 罪行的罪名成立之前，你們必須肯定下述事項：

1. X 所受的傷，乃真正嚴重的身體傷害；

2. 被告人導致 X 受傷；以及

3. 被告人蓄意導致 X 受到真正嚴重的身體傷害，或他實際上已預見自己的行爲可能導致 X 受到真正嚴重的身體傷害，但仍無視危險繼續作出他的行爲； [ 而據他對當時情況的了解，他的行爲是不合理的] 。這就是公訴書上 ‗ 惡意‘ 兩字的意思。

Before you may convict the defendant of this offence [under section 19] you would first have to be sure of the following matters:

1. that the defendant caused the wound suffered by X [or caused X really serious bodily harm]; and

2. that the defendant either intended to cause physical harm to X; or actually foresaw

Issued September 2013 16.4

that his act might cause physical harm to X, and yet ignoring that risk went on and did the act [when in the circumstances known to him it was unreasonable to do so.] This is what is meant by the word ‗maliciously‘ in the indictment. The prosecution does not have to prove that the defendant intended or foresaw the extent or the gravity of the injury caused by his actions.

在裁定被告人此項[ 根據第 19 條起訴的 ] 罪行的罪名成立之前，你們必須先肯定下述事項：

1. 被告人導致 X 受到傷害 [ 或導致 X 受到真正嚴重的身體傷害]；以及

2. 被告人蓄意導致 X 受到身體傷害，或他實際上已預見自己的行爲可能導致 X 受到身體傷害，但仍無視危險繼續下去，並作出有關的行爲； [ 而據他對當時情況的了解，他的行爲是不合理的] 。這就是公訴書上 ‘ 惡意’ 兩字的意思。控方無須證明被告人所造成的損傷的程度或嚴重性，是被告人蓄意造成或是他所預見的。

Note: Where an issue arises as to the assault being lawful (e.g. in self defence or as a result of mere accident) the Directions will have to be amended accordingly.

Archbold Hong Kong (2013) 16-35 and 16-39 Archbold (2013) 17-45, 19-223 and 19-261 Blackstone (2013) B2.12; B2.61

C The Relevance of Alcohol/Dangerous Drugs

(a) The fact that the defendant‘s voluntary consumption of alcohol (or dangerous drugs) prevented him (or may have prevented him) from foreseeing [the relevant risk] is no defence to a charge of assault (including battery), assault occasioning actual bodily harm or malicious wounding or inflicting grievous bodily harm (section 19). If the jury are sure that but for the drink/drugs he would have foreseen [the relevant risk] the ingredient of recklessness will have been established: R v Majewski [1977] AC 443, HL and R v Richardson and Irwin [1999] 1 Cr App R 392. See Archbold (2013) 17-52, 17-105 and 17-112, and the Directions at Direction 14 above and 52 below.

(b) As to the involuntary consumption of drink/drugs, see Archbold (2013) 17-104 and R v Kingston [1995] 2 AC 355 HL and the notes to Direction 14 above.

(c) As to the proof of ‗recklessness‘ if the defendant had voluntarily taken a drug which is not well known for being liable to cause unpredictability or aggressiveness, see R v Hardie [1985] 80 Cr App R 157, CA; Archbold (2013) 17-105.

(d) As to mistake of fact induced by drink/drugs, see Archbold (2013) 17-16.

Issued September 2013 17.1

17. RECKLESSNESS - IN RAPE - SEXUAL OFFENCES 罔顧後果－強姦案－性罪行

(First direct the jury in relation to the ingredients of the offence, and then where the issue is raised, that it is for the prosecution to make the jury sure that the defendant did not believe that the victim was consenting. See Direction on Rape 65 post.)

As a result of R v G [2004] 1 AC 1034, R v Caldwell [1982] AC 341 has been overruled. That is now recognised as the law in Hong Kong: SIN Kam Wah v HKSAR (2005) 8 HKCFAR 192 (see Direction 16 above).

In Sin Kam Wah Sir Anthony Mason NPJ said (at para. 44) :

―… Henceforth juries should be directed in terms of the subjective interpretation of recklessness upheld in R v. G. So juries should be instructed that, in order to convict for an offence under s.118(3)(a) of the Crimes Ordinance, it has to be shown that the defendant‘s state of mind was culpable in that he acted recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk. Conversely, a defendant could not be regarded as culpable so as to be convicted of the offence if, due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions.‖

Accordingly, the prosecution have to prove that the defendant actually appreciated a risk that the victim was not consenting and (unreasonably) carried on regardless. The standard direction has been amended accordingly.

The defendant was reckless as to whether Ms [X] consented to sexual intercourse if you are sure that he realised there was a risk that she was not consenting and carried on anyway [when in the circumstances known to him it was unreasonable to do so.]

Add where appropriate:

However, if due to his age or personal characteristics [give details] the defendant genuinely did not appreciate or foresee the risk that Ms [X] was not consenting to sexual intercourse, he was not reckless.

如果你們肯定，被告人意識到 [X] 女士有可能不同意進行性交，但被告人在此風險下仍然繼續與她性交，[ 而且據他對當時情況的了解，他繼續下去是不合理的 ] ，則被告人是罔顧 [X] 女士是否同意進行性交。

適當時加上：

但如果鑑於被告人的年齡或個人特徵 [ 述明詳情 ] ，被告人確實不知道或不可預見其行爲的風險，這個風險就是[X] 女士有可能不同意與他進行性交，則被告人並不屬於罔顧後果。

Issued September 2013 17.2

Note:

1. It is difficult to imagine the second limb of R v G, (above), (i.e. whether it was reasonable in the circumstances known to a defendant to take a risk of which he was aware) being an issue in any rape count. In the light of Sin Kam Wah, above, we have included that limb in parenthesis in the specimen direction to be used if the issues in the particular case so require. Judges should discuss with counsel in advance of speeches whether that aspect should be included in the direction.

2. In HKSAR v Li Kim Ching CACC 208/2006 it was held that the ―classic‖ formulation of recklessness such as was proposed by Lord Lane in R v Taylor 80 Cr App R 327 was already a subjective test which met the requirements of Sin Kam Wah : see also HKSAR v Wai Sze Lim CACC 442/2006. That direction, accordingly, is still good law in Hong Kong. It is as follows :

―The defendant was reckless if he did not believe that the woman was consenting and could not have cared less whether she was consenting or not but pressed on regardless.‖

See also HKSAR v Siu Tat Yuen [2007] 4 HKLRD 734.

3. For a full direction on rape see Direction 65.

4. In Attempted Rape - see R v Khan & Others (1990) 91 Cr.App.R 29; Archbold Hong Kong (2013) 16-47 and 21-28.

Where on the evidence there is room for a possible finding of a genuine mistaken belief that the victim was consenting ADD :

―If the defendant may genuinely have believed that [she] consented, although such belief may have been mistaken, then he is not guilty of rape. When you are considering whether he genuinely believed that [she] consented, you should have regard to the presence or absence of reasonable grounds for such belief together with any other relevant matters.‖

Note: In cases of rape as in others where the commission of the offence (as opposed to the identity of the offender) is in issue judges should avoid the word ‗victim‘ since it prejudges the issue.

Alcohol - Voluntary intoxication and rape:

If you are sure that the prosecution has established that the defendant was reckless then the fact that this was or may have been due to his voluntary consumption of alcohol is no defence.

Issued September 2013 17.3

飲酒－自願的昏醉與強姦：

如果你們肯定控方已經證實被告人罔顧後果，即使被告人是因爲，或可能是因爲曾經自願地飲酒而導致他罔顧後果地行事，這事實也不可作爲他的抗辯。 and where appropriate

If you come to the conclusion that because of the drink he had consumed the defendant did not or may not have applied his mind at all to the question of whether (Ms X) was consenting - in other words, if you are sure that because of the drink he had voluntarily consumed his mind on this topic was or may have been virtually a blank, then he will nevertheless have been reckless if you are sure that had he been sober he would have realised that there was such a risk that she was not consenting.

並在適當時加上：

如果你們的結論是被告人飲酒後，他完全沒有，或可能沒有考慮到究竟（ X 女士）當時是否同意進行性交－換言之，如果你們肯定他因曾自願地飲酒，以致其腦海對這問題根本是，或可能是一片空白；在此情況下，如果你們肯定假如他當時清醒，他會意識到風險的存在－即（ X 女士）有可能不同意進行性交，則被告人仍屬罔顧後果。

Archbold Hong Kong (2013) 16-86 Archbold (2013) 17-102 to 116 (particularly 17-116) Blackstone (2013) A3.15 to 16

Mistake of fact as a result of the voluntary consumption of alcohol. (Additional direction, if the issue arises)

Drink can of course seriously affect a person‘s judgment. A person can misinterpret a situation; he can misjudge the circumstances; he can make a mistake. If you come to the conclusion that the defendant mistakenly believed that [Ms X] was consenting to having sexual intercourse with him, then you must acquit him unless you are sure that his mistaken belief was wholly due to his [voluntary] consumption of alcohol. If it was, then he will have been reckless and you must convict.

自願飲酒導致事實上的錯誤（附加的指引，在有關爭論點出現時使用）

酒精當然可以嚴重地影響一個人的判斷。任何人均可對其處境產生錯誤的理解，對環境產生錯誤的判斷，也可以犯錯誤。如果你們的結論是被告人錯誤地相信[X 女士] 同意與他進行性交，則你們必須裁定他無罪；但如果你們肯定被告人完全是因爲曾經 [ 自願地] 飲酒，才會錯誤地相信 [X 女士] 同意進行性交，在此情況下，他即屬罔顧後果，而你們則必須裁定他罪名成立。

Issued September 2013 17.4

Archbold Hong Kong (2013) 16-13 Archbold (2013) 17-16 Blackstone (2013) A3.17 and A3.69

(a) Involuntary intoxication

See R v Kingston [1995] 2 A.C. 355, HL.

Archbold Hong Kong (2013) 16-73 Archbold (2013) 17-104 Blackstone (2013) A3.16

(b) Drugs

For ‗dangerous‘ controlled drugs (cannabis, heroin and the like) the position is the same as for alcohol. However, where it is said that the presence (or absence) of a medically prescribed drug has had disinhibiting consequences, see:

R v Bailey [1983] 1 WLR 760; R v Hardie [1985] 80 Cr App R 157.

Archbold Hong Kong (2013) 16-72 Archbold (2013) 17-52 and 17-102 Blackstone (2013) A3.16

Issued September 2013 18.1

18. RECKLESSNESS – IN CRIMINAL DAMAGE AND ARSON CRIMES ORDINANCE CAP 200 SECTION 60(1) AND (2) 罔顧後果－刑事毀壞和縱火案《刑事罪行條例》 ( 第 200 章 ) 第 60(1)及 (2)條

Since the decision in R v G [2004] 1 AC 1034 which has now been followed in Hong Kong, it may be safely taken that R v Caldwell (1982) AC 341 has been overruled. See SIN Kam Wah v HKSAR (2005) 8 HKCFAR 192 per Sir Anthony Mason NPJ at Directions 16 and 17 above.

On that basis the standard directions have been altered as follows:

A Crimes Ordinance Cap 200 section 60(1)

The prosecution will have proved that D was reckless if, having regard to all the available evidence, you are sure:

1. that he was aware of a risk that [property] would be [destroyed][damaged]; and went ahead and [state act]

2. that in the circumstances which were known to him it was unreasonable for him to take that risk.

A 《刑事罪行條例》 ( 第 2 0 0 章 ) 第 6 0 ( 1 ) 條

在考慮過現有全部的證據後，如果你們肯定：

1. 被告人知道[ 財物] 有受到[ 摧毀][損壞] 的危險，但仍繼續行事，作出[ 述明其行爲] ；

2. 而根據他對當時情況的了解，他如此冒險行事是不合理的，

則控方已證明被告人是罔顧後果的。

Note: There is no need to qualify, the word ‗risk‘ by adjectives such as ‗obvious‘ or ‗significant‘. See R v Brady [2006] EWCA Crim 2413; [2007] Crim L.R. 564.

Archbold Hong Kong (2013) 24-1 to 10 Archbold (2013) 23-1 to 12 Blackstone (2013) B8.9

Issued September 2013 18.2

B Crimes Ordinance Cap 200 section 60(2)

The prosecution will have proved that D was reckless as to whether the life of [X] would be endangered if, having regard to all the evidence, you are sure:

1. that he was aware of a risk that the [destruction][damage] would endanger the life of [X]; and went ahead and [state act]

2. that in the circumstances that were known to him it was unreasonable to take that risk.

B 《刑事罪行條例》 ( 第 2 0 0 章 ) 第 6 0 ( 2 ) 條

在考慮過現有全部的證據後，如果你們肯定：

1 . 被告人知道 [ 摧毀][損壞] 該財產可能會危害 [X]的生命，但仍繼續行事，作出[ 述明其行爲] ；

2. 而根據他對當時情況的了解，他如此冒險行事是不合理的，

則控方已證明被告人罔顧[X]的生命是否會受到危害。

Archbold Hong Kong (2013) 24-11 to 18 Archbold (2013) 23-13 to 23 Blackstone (2013) B8.16

Notes:

1. Where an attempt to cause damage is charged, mere recklessness is insufficient, see Archbold Hong Kong (2012) 24-10; Archbold (2012) 23-12.

2. For the relevance of intoxication (drink/drugs) see notes below.

3. For the appropriate direction in a case in which a defendant causes damage by an act of which he is initially unaware, but upon becoming aware of his act and continuing events as a result of it, he does nothing to prevent or reduce the risk of damage or destruction - see R v Miller [1983] 2 AC 161 (a case where a vagrant unwittingly started a fire). The suggested direction is in Archbold (2012) 23-10.

4. See Direction for Arson at 59 post.

Alcohol/Drugs

Notes:

1. Self induced intoxication is no answer to an allegation of criminal damage whether simple, aggravated or by fire if the mental element relied upon is recklessness: see R v

Issued September 2013 18.3

Caldwell [1982] AC 341 at 356, HL (still good law in this regard). In other words, if due to self induced intoxication the defendant was or may have been unaware of the risk, that constitutes no defence. The position is the same if the defendant voluntarily consumed dangerous drugs: see R v Majewski [1977] AC 443, HL. Aliter where the drug does not fall into that class: see R v Hardie [1985] 80 Cr App R 157. (In relation to involuntary intoxication, see R v Kingston [1994] 3 All ER 353, HL): see Archbold Hong Kong (2012) 24.9; Archbold (2012) 23-11.

2. As to the position where the mental element relied upon is ‗intention‘ see Direction 14.

Archbold Hong Kong (2013) 16-74 Archbold (2013) 17-105 and 23-11 Blackstone (2013) A3.15 to 22

Issued September 2013 19.1

19. RECKLESSNESS - DRIVING

By section 2 of Ordinance 1 of 2000, the Road Traffic Ordinance Cap 374 was amended so as to remove the offences of reckless driving causing death and reckless driving (previously section 36 and 37 of the Ordinance) and replace them with new offences of causing death by dangerous driving (section 36) and dangerous driving (section 37).

It is therefore most unlikely that there remain any offences under the old provisions yet to be tried. Prosecutions of dangerous driving offences will be governed by the statutory definition of what amounts to dangerous driving in section 36(4) and (5) and section 37(4) and (5). The two definitions are identical and are as follows:

―(4) A person is to be regarded as driving dangerously within the meaning of subsection (1) if—

(a) the way he drives falls far below what would be expected of a competent and careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

(5) A person is also to be regarded as driving dangerously within the meaning of subsection (1) if it would be obvious to a competent and careful driver that driving the motor vehicle concerned in its current state would be dangerous.‖

See Archbold Hong Kong (2013) 34-13

Issued September 2013 20.1

20. CAUSATION 因由

In every ―result‖ crime causation is by definition an element of the offence. Although the issue of causation often arises in the context of homicide it is relevant to all result crimes. In many cases it is not a contentious issue because it is not disputed.

Even in homicide cases it is rarely necessary to give the jury any direction on causation as such. In most cases it will not be a real issue and all that then needs to be said is that the prosecution must make the jury sure that the act of the defendant caused death, but that that is not a disputed issue in the case and that it is one which the jury might have little difficulty in resolving.

If causation is a live issue, the following contains directions from which some paragraphs might be utilized or adapted as appropriate to the particular case (the specimen direction uses murder/manslaughter as an example).

The law is that before you may find the defendant guilty of [murder/manslaughter] one of the matters about which you must be sure is that the [defendant‘s act][the act to which the defendant was party] was a significant cause of [the death of X].

It is not necessary for the prosecution to prove that the [defendant‘s] act was the only cause of death. Nor is it necessary for the prosecution to prove that the act was the main cause of death. But the prosecution must prove that the act was one of the causes of the death of X and was one that was more than a minimal cause. So if you were to find that that the defendant‘s act contributed only in some trivial way in causing death, or that that might be the case, then the defendant must be acquitted of [murder/manslaughter of X]. [Furthermore, it suffices for the prosecution to prove that the act accelerated death. If the act brought forward the time of death, the law regards the act as a cause of death, so long however as the act of the defendant contributed to death in more than a trivial or minimal way.]

What is meant by ‗a trivial or minimal way‘? We are all going to die sometime. Killing is a mere acceleration of death. A factor which produces a trivial acceleration of death is said not to be a cause of death. So if the prosecution establishes a cause of death which is only a trivial acceleration of, or a trivial contribution to, the deceased‘s death, then the prosecution has not proved that the defendant committed an act that was a cause of death.

(Where the egg-shell skull situation arises, in whatever manifestation) It has been suggested to you that [the defendant has been very unlucky because, unbeknown to him, the deceased suffered from …]. The rule is that an accused takes his victim as he finds him. So, if there is something unusual about the victim or he has some particular characteristic such that the consequence of the defendant‘s act is more serious than could have been foreseen, this is irrelevant to the issue of whether the defendant‘s act was a cause of death. In other words, if you are sure that the defendant‘s act was a cause of death, the fact that another person, or even most other people, would not have died as a result of that act is irrelevant to the issue of causation which you have to try. This is so even if the unusual or particular characteristic is one about which the defendant was unaware.

Issued September 2013 20.2

(Where it is suggested that the defendant‘s act was not itself the very act which caused death - e.g. a passenger in a moving vehicle suffering injury when escaping from an assault by the defendant) If a person dies as the result of some act (Act A) which would not have occurred but for the act of the defendant, the defendant‘s act is still a cause of death if (Act A) was a natural consequence of the defendant‘s act. In other words, it is enough, in such circumstances, if the prosecution proves that the death was a natural consequence of the defendant‘s act. On the other hand, if there was, or may have been, an intervening act or event, independent of any act of the defendant, which intervening act caused the deceased to die that day in the way he did, then the prosecution has failed to prove that the defendant‘s act was a cause of the deceased‘s death.

法律規定，在你們裁定被告人 [ 謀殺罪／誤殺罪] 的罪名成立之前，有一點你們必須肯定，那就是[ 被告人的行爲 ][被告人有份參與的行爲 ] ，是導致[X 死亡] 的重要因由。

控方無須證明[ 被告人的 ] 行爲是導致 [X 死亡] 的唯一因由，也無須證明該行爲是導致[X 死亡] 的主要因由，但控方必須證明該行爲是導致 [X 死亡] 的其中一項因由，而且不祇是一項毫不重要的因由。因此假如你們裁斷被告人的行爲，對促成[X] 的死亡，祇起了微不足道的作用，或可能祇起了微不足道的作用，則你們必須裁定被告人 [ 謀殺／誤殺 X]的罪名不成立。[ 此外，如果控方可以證明被告人的行爲加速了 X 的死亡，則已經足夠。如果被告人的行爲令 X 死亡的時間提早了，祇要被告人的行爲對促成 X 的死亡，具有並非微不足道或毫不重要的作用，則法律仍視被告人的行爲是導致死亡的因由。]

甚麽是‘ 微不足道或毫不重要的作用 ’ 呢？所有人都會有死亡的一天，而殺人祇是加速人的死亡而已。某一因素如祇是微不足道地加速了死者的死亡，則該因素算不上是死亡的因由。因此，如果控方證實某一死亡的因由，對加速或促成死者的死亡，祇具有微不足道的作用，則控方並未能證明被告人的行爲是死者死亡的因由。

（如果涉及所謂頭骨如蛋殼般脆弱的情況，不論這情況怎樣出現）之前已經向你們指出，[ 被告人非常倒霉，因爲他有所不知，死者原來患有…]。法律的原則是，被告人不能以不知受害者狀況特殊而逃避責任。因此，如果受害人有些不尋常之處，或有某些個人的特殊之處，以致被告人的行爲在受害人身上做成未能預見的更嚴重後果，這一點與被告人的行爲是否屬導致死亡的因由這項爭論點，並不相關。換言之，如果你們肯定被告人的行爲是導致死亡的因由，即使事實上另一人，甚至其他大多數的人均不會因該行爲而死亡，這事實與你們正在審理的因由這項爭論點，仍是不相關的。另外，即使被告人不知道死者有不尋常或某一特殊之處，情況也是一樣。

（如果有人指稱被告人的行爲本身並非是導致死亡的行爲－例如，被告在行駛中車輛上要襲擊某乘客，而該乘客為了逃脫才受傷）當有人因某些行爲（行爲 A ）而死亡，若果不是被告人所作的舉動，

Issued September 2013 20.3

行爲 A 就不會發生，如果（行爲 A ）是被告人舉動的自然後果，則被告人的行爲仍屬導致死亡的因由。換言之，在此情況下，如果控方能夠證明死者之死是被告人行爲的自然後果，就已經足夠。反過來說，如果期間出現了，或可能曾出現獨立的干預行爲或事件，是與被告人的舉動無關的，而該干預行爲導致死者在當時的情況下死亡，則控方未能證明被告人的行爲是導致死者死亡的因由。

Archbold Hong Kong (2013) 20-12 et seq. Archbold (2013) 19-6 et seq. Blackstone (2013) A1.25 et seq. Smith & Hogan 12th Edition page 74 et seq.

Issued September 2013 21.1

III EVIDENCE 證據

21. CIRCUMSTANTIAL OR INFERENTIAL EVIDENCE 環境證據或推論證據

In most cases in which the prosecution is relying on circumstantial or inferential evidence in whole or in part it is unnecessary to give the jury any special direction, so long as the jury are directed that they may not convict unless they are sure of guilt.

See Tang Kwok Wah v HKSAR [2002] 5 HKCFAR 209; the CFA approved the principle enunciated in Mcgreevy v D.P.P [1973] 57 Cr.App.R. 424 as an authoritative and correct statement of the law and applied in Hong Kong in Lam Tsz Wah v The Queen [1984] HKLR 54; R. v Yu Wai Chun & Another (unrep., Crim.App.No. 179 of 1987, [1987] HKLY 182); R v Pang Shun Yee & Others [1988] 2 HKLR 146; R v Chan Ho Kuen & Another [1988] 2 HKLR 334; The Queen v Tsao Wing Tak [1989] 1 HKLR 285; R v Chua & Another [1993] 1 HKCLR 272, [1993] 2 HKC 35.

Sir Anthony Mason p.228I-J §66

―… There is no rule of law or rule of practice that requires the giving of a direction to the jury in terms of Lord Diplock‘s statement in Kwan Ping Bong & Another v. The Queen [1979] HKLR 1 in cases in which the prosecution is relying on circumstantial or inferential evidence to establish the accused‘s guilt or an essential element in the offence charged. No distinction in principle can be drawn in this respect between cases in which the prosecution is wholly circumstantial and cases in which the prosecution seeks by inference to establish an essential element in the offence.‖

The following direction may be appropriate where there is no direct evidence but the prosecution case is complicated and made up of a number of pieces of evidence. In most cases it may be that no direction is necessary. In other cases it may be that the entire direction need not be given. In cases of difficulty or where much has been made in argument of the fact that the case is ―only circumstantial‖ it may be sensible to give the full direction.

Circumstantial evidence :

Reference has been made to the type of evidence which you have received in this case, and it has been labelled ‗circumstantial evidence‘, and the point has been made that there is no direct evidence which proves the defendant guilty of this offence. The position is this :

Sometimes a jury is asked to find some fact proved by direct evidence. For example, if there is reliable evidence from a witness who actually saw a defendant commit a crime; if there is a video recording of the incident which plainly demonstrates his guilt; or if there is reliable evidence of the defendant himself having admitted it, these would all be good examples of direct evidence against him.

Issued September 2013 21.2

On the other hand it is often the case that direct evidence of a crime is not available, and the prosecution relies upon circumstantial evidence to prove guilt. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime

[It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would be an unusual case indeed in which a jury can say 'We now know everything there is to know about this case'. But the evidence must lead you to the sure conclusion that the charge which the defendant faces is proved against him.]

Circumstantial evidence can be powerful evidence, indeed, it can be as powerful as, or even more powerful than, direct evidence, but it is important that you examine it with care — as with all evidence — and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt, or whether on the other hand it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the prosecution case.

Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, and neither the prosecution, the defence, nor you should do that.

環境證據：

之前曾經提及，你們在本案中接獲的證據，其中一類稱爲‘ 環境證據 ’。此外，之前也曾向你們指出，本案中沒有直接的證據可以證明被告人干犯了此罪行。就此而言：

陪審團有時可以根據直接的證據來裁斷某些事實。舉例説，如案中的證人作出可靠的證據，說他曾目擊被告人犯罪；或事件有錄影紀錄，清楚證明被告人犯罪；或被告人作出可靠的證據，承認自己曾犯的罪行，這些都是很好的例子，説明甚麽是指證被告人的直接證據。

另一方面，很多罪行都缺乏直接的證據去證明，而控方可以依賴環境證據以證明罪行。簡單來說，控方依據與罪行有關和與被告人有關的各種環境情況而指出，當併合地考慮，便可憑這些證據達至一個肯定的結論，就是被告人是干犯了該罪行的人。

[ 這些證據無須為案中提及的每一條問題提供答案。你們或會認爲，甚少陪審團能夠説：‘我們知道與本案有關的一切事情’。但這些證據必須能夠令你們達致一個肯定的結論，就是控方已經證實了被告人被控的罪行。]

環境證據可以是有力的證據，而實際上，環境證據可以與直接證據一樣有力，甚至較之更爲有力，但重要的是你們必須小心審視環境

Issued September 2013 21.3

證據－正如審視所有證據一樣－並考慮控方賴以證明其案情的證據究竟是否可靠，以及有關證據是否能夠證明被告人的罪責，或者反過來說，有關證據是否揭示任何其他的情況，具有或可能具有充分的可靠性和分量，足以使人對控方的案情產生懷疑，甚至推翻控方的案情。

最後，你們必須小心區分，甚麽是根據可靠的環境證據，甚麼是揣測而達致的結論。對案件作出揣測，與猜想沒有分別，也等同於沒有充分的證據而憑空捏造一些理論；這是控方、辯方和你們均不應該做的事。

And/or : Inferences :

Of the exceptional circumstances in which a special direction on the drawing of inferences may be desirable or even necessary see Bokhary PJ in Tang (supra) at paragraph 16 :

―… No question of giving such a direction even arises where all that the jury is really being invited to do is to assess a witness's credibility and reliability in the light of other evidence. No such question arises unless the jury is being invited to find the prosecution's case or a part of it proved by or partly by the drawing of inferences from primary facts. If the jury is being asked to do that, then the trial judge should give consideration to whether the jury would, in all the circumstances, be assisted by a special direction. The trial judge should, at the same time, also carefully consider the risk that the special direction might confuse the jury having regard to the issues which they had to decide, the rest of the evidence in the case, and the other directions which the jury will be given. On this last point I would emphasise that the jury must not be left with the impression that the standard of proof varies depending on whether direct or circumstantial evidence is concerned‖.

You are entitled to draw inferences — in other words, if you find certain facts proved, you are entitled to infer the existence of other facts. But you may only do so if that inference is the only reasonable inference to draw from the proved facts. So, if from a set of facts which you find proved there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference. [In this particular case, the prosecution says that there is direct evidence that (specify one or a number of primary facts which the prosecution say are clearly shown) and the prosecution says that the only reasonable inference to draw from those facts is that …. On the other hand the defence says that although that might be one inference which could be drawn, it is not the only reasonable inference to draw; and that another inference one might reasonably draw is that ….]

Issued September 2013 21.4

推論：

你們有權作出推論－換句話說，如果你們裁斷控方已經證明了若干事實，你們有權可以推論另一些事實的存在。但你們作出的推論，必須是根據已證明的事實所能得出的唯一的合理推論。因此，如果你們裁斷若干事實已獲證明，而根據此等事實既可以得出對被告人不利的合理推論，也可以得出對他有利的合理推論，則你們不得作出對他不利的推論。[ 在本案中，控方指稱案中有直接的證據（述明控方所指已獲明確證實的一項或數項基本事實），而控方說根據這些事實，唯一的合理推論是 … 。反過來說，辯方指雖然該推論或許是可以得出的推論之一，但卻不是唯一的合理推論，而另一合理推論可以是… 。 ]

Archbold Hong Kong (2013) 10-3 Archbold (2013) 10-3 Blackstone (2013) F1.18 Bruce & McCoy, Criminal Evidence in Hong Kong I [52] et seq. and III [154] et seq.

Issued September 2013 22.1

22. SIMILAR FACTS 類似事實

The following specimen directions are designed to be of assistance in three ‗classic‘ similar fact situations. In DPP v P [1991] 2 AC 447; 93 Cr App R 267 Lord Mackay LC said (page 279)

―Once the principle has been recognised that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises demonstrates that there is no single manner in which this can be achieved.‖

The directions below involve illustrations of specific offences. They do not cover all similar fact situations. They are given by way of general guidance only, and must of course be carefully adapted to suit the needs of each individual case. In HKSAR v Zabed Ali [2003] 2 HKLRD 849 the CFA approved of the statement in Archbold (2003) 13-41 of the necessity for the jury to be given an adequate direction in respect of such evidence, if admitted:

―… the jury should be directed as to the matter in issue to which such evidence might be relevant and how it might be relevant. And the jury should be told that the fact that the accused has a bad character or the propensity as shown by such evidence does not mean he is guilty of the offence charged. …‖

Evidence led in previous trials where a defendant was acquitted may be admissible in a subsequent trial of that defendant as ‗similar fact‘ evidence : R v Z [2000] 2 Cr App R 285.

A Where there is no direct evidence that the defendant committed the offence charged or any of the ‗similar offences‘ (as in the cases of Makin v Attorney General for New South Wales [1894] AC 57 PC and R v Smith 11 Cr App R 229)

There is no direct evidence that the defendant [killed A or that he did so with intent to kill or cause him really serious harm]. There is evidence that he had the opportunity to do so, but that, in itself, is far from sufficient to enable you to be sure that he did.

You have, however, heard evidence suggesting the commission of [a number of] other similar offences, all of which the defendant had the opportunity to commit.

If (where it is not admitted) you are sure that the events to which the witnesses have testified took place, you must look at the whole of this evidence and ask yourselves: is the relationship between the circumstances of these offences/occurrences (eg in time, place and (... state other circumstances highlighting in particular unusual characteristics)) so close that you are sure that they must be a series of similar offences committed by the same person.

If that is so, looking at the case against this defendant is it possible that he can have an innocent explanation for the fact that [all of those bodies of children were found buried in gardens of houses in which he had carried on a business of fostering children] [three women whom he had married under false names had all made wills in his favour and drowned in their baths shortly afterwards]; or is the only reasonable explanation that these [children]

Issued September 2013 22.2

[women] were killed by the defendant [or with his assistance or encouragement]?

If, but only if, you are sure that there is no credible innocent explanation you may take the whole of this evidence into account in deciding whether you are sure that [the defendant killed, or was a party to the killing with intent of A]. Remember that it is for the prosecution to prove that there is no credible innocent explanation, and not for the defendant to prove that there is.

A 凡沒有直接的證據證明被告人干犯其被控的罪行或任何‘類似的罪行 ’ （例如 Makin v Attorney General for New South Wales [1894] AC 57 PC 和 R v Smith 11 Cr App R 229 等案件）

本案中沒有直接的證據，證明被告人[ 殺害了 A，或他這樣做時，他的意圖是殺害 A 或使 A 受到真正嚴重的傷害 ] 。案中證據顯示，他當時曾有機會這樣做，但單是這一點遠不足以令你們肯定他曾經這樣做。

然而，你們已經聽取了其他 [ 若干項 ] 類似罪行的犯罪證據，這些罪行均為被告人有機會干犯的罪行。

（凡事件未獲承認）如果你們肯定證人在他們的證供中所述的各項事件確實曾經發生，你們必須對這些證據作出全面的考慮，然後回答以下問題：這些罪行 / 事件發生的環境情況（例如：時間、地點以及（ … 述明其他的環境情況，特別強調不尋常之處））是否非常相近，以致你們肯定這些罪行必是由同一人干犯的一連串罪行。

如果答案是肯定的話，你們須考慮控方賴以指證被告人的案情，然後決定就有關事實 [ 即是/ 例如：所有孩子的屍體，都是在他之前經營的兒童之家的院舍裏被發現埋藏在花園内 ][他之前用假名與三名女子結婚，她們立下以他為受益人的遺囑後不久便在家中浴缸内溺斃 ]，被告是否有可能有他是清白的解釋；抑或是唯一的合理解釋就是這些[ 孩子][女子] 均是被告人所殺， [ 或是：在他的協助或鼓勵下 ] 被殺。

如果你們肯定並沒有可信的解釋以示被告人是清白的，也祗有在此前提下，你們才可以把這些證據全部納入考慮之内，從而決定你們是否肯定[ 被告人殺害 A ，或被告人夥同其他人蓄意殺害 A]。請記住，控方必須證明並沒有可信的解釋以示被告人清白；被告人無須證明他有可信的解釋以示自己無罪。

Issued September 2013 22.3

B Where there is no direct evidence that the defendant committed the offence charged but there is independent evidence that he committed other ‗similar offences‘ (as in R v Straffen 36 Cr App R 132 )

There is no direct evidence that the defendant [killed A or that he did so with intent to kill or cause really serious harm]. However, there is [evidence that] [the defendant has admitted that] he killed B and C. You have also heard evidence as to the circumstances in which those offences were committed.

The prosecution say that the circumstances of the offence which is presently charged and which you must decide so closely resemble those of the other [two] [earlier] [later] offences that the only reasonable conclusion is that all three offences are the work of one person, and that it therefore follows that the defendant is guilty of the offence charged. (Here state the circumstances). You must therefore consider three questions:

1. Are you sure that the defendant committed offences B and C? If you are not sure of that, the evidence relating to those offences is of no value, and you must ignore it. If, however, you are sure that he did commit these offences, go on to consider:

2. Are you sure that the circumstances of those offences were as alleged by the prosecution? If you are not sure of that ignore them. Equally if you are not sure that any particular alleged circumstance existed, ignore it. If you are sure that all, or some of those circumstances existed, go on to consider :

3. Are you sure that the circumstances in which offences B and C were committed so closely resemble the circumstances which you are sure existed in the present case that you can have no doubt that the three offences must have been the work of one person ie, the defendant? [It is suggested on behalf of the defendant that it is possible that the resemblance between the circumstances of these offences might be purely coincidental. If you think that there is any realistic possibility that the resemblance between the circumstances of the offences might be no more than a coincidence, and that the offence might have been committed by someone else, the evidence is of no value and you must ignore it.]

B 凡沒有直接的證據證明被告人干犯其被控的罪行，但有獨立的證據證明他干犯其他‘類似的罪行’（正如 R v Straffen 36 Cr App R 132 一案）

本案中沒有直接的證據證明被告人[ 殺害了 A，或他這樣做時，他的意圖是殺害 A 或使 A 受到真正嚴重的傷害 ]。但是，本案中 [ 有證據顯示][被告人承認他 ] 殺害了 B 和 C。你們也已經聽取了那些罪行發生時的環境情況的證據。

控方稱，被告人被控的罪行，即你們正在審理的罪行，其發生的環境情況，與另外[ 兩項][較早][較後] 的罪行發生的環境情況非常相近，以致唯一的合理結論就是三項罪行全是同一人所爲，因此就其被控的罪行而言，被告人的罪名成立。 ( 在此述明罪行的環境情況 )。

Issued September 2013 22.4

你們因此必須考慮以下三個問題：

1. 你們是否肯定被告人干犯罪行 B 和 C ？如果你們不肯定的話，則有關這些罪行的證據便沒有任何價值，而你們不得予以考慮。然而，如果你們肯定被告人曾干犯這些罪行，請繼而考慮以下問題：

2. 你們是否肯定，這些罪行發生的環境情況正如控方所指稱的一樣？如果你們不肯定的話，就不得予以考慮。同樣地，就控方所指稱的環境情況而言，如你們對其中任何一點未能肯定，則不得予以考慮。如果你們肯定所有或其中部分的環境情況是存在的，請繼而考慮以下問題：

3. 你們是否肯定干犯罪行 B 和 C 的環境情況，與本案中你們肯定的環境情況非常雷同，以致你們毫不懷疑，三項罪行必定是同一人所為，即被告人所為？ [ 代表被告人的律師提出，各項罪行的雷同之處可能純屬巧合。如果你們認爲各項罪行發生的環境情況有雷同之處，實際上可能祗是巧合，而本罪行可能是由另一人干犯，則有關證據便沒有任何價值，你們不得予以考慮。]

―… And the jury should be told that the fact that the accused has a bad character… as shown by such evidence does not mean he is guilty of the offence charged. …‖ HKSAR v Zabed Ali (supra)

The judge should point out to the jury that the evidence is admitted before them only because it goes beyond mere evidence of disposition, and should tell them that if they think it merely contains evidence of disposition they should not take any notice of it: R v Rance & Herron (1976) 62 Cr App R 118, 122 interpreting Lord Hailsham in Boardman [1975] AC 421, 453; though this may not always be necessary.

Normally juries are not told about any convictions a man has because there is a grave danger that they will think that he is more likely to commit another offence or the present offence with which he is charged. It cannot mean that, and it would be illogical and unfair to make such an assumption against any man. The only reason you heard about these other offences in this case was because the prosecution seeks to say that the coincidences between the offences, and the circumstances in which they were allegedly committed, were so strong that they went in proof of the defendant‘s guilt of the offence charged in this indictment. Therefore, if you are not sure that the circumstances of the offence were as alleged by the prosecution or, even though you are sure of that, you are not sure that the resemblance of circumstances was such that the offences must have been the work of the defendant, then you must ignore the evidence of those other offences, and it is important that you then put them out of your mind for all purposes and reject any notion that the other offences nonetheless somehow prove that the defendant has a tendency to commit this type of offence and must therefore be guilty of the offence now charged.

Issued September 2013 22.5

在正常的情況下，陪審團不會獲告知任何人的定罪紀錄，因爲倘若陪審團得悉有關紀錄，將會出現重大的危險，就是陪審團會認爲他較有可能再犯另一罪行，或干犯目前被控的罪行。這當然不是如此；再者，對任何人作出這樣的假設，都是不合邏輯和不公平的。你們在本案聽到控方提及其他的罪行，唯一的原因是控方試圖指出各項罪行之間，以及據稱各項罪行發生的環境情況，實在過於巧合，以致這些巧合之處可以作爲證據，證明被告人干犯了本公訴書所述的罪行。因此，如果你們並不肯定本案中所指的罪行發生的環境情況，正如控方所指稱的一樣，或者你們雖然肯定這一點，但卻不肯定環境情況的雷同足以證實各項罪行必定是被告人所為，則這些其他罪行的證據，你們不得予以考慮。有一點必須切記，你們之後考慮所有其他事項時，必須把這些證據擱諸腦後，也不得認爲之前提及的其他罪行，仍可證明被告人有干犯這類罪行的傾向，以致被告人也有干犯目前被控的罪行。

C Where there is direct testimony that the defendant committed the offence and the question is whether the witness (W) who says that he did was speaking the truth. X and Y testify to similar offences on other occasions

1. Ask yourselves: Are you sure that W, X and Y did not put their heads together to make false accusations against the defendant? If you are not sure of that, the evidence of X and Y is of no value, and you must ignore it. If you are sure that there was no collaboration of that kind, you are entitled to consider the evidence of X and Y in deciding whether W was speaking the truth [and vice versa if eg three offences are charged].

2. You must then ask: Is it reasonably possible that the three persons, independently making the similar accusations which you have heard, could all be either lying or mistaken? If you think that is incredible then you may well be satisfied that W was speaking the truth. In answering this question you must consider two important aspects of the evidence:

(i) The degree of similarity between the accusations. The greater the degree of similarity, the more likely it is that independent witnesses are speaking the truth, for you may think it would be a remarkable coincidence if they hit upon the same lies or made the same mistakes as to matters of detail. On the other hand, the less the degree of similarity, the less weight should be given to this evidence; and

(ii) Whether W, X or Y may have been consciously or unconsciously influenced in their evidence through hearing of complaints made by others. If you think it is possible that they, or any of them, may have been influenced in making the accusation at all, or in the detail of their evidence, you must take that into account in deciding what weight, if any, you give to their evidence.

Issued September 2013 22.6

C 凡有直接證供指證被告人干犯了被控的罪行，而問題是，究竟指證被告人犯罪的證人（ W ），其所言是否屬實。證人 X 和 Y 就其他事件中發生的類似罪行作證。

1 . 你們問一問自己：你們是否肯定證人 W 、 X 和 Y 並沒有一起商量，捏造假證供誣告被告人？如果你們不肯定他們沒有這樣做的話，則 X 和 Y 的證據就沒有任何價值，而這些證據你們不得予以考慮。如果你們肯定他們之間沒有串通，你們可以把 X 和 Y 的證據納入考慮之内，從而決定 W 所言是否屬實； [ 例如，如果案中有三項控罪，則反過來也是一樣] 。

2. 之後你們必須再問自己：你們已經聽過這三人各自獨立地作出了類似的指控，在合理的情況下，有沒有可能他們全都是説謊或有所誤會？如果你們認爲根本沒有這個可能，則你們大可信納 W 所說的是真話。在回答這個問題時，你們必須考慮有關證據的兩大要點：

(i) 各項指控的類似程度。各項指控的類似程度越高，則獨立證人所言屬實的機會也越高，因爲如果他們想出同一樣的謊言，或在細節上犯了同樣的錯誤，實在過於巧合。反過來說，各項指控的類似程度越低，則這些證據應獲得的分量也越低；以及

(ii) 究竟 W 、 X 和 Y 三人會否在聽到其他人提出的投訴後，自覺或不自覺地影響了他們自己所作的證供？如果你們認爲有可能他們全部人或其中任何一人，或許完全因受了影響才作出指控，又或他們證據中的細節受了影響，則你們必須把這點納入考慮，從而決定他們的證據是否應獲得分量，或應獲得多大的分量。

Notes: (1) The leading case relating to the principles to be applied in similar fact cases is DPP v P [1991] 2 AC 447, cited with approval by the CFA in HKSAR v Zabed Ali [2003] 2 HKLRD 849. Also, see HKSAR v Wong Tin Chuk CACC 761 of 1997 and R v Musquera [1999] Crim L R 857.

(2) In relation to the issue of collusion, see R v Ryder 98 Cr App R 242 and R v H [1995] 2 AC 737.

(3) In relation to the issue of identification, see R v Brown [1997] Crim L R 502 and R v John W [1998] 2 Cr App R. 289.

(4) In relation to when a ‗sequential‘ or ‗cumulative approach‘ is appropriate see R v Wharton [1998] 2 Cr App R 289 at 304.

Issued September 2013 22.7

(5) Note: The position in England and Wales is now subject to the provisions of the Criminal Justice Act 2003. Archbold (2013) 13-37, et seq. Blackstone (2013) F12.1 et seq.

Archbold Hong Kong (2013) 13-1 et seq. Bruce & McCoy, Criminal Evidence in Hong Kong VIII

Issued September 2013 23.1

23. CORROBORATION / EVIDENCE REQUIRING CAUTION

Section 60 of the Criminal Procedure Ordinance, Cap 221, has abrogated the obligation of a judge to direct the jury that it is dangerous to convict on the uncorroborated testimony of an accomplice; section 4A of the Evidence Ordinance has abrogated the same rule in relation to the uncorroborated testimony of a child, and section 4B has abrogated the rule in relation to the testimony of victims of alleged sexual offences

In such cases, it is now a matter for the judge‘s discretion what, if any, warning he considers appropriate in respect of such a witness.

In R v Makanjuola and R v E [1995] 2 Cr App R 469 Lord Taylor CJ gave the following guidance in cases of this nature (at page 472-3):

―1. Section 32(1) [the equivalent of section 60] abrogates the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of a sexual offence, simply because a witness falls into those categories.

2. It is a matter for the judge‘s discretion what, if any, warning he considers appropriate in respect of such a witness, as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness's evidence.

3. In some cases it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant in a sexual case nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestions by cross-examining counsel.

4. If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question should be resolved by discussion with counsel in the absence of the jury before final speeches.

5. Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge's review of the evidence, and his comments as to how the jury should evaluate it rather than as a set-piece legal direction.

6. Where some warning is required, it will be for the judge to decide the strength and terms of the warning. It does not have to be invested with a whole florid regime of corroboration rules.*

Issued September 2013 23.2

7. … Attempts to re-impose the straitjacket of the old corroboration rules are strongly to be deprecated.

8. … Finally, this court will be disinclined to interfere with a trial judge‘s exercise of his discretion save in a case where that exercise is unreasonable in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680, [1948] 1 KB 223).‖

*The judgment also contains the following guidance (page 472):

―Whether, as a matter of discretion, a judge should give any warning and if so its strength must depend upon the context and manner of a witness‘s evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however, the witness has been shown to be unreliable, [the judge] may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought to be appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness‘s evidence.‖

(See also R v R [1996] Crim LR 815.)

Where the jury is enjoined to look for supporting material before acting on impugned evidence, it is incumbent on the judge to identify what evidence was and what was not capable of amounting to supporting evidence: see R v B (MT) [2000] Crim L R 181.

Notes:

1. The observations in Makanjuola were adopted by the Court of Appeal in R v Chu Ip Pui [1997] HKLRD 549 and approved of by the Court of Final Appeal in Leung Chi Keung (2004) 7 HKCFAR 526 at paragraph 24 page 538 C-H.

2. Further important guidance has been given by the Court of Appeal in R v Muncaster (unreported 1998 EWCA Crim 296) [1999] Crim LR 409 and see Archbold (2013) 4-475. The need to consider whether such a warning should be given is not confined to accomplices in the strict sense and complainants in sexual cases, but also to witnesses in 'analogous categories'. However, it has no application to particular types of evidence (e.g. identification) where rules have been developed as to how a jury should be directed.

3. In R v Cairns and Others [2003], 3 Cr App R 38 the Court of Appeal held that the Crown was entitled to call a witness only part of whose evidence they relied on, and part of whose evidence was likely to be unreliable, but that there would need to be a special direction to the jury when such a witness gave evidence [see paragraphs 44-46 at page 671].

Issued September 2013 23.3

4. Judges should bear these principles in mind in cases where evidence may be suspect on grounds other than those identified thus far: for example, where the evidence relates to events long ago, where inconsistent statements have been made, or where a witness has, for any reason, an axe to grind.

5. In Wong Chi King v HKSAR FACC 10/2008, the Court of Final Appeal affirmed that where there was an evidential basis to suggest that the testimony of a witness was not reliable, a judge should consider giving a warning to exercise caution when considering that testimony and that if he decides to do so the terms of the caution are a matter within his discretion. One of the relevant circumstances which the judge should take into account is whether the danger of relying on the evidence of the witness is obvious to the jury.

6. In cases of substantial delay, it is desirable that a direction should be given to the jury as to possible difficulties which the defence may face as a result of such a delay, although such a direction is not invariably required: see Henry H [1998] 2 Cr. App R 161. See Direction 29.

Archbold Hong Kong (2013) 4-217 et seq. Archbold (2013) 4-468 et seq. Blackstone (2013) F5 Bruce & McCoy, Criminal Evidence in Hong Kong XIII

Issued September 2013 24.1

24. EVIDENCE OF CHILDREN

Corroboration :

1. There is no longer any rule of law requiring corroboration of the unsworn evidence of a child (that is, a person under the age of 14) and no longer any rule of practice requiring a warning of the danger of convicting on the uncorroborated evidence of a child simply because [he][she] is a child (see section 4A Evidence Ordinance). Note also that unsworn evidence of a child may corroborate evidence, sworn or unsworn, of another person (Evidence Ordinance, section 4).

2. It may be appropriate to warn the jury to take particular care with the evidence of a very young child.

3. Suggestions as to the factors to be taken into account in deciding what assistance to give to a jury are helpfully canvassed in Bruce & McCoy, Criminal Evidence in Hong Kong XIII [302].

Competence :

Section 3 of the Evidence Ordinance provides that only persons of unsound mind (in circumstances there defined) shall be incompetent to give evidence in any proceedings. In R v Lam Chi Keung [1997] HKLRD 421 Mortimer JA in the judgment of the Court of Appeal noted that in consequence it would appear that :

―… even a child who is unable to give intelligible evidence is competent if otherwise of sound mind. Clearly, a child witness is to be regarded as competent at least until the contrary is shown.‖

His lordship went on to say that if a child was to give unsworn evidence it would usually be necessary for the judge to bring home to such a witness the importance of telling the truth, citing the observations in the judgment of Auld J of the Court of Appeal in England and Wales in R v Hampshire [1995] 2 Cr.App.R. 319 as to an apposite softly spoken reminder which might be delivered to the child witness :

―Tell us all you remember of what happened. Don‘t make anything up or leave anything out. This is very important.‖

Archbold Hong Kong (2013) 8-38 Archbold (2013) 8-59 Blackstone (2013) F4-21 et seq. Bruce & McCoy, Criminal Evidence in Hong Kong; IX [51] to [151]

Issued September 2013 24.2

Child witnesses

(i) Video recorded evidence :

Section 79C of the Criminal Procedure Ordinance provides that the court may admit into evidence a video recording of an interview between an adult (as defined) and a child in respect of limited stipulated offences. In Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145 (CFA) Sir Anthony Mason said of the effect of the provision (page 156E) :

―… a statement made by the child in the recording shall have the same effect as if given in oral testimony.‖

When such evidence is admitted, the judge should, at the time of its admission as well as in the summing up, instruct the jury as to the status of the interview, namely, that statements made by the child in the course of the interview are treated in law as if given in direct oral testimony. It will often be helpful first to tell a jury that the practice has developed by which children can be interviewed on video by skilled personnel when an investigation is under way, and that a court has the power to permit such an interview to be adduced in evidence.

1. Should the interviewer of a child make comments such as ‗You are doing very well‘, a judgment should be made whether that comment or repetition of such comment may suggest to the jury that the interviewer is impressed by the quality or content of the evidence. If there is such a danger then, after discussion with counsel, the judge might direct the jury at an appropriate moment in the summing up to ignore such comments, saying that it is for them to assess the reliability of what has been said in the interview and that in any event the comment is merely the sort made by persons seeking to encourage a young person to concentrate on the issue at hand.

2. Replaying the videotape to the jury:

The replaying of video evidence of witnesses is a departure from the normal method of conducting a criminal trial and should only take place for exceptional reasons: see R v Mullen [2004] 2 Cr. App R 18. In Mullen the Court of Appeal of England and Wales approved of the following passage in Archbold (2003) 4-423 in respect of the procedure to be adopted and the direction to be given to the jury when a video is to be replayed:

―If the video is replayed, (a) the recording should be replayed in court with the judge, counsel and defendant present, (b) the judge should warn the jury that because they are hearing the complainant‘s evidence in chief a second time, after all the other evidence, they should guard against the risk of giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case, and (c) to assist in maintaining a fair balance the judge should, after the tape has been replayed, remind the jury of the cross-examination and re-examination of the complainant, whether the jury asked him to do so or not‖

Issued September 2013 24.3

(ii) Video link evidence :

Section 79B(2) of the Criminal Procedure Ordinance provides that the court may in respect of the same limited stipulated offences, permit a child to give evidence or be examined by way of a live television link.

Where a child does give evidence, the judge bears the central responsibility for ensuring that the evidence is handled sensitively and with adequate preparation. Judges are strongly urged to view the tape entitled ‗A Case for Balance‘ prior to any PTR which relates to a child witness case. The tape may be obtained from the library.

Archbold Hong Kong (2013) 4-239 to 240; 8-64 to 69 Archbold (2013) 8-71 et seq.; 4-497 to 500 Bruce & McCoy, Criminal Evidence in Hong Kong; IX [551] to [553]

Issued September 2013 24A.1

24A. Directions when evidence is given by an adult or child witness behind a screen/by video recording/live video link 有關成年證人或兒童證人在屏幕後 / 透過錄影紀錄／錄影直播聯繫作證的指引

Where evidence is given behind a screen, by video recording or by video link it is desirable to tell the jury both at the time the witness starts her/his evidence as well as in the course of the summing up that no inference adverse to the defendant should be drawn from the procedure used. So, for example :

In this case the witness[es] X [Y and Z] gave evidence by means of [video recorded evidence-in-chief] [live-link television] [behind a screen].

The giving of evidence in this way is perfectly normal in cases like this. It is designed to enable the witness[es] to feel more at ease when giving evidence. It is not intended to prejudge the evidence which the witness[es] give[s].

The fact that the evidence has been so given must not in any way be considered by you as prejudicial to the defendant.

本案中證人 X 、 [Y 和 Z]作證時，[ 其主問證據是以錄影紀錄的方式作出 ][是透過電視直播聯繫的方式作證][是在屏幕後作證 ] 。

證人以這方式作證，在本案這一類案件中，完全是正常的。這種安排是爲了使證人在作證過程中可以放鬆一點，而並非是要預先判斷證人所作的證供。

你們切記不可因爲證人是以上述方式作證，而對被告人產生任何偏見。

Archbold Hong Kong (2013) 4-240; 8-63 to 69 Archbold (2013) 8-71 et seq. Bruce & McCoy, Criminal Evidence in Hong Kong; IX [551] to [553] and [600.1]

Issued September 2013 25.1

25. CROSS-EXAMINATION ABOUT EVIDENCE ‗ON A PREVIOUS OCCASION‘ 就 [ 先前] 的證供作出盤問

Where cross examination is directed to evidence given by a witness ‗on a previous occasion‘, (e.g. a voir dire or a previous trial) some explanation by the judge in the summing up (or earlier as well if the references are repeated and the atmosphere so dictates) may be necessary.

During this trial, you have heard reference to evidence given by [e.g. police officers] on a [previous occasion] [recent occasion in your absence]. Please do not speculate about the nature of that occasion. In our system, there are various circumstances in which witnesses give evidence in relation to the subject matter of a trial on more than one occasion, and it is unnecessary and unhelpful to describe all the instances in which that can happen.

The fact that in this case there has been such an earlier occasion when witnesses have given evidence, was put by [defence] counsel to certain [prosecution] witnesses in an attempt to suggest inconsistencies between the evidence on a particular point given by a witness before you, and the evidence given by that witness on that point on a previous occasion. That is why it was necessary to refer to the previous occasion. But it is not necessary to explain the nature of that occasion, and it is not a matter about which you should speculate.

在這審訊中，你們曾聽到有人提及 [ 例如警務人員][先前／最近在你們不在場的情況下] 所作的證供。請不要猜測該次作供的性質。在我們的制度中，證人在許多情況下都需要不只一次就審訊中的主題事項作供，這些情況你們無須一一知道，因為這對你們並無幫助。

在本案中，[ 辯方] 大律師向某些[ 控方] 證人指出他們曾於較早前作供，大律師的目的是試圖指出有關的證人在你們面前就某一點所作的證供與他們先前就同一點所作的證供並不一致，因此，才有必要提到先前的證供。不過，你們無須知道該次作供的性質，也不應作出任何猜測。

See also Previous Inconsistent Statement, Direction 27 post.

Issued September 2013 26.1

26. HOSTILE WITNESS 敵意證人

X was called by [the prosecution], but gave evidence which did not support [the prosecution‘s] case. [The prosecution] was therefore allowed to treat him as a ‗hostile‘ witness — a witness who had in effect ‗changed sides‘ — and to cross-examine him to show that he had earlier made statements which are inconsistent with the evidence he has now given in court. The contents of those earlier statements are not part of the evidence in the trial, except for those parts of them which he has told you are true. Those statements were put before you by [the prosecution] to throw doubt on the reliability of his evidence here in court.

You have to decide whether you can accept any part of the evidence which he has given in court and, if so, what part of it. If you decide that there is serious conflict between the evidence he gave you and statements previously made by him, you may think that you should reject his evidence altogether and not rely upon anything he has said in the witness box.

X 是 [ 控方] 所傳召的證人，但他所作的證供卻未能支持控方的說法，因此，[ 控方] 獲准視他為‚敵意‛證人（即實際上已‚投向對方‛的證人），並對他作出盤問，以顯示他較早前所作的陳述與他現時在法庭內所作的證供並不一致。關於他較早前所作的陳述的內容，除了那些他告訴你們全屬真實的部分外，其餘的都不屬於這項審訊中的證供。[ 控方] 使你們知道那些陳述，目的是質疑證人在本法庭內所作的證供的可靠性。

你們要決定能否接納他在法庭內所作證供的任何部份。而且如果能夠接納的話，是證供中哪些部分可以接納。如果你們斷定他在你們面前所作的證供與他先前所作的陳述嚴重抵觸，便可以考慮完全拒絕接納他的證供，不以他在證人席上所講的任何說話作為依據。

[see section 12 of the Evidence Ordinance, Cap 8]

Notes: 1. See Driscoll v R (1977) 51 ALJR 731; R v Pestano [1981] Crim LR 397; R v Thomas [1985] Crim LR 445; and R v Yip Moon-ting [1984] HKLR 443.

2. The previous statement may be oral or written: R v Prefas and Pryce [1987] Crim LR 327; [1986] 86 Cr App R 111.

3. Procedure: It is undesirable to proceed immediately, on not getting the expected answer, to treat the witness as hostile. For guidance on procedure, see R v Maw [1994] Crim LR 841, R v Pestano, R v Thomas supra, the commentary to which is commended, and Bruce & McCoy, Criminal Evidence in Hong Kong X [405]-[454]. The report in R v Maw is included at Section B Part 2; as is the report of R v Thomas. Whether a voir dire should be held is a question within the judge‘s discretion : see R v Honeyghon and Sayles [1999] Crim L R 221.

Issued September 2013 26.2

4. ‗Where a witness has, with leave, been treated as hostile, but on cross examination he says that the contents of the previous statement are true the judge must warn the jury to approach any testimony given by that witness that incriminates the defendant with caution, pointing out that the incriminating evidence thus adduced, after he has been treated as hostile, only emerged as a result of cross-examination by counsel for the prosecution‘ : see Archbold (2013) 8-205, referring to R v Ugorji [1999] EWCA Crim 1604.

Archbold Hong Kong (2013) 8-94 et seq. Archbold (2013) 8-197 et seq. Blackstone (2013) F6.50 et seq. Bruce & McCoy, Criminal Evidence in Hong Kong; X [353] to [503]

Issued September 2013 27.1

27. STATEMENT: PREVIOUS INCONSISTENT STATEMENT, WITNESS NOT HAVING BEEN TREATED AS HOSTILE 由沒有被視為敵意證人的證人先前作出的與證供互相矛盾的陳述

[You may be satisfied that X] [X has admitted that he] had previously made a statement which conflicted with his evidence. His evidence is what he told us in court on oath/affirmation. What use may you make of that previous statement?

You may take into account the fact that he did make such a statement when you consider whether he is believable as a witness. However the statement itself is not evidence of the truth of its contents, except for those parts of it which he has told you are true.

[It is suggested (admitted) that the previous statement made by X is inconsistent with his/her evidence in this court in that …]

In examining suggested inconsistencies, you will wish to decide, first, whether there is in fact and in true context, an inconsistency; and if you decide that there is one, you will wish to decide whether it is material and relevant or, on the other hand insignificant or irrelevant. If there is an inconsistency, it might lead you to conclude that the witness is generally not to be relied upon; alternatively, that a part only of his evidence is inaccurate; or you may accept the reason he has provided for the inconsistency and consider him to be reliable as a witness.

[ 你們可能確信 X][X 承認] 先前曾經作出一項與他的證供相抵觸的陳述。他的證供就是他在法庭內經宗教式宣誓 / 非宗教式宣誓後所說的話。該項先前的陳述對你們來說可以有甚麼用處呢？

你們在決定他是否可信的證人時，可以把他曾作出該項陳述一事列入考慮。不過，該項陳述本身並不能證明它的內容屬實，除了那些他已告訴你們是屬實的部分。

[ 控方提出/ 辯方承認 X 先前所作的陳述與他/ 她在法庭內所作的證供互相矛盾，例如……]

你們在研究那些被指為互相矛盾的地方時，可以首先根據事實和有關的陳述的真正文意，決定兩者之間是否有互相矛盾之處。如果你們斷定兩者之間確有互相矛盾之處，可以再決定有關的矛盾之處是否重要和相關；或反過來說是否不重要和不相關。如果真的有互相矛盾之處，你們可能會基於這個原因而斷定證人大致上並不可靠；不過，你們也可以基於他的證供中，只是有一部分不真確，或接納他就有關的矛盾之處所作出的解釋，你們可斷定他是一名可靠的證人。

Issued September 2013 27.2

Notes: (1) Where the inconsistency is neither serious nor central to the case, it is normally sufficient to do no more than draw attention to it.

(2) Explain what is and what is not evidence of the truth and the relevance of the previous inconsistent statement to the credibility of the witness.

(3) If there are several witnesses concerned, give the general directions first before you deal with the first of them and then refer briefly to that direction when you deal with each of the others.

(4) See also Direction No. 26, ―Hostile Witness‖ and Direction No. 25 ―Cross-Examination on a Previous Occasion‖.

(5) See Archbold News, Issue 3, April 3, 2009, page 8 for the circumstances in which it may be appropriate to amplify the existing direction. It should be borne in mind, however, that the effect of a previous inconsistent statement in English law differs from the position in Hong Kong because of the operation of s. 119 of the Criminal Justice Act 2003, under which a previous inconsistent statement may become evidence of the truth of its contents. The article has relevance therefore only in so far as it points out that there may be perfectly innocent reasons why the statement of a witness is inconsistent with his evidence and suggests how the possibility may be dealt with by the trial judge in his directions to the jury.

Archbold Hong Kong (2013) 8-127 et seq. Archbold (2013) 8-263 et seq. Blackstone (2013) F7.44 et seq. Bruce & McCoy, Criminal Evidence in Hong Kong X [803] to [951]

Issued September 2013 28.1

28. VISUAL IDENTIFICATION 目視辨認

This is a trial where the case against the defendant depends [wholly] or [to a large extent] on the correctness of one or more identifications of him which the defence alleges to be mistaken. To avoid the risk of any injustice in this case, such as has happened in some cases in the past I must therefore warn you of the special need for caution before convicting the defendant in reliance on the evidence of identification. A witness who is convinced in his/her own mind may, as a result, be a convincing witness, but may nevertheless be mistaken. The same may apply to a number of witnesses. [Add if appropriate: mistakes can also be made in the recognition of someone known to a witness, even of a close friend or relative.]

You should therefore examine carefully the circumstances in which the identification by each witness was made. How long did he have the person he says was the defendant under observation? At what distance? In what light? Did anything interfere with the observation? [And, where appropriate]

Had the witness ever seen the person he observed before? If so, how often? If only occasionally, had he any special reason for remembering him? How long was it between the original observation and the identification to the police? Is there any marked difference between the description given by the witness to the police when he was first seen by them and the appearance of the defendant?

[Add if appropriate]

I must remind you of the following specific weaknesses which appeared in the identification evidence ...

在這宗審訊中，控方對被告人的指控，[ 完全] 或 [ 在很大程度上] 取決於證人對被告人的一次或多次辨認是否正確無誤，而辯方則指稱被告人被錯誤地辨認。為了防止在過去一些案件中曾出現的不公平情況，在本案中，本席必須提醒你們，在依賴辨認證據把被告人定罪之前，必須特別小心考慮。有些證人，因為他們自己對某些事情堅信無疑，或會令你們對這些事情也會覺得可確信無疑。不過，這些證人同樣可能會犯錯。在審訊中可能會出現多名這樣的證人。 [ 如屬適當，可加上以下字句：證人在辨認他所認識的人（甚至是親密朋友或親戚）時同樣可以犯錯。]

因此，你們應當仔細研究每一名證人是在甚麼情況下辨認被告人，例如他對他所稱的被告人觀察了多久？距離有多遠？光線怎樣？有否任何東西防礙他觀察被告人？[ 如屬適當，可加上其他情況。 ]

證人曾否在案發之前見過他所觀察的人？如有的話，見過多少次？如果只是偶爾看見的話，則有甚麼特別理由會記得那人？從證人最初看見那人到向警方辨認那人的身分，中間相隔多久？被告人的外表與證人初次會見警方時所作的描述，有沒有顯著的差異？

Issued September 2013 28.2

[ 如屬適當，可加上其他問題。 ]

本席必須提醒你們，本案的辨認證據有以下的明顯弱點……

See R v Turnbull [1976] 63 Cr App R 132

Notes:

1. The importance of the rules laid down in R v Turnbull was emphasised by Lord Lane CJ in R v Clifton [1986] Crim LR 399. The basic principle is the special need for caution when the issue turns on evidence of visual identification. The summing-up in such cases must not only contain a warning but expose to the jury the weaknesses and dangers of identification evidence both in general and in the circumstances of the particular case. Turnbull is intended, primarily, to deal with the ―ghastly risk‖ in cases of fleeting encounters; see Lord Widgery CJ in R v Oakwell [1978] 1 All ER 1223 and also R v Pattinson and Exley [1996] 1 Cr App R 51. The rule is equally applicable to police witnesses: R v Reid [1989] 3 WLR 771, PC; as Cr App R 121. The judge should raise with counsel, prior to their closing speeches and the summing up, the issue of what evidence they seek to rely on as undermining or supporting the identification evidence so that the judge can indicate to counsel his view as to whether and not that evidence is capable of having that effect: R v Stanton [2004] EWCA Crim 490. In his summing up, the judge should identify for the jury‘s careful weighing exercise matters that he considers material to the issue and not merely refer to points raised by counsel: R v Elliott [1997] EWCA Crim 3419.

2. Where the quality of the identifying evidence is poor the judge should withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. See R v Fergus (Ivan) 98 Cr App R 313, CA. The identification evidence can be poor, even though given by a number of witnesses. They may all have had only the opportunity of a fleeting glance or a longer observation made in difficult conditions. Where, however, the quality is such that the jury can safely be left to assess its value, even though there is no other evidence to support it, the trial judge is entitled (if so minded) to direct the jury that an identification by one witness can constitute support for the identification by another, provided that he warns them in clear terms that even a number of honest witnesses can all be mistaken. R v Weeder [1980] 71 Cr App R 228 and R v Breslin [1985] 80 Cr App R 226. The judge should identify the evidence he regards as capable of supporting the evidence of identification.

3. In R v Etienne (1990) The Times, 16 February, the court was not at all sure that previous sightings of the suspect could render the identification more reliable if the identification was, on any view, an identification amounting to no more than a fleeting glimpse recognition. The court was left with a lurking doubt as to the safety of the conviction.

4. Such a direction is not required in every case, eg where the identification is not challenged or where it is not regarded by the judge as requiring supportive evidence. See R v Penman [1986] 82 Cr App R 44. Neither is such a direction required when

Issued September 2013 28.3

the identification is by description rather than by facial features (see R v Doldur [2000] Crim L R 178 and R v Gayle [1999] 2 Cr App R 131. See also R v Byrne [1999] EWCA Crim 120.

5. For hot pursuit situations, see R v Wong Wing-yip Cr App 512/90.

6. Where identification involves recognition, remind the jury that mistakes in recognition, even of close friends and relatives are sometimes made. As to the cumulative effect of a number of identifying witnesses, see R v Barnes [1995] 2 Cr App R 491.

7. Care should be taken in directing about support to be derived from the jury‘s rejection of an alibi. There may be many reasons for putting forward a false alibi. Alibi witnesses may be genuinely mistaken as to dates etc. Only if satisfied that the sole reason for the fabrication was to deceive them, may the jury find support for poor identification evidence. The mere fact that the defendant has lied about his whereabouts does not of itself prove that he was where the identifying witness said he was. Lies may however, in limited circumstances, provide support for identification evidence. See R v Goodway 98 Cr App R 11 and HKSAR v Mo Shiu Shing [1999] 1 HKC 43; and Direction 42.

8. R v Galbraith [1981] 73 Cr App R 124 was not intended to affect in any way the Turnbull guidelines as to the withdrawal of a case dependent upon poor identifying evidence.

9. For the relationship between the Turnbull directions and the now discretionary directions on supporting evidence in sexual cases where identification is in issue, see the important case of R v Chance [1988] 87 Cr App R 398 and R v Barnes [1995] 2 Cr App R 491.

10. As to identification of a defendant by comparison with a film or photograph from the scene of the crime, see the summary of the circumstances in which such evidence may be admitted in the judgment of the Court of Appeal in AG‘s Reference (No. 2 of 2002) 2003 1 Cr App R 21 p.321.

Archbold Hong Kong (2013) 14-1 et seq. Archbold (2013) 14-1 et seq. Blackstone (2013) F 18.1 et seq. Bruce & McCoy, Criminal Evidence in Hong Kong; XI [2] to [352]

Issued September 2013 28A.1

28A. Identification by Voice

In an appropriate case where identification by voice is in issue the trial judge should direct the jury by the careful application of a suitably adapted ‗Turnbull‘ direction: see R v Hersey [1998]Crim LR 281, [1998] EWCA Crim 1094, 27 November 1998; R v Gummerson and Steadman [1999] Crim LR 680, [1998] EWCA Crim 3106, 1 December 1997. See also ‗Sounds Familiar‘ by David Omerod [2001] Crim L R 595, in particular p.619.

In R v Roberts [2000] Crim LR 183, the Court of Appeal of England and Wales referred to academic research indicating that voice identification was more difficult than visual identification, and concluded that the warning given to jurors should be even more stringent than that given in relation to visual identification ;see also HKSAR v Lai Wai Cheung [1998] 1 HKLR 665 and R v Cheung Hay Din [1991] 1 HKC 250.

It is clear from the authorities that it is not necessary to hold a voice identification procedure to render admissible evidence of identification by voice.

As to the use of auditory and acoustic expert evidence, see R v Doherty [2001] 1 Cr App R 5. and [2003] Crim L R 183( Court of Appeal of Northern Ireland ).

Archbold Hong Kong (2013) 14-42 Archbold (2013) 14-71 et seq. Blackstone (2013) F18.24 et seq. Bruce & McCoy, Criminal Evidence in Hong Kong; XI [404] to [450]

Issued September 2013 28B.1

28B. IDENTIFICATION BY DNA

1. In the judgment of the Court of Appeal of England and Wales in R v Doheny [1997] 1 Cr App R 365 Phillips LJ suggested the following be addressed in the summing up on the aspect of DNA evidence :

―The judge should explain to the jury the relevance of the random occurrence ratio in arriving at their verdict and draw attention to the extraneous evidence which provides the context which gives that ratio its significance, and that which conflicts with the conclusion that the defendant was responsible for the crime stain. In so far as the random occurrence ratio is concerned, a direction along these lines may be appropriate, although any direction must always be tailored to the facts of the particular case.

‗Members of the jury, if you accept the scientific evidence called by the Crown, this indicates that there are probably only four or five white males in the United Kingdom from whom that semen stain could have come. The defendant is one of them. If that is the position, the decision you have to reach, on all the evidence, is whether you are sure that it was the defendant who left that stain or whether it is possible that it was one of that other small group of men who share the same DNA characteristics.‘‖

Note:

The guidance of Phillips LJ was approved in the Advice of the Privy Council in Pringle v R [Jamaica] [2003] UKPC 9.

In Hong Kong, in the context of evidence of a random match probability of say 1: 33.5 billion it might be appropriate to direct the jury in the following manner:

"What that means is that the probability of finding another person with the same DNA type from the local Chinese population who is neither the sample donor or anyone related to him is one in 33.5 billion.‖

Archbold Hong Kong (2013) 14-44 et seq. Archbold (2013) 14-81 Blackstone (2013) F18.27 et seq. Bruce & McCoy, Criminal Evidence in Hong Kong I [254]

Issued September 2013 29.1

29. DELAY 延誤

1. The following direction is framed to include all the directions that may be necessary where the count(s) relate to events which occurred years earlier or where for any reason there is concern about the delay. But, as the notes below emphasise, directions about delay, if they are appropriate in the case at all, must be tailored to the case.

We are now concerned with events which are said to have taken place a long time ago. You must appreciate that because of this there may be a danger of real prejudice to a defendant. This possibility must be in your mind when you decide whether the prosecution has made you sure of the defendant‘s guilt.

1. (Where appropriate:) You are entitled to consider why these matters did not come to light sooner. Is that a reflection on the reliability of the complaint? Or does it arise from the conduct of the defendant? You have been given an explanation for this, which is […]

2. You should make allowances for the fact that with the passage of time memories fade. Witnesses, whoever they may be, cannot be expected to remember with crystal clarity events which occurred [many years ago]. Sometimes the passage of time may even play tricks on memories.

3. You should also make allowances for the fact that from the defendant‘s point of view, the longer the time since an alleged incident, the more difficult it may be for him to address. [For example, has the passage of time deprived him of the opportunity to put forward an alibi and evidence in support of that alibi]. You only have to imagine what it would be like to have to answer questions about events which are said to have taken place […] years ago to appreciate the problems which may be caused by delay. Even if you believe that the delay in this case is understandable, if you decide that because of this the defendant has been placed at a real disadvantage in putting forward his case, take that into account in his favour when deciding if the prosecution has made you sure of his guilt.

4. (Where appropriate in the case of a defendant of good character i.e. either here, or when giving the second limb of the good character direction, add:) Having regard to what you know about this defendant and in particular the […] years since the date of the alleged offence [and (if it be the case) that no similar allegation has been made against him] you may think he is entitled to ask you to give considerably more than usual weight to his good character when deciding whether the prosecution has satisfied you of his guilt.

Issued September 2013 29.2

我們在本案中要考慮的是根據控方所指稱在很久以前發生的事情。你們必須明白，由於事情發生已久，被告人可能會有蒙受真正損害的風險。你們在決定控方能否令你們確信被告人有罪時，必須謹記上述可能性。

1. （如屬適當：）你們有權質疑這些事情為甚麼不早點披露，這情況是否顯示控方的指控的可靠性有問題？或是否因被告人的行為導致延誤？你們已聽過一個解釋，那就是[ ……]

2. 你們應當體諒記憶會隨着時間消退。無論證人是誰，我們也不能期望他們能夠完全清楚記得 [ 許多年前] 所發生的事情。有時，時間的消逝甚至會使人的記憶變得模糊。

3. 你們也應當體諒，對被告人來說，控方所指稱的事件的發生時間越久，被告人便越難處理 [ 例如：由於事發已久而令他喪失機會提出不在犯罪現場的抗辯和支持這項抗辯的證據 ] 。你們只須想想，要回答一些關於據稱在 [ ……] 年前發生的事情的問題是多麼困難，這樣你們便會明白延誤所造成的問題。即使你們認為本案中的延誤是情有可原的，但只要你們斷定被告人在提出抗辯時已因為有關的延誤而被置於真正不利的處境，你們在決定控方能否令你們肯定被告人有罪時，便可以視有關的延誤為對被告人有利的因素。

4. （如屬適當及如果被告人品格良好，可以在這裡、或作出關於良好品格的被告人的第二部分指示時，加上以下字句：）在考慮過你們所知有關被告人的一切後，尤其是控方所指稱的罪行的發生日期距今已[ ……] 年 [ 及（如屬此情況）沒有人曾對他作出類似的指稱 ] ，你們可以認為，在你們決定控方能否令你們確信他有罪時，被告人有權要求你們特別重視他品格良好這一點。

Notes

1. The direction takes into account the observations of the Court of Appeal (Criminal Division) in R v Percival (1998) EWCA Crim 2012 (19 June 1998). However, in a number of cases before and after Percival the Court of Appeal has emphasised that whether a direction about delay is required at all and, if so, what form it should take will

Issued September 2013 29.3

depend on the circumstances of the case, including the length of the delay and the cogency of the evidence. (See eg R v E (1995) The Times, 6 July; R v W [1999] 2 Cr App R 201; and R v M [2000] 1 Cr App R 49.) In the last of the cases, at p 57, Rose LJ said:

" It is apparent that the judgment in Percival was directed to the summing-up in that particular case. We find in the judgment no attempt by the Court to lay down principles of general application in relation to how judges should sum up in cases of delay and we accordingly would wish to discourage the attempts being made, with apparently increasing frequency, in applications and appeals to this Court to rely on Percival as affording some sort of blueprint for summings-up in cases of delay. It affords no such blueprint. Indeed in this area, as in so many others, prescription by this Court as to the precise terms of a summing-up is best avoided. Trial judges should tailor their directions to the circumstances of the particular case. In a case where there have been many years of delay between the alleged offences and trial, a clear warning will usually be desirable as to the impact which this may have had on the memories of witnesses and as to the difficulties which may have resulted for the defence. The precise terms of that warning and its relationship to the burden and standard or proof can be left to the good sense of trial judges with appropriate help and guidance from the Judicial Studies Board."

Also, see R v Holgate [1996] 3 HKC 315 at 321 E-G.

2. Where there is a delay between the crime and the witness identifying the defendant, see Direction 28, Identification.

3. Where a significant difficulty to the defence or some aspect of prejudice occasioned by the delay has been aired on behalf of the defence, or is perceived by the judge (e.g. the defendant can no longer remember where he was at a time or date so long after the event) it is incumbent on the judge to emphasise the way in which prejudice may have arisen [see R v Henry [1998] 2 Cr. App. R. 161 at 168F].

See R v Doody EWCA Crim 2394 (24 October 2008) [paragraphs 9 and 11] a decision of the Court of Appeal of England and Wales for general guidance as to the ambit of an appropriate direction in circumstances of a delayed complaint where the issues of shame, guilt and trauma in the complaint arise on the evidence.

Archbold (2013) 4-465 Blackstone (2013) D3.81 Bruce, Criminal Procedure, Trial on Indictment VI [753.1]

Issued September 2013 30.1

30. SEXUAL OFFENCE: RECENT COMPLAINT AND DISTRESS 性罪行：盡早投訴及困擾

Recent complaint

In R v Islam, [1998] 1Cr App R 22 and R v NK [1999] Crim. LR 980 the Court of Appeal in England stated the need to direct the jury on the evidential significance of a complaint in a sexual case. It was emphasized by the Privy Council in White v The Queen [1999] 1 AC 210 and [1999] 1 Cr App R 153 that it was necessary that the terms of the complaint be proved by the person to whom it was made.

You have heard evidence that shortly after this alleged incident X made a complaint to Y [her mother, a passer-by, the police, etc]. This is not evidence as to what actually happened between X and the defendant. Y was not present, and did not see what happened between them.

It is evidence which you are entitled to consider, because it may help you to decide whether or not X has told you the truth. [The prosecution say that her complaint is consistent with her account, and therefore she is more likely to be truthful. On the other hand the defence say...] It is for you to decide whether the evidence of this complaint helps you to reach a decision, but it is important that you should understand that the complaint is not independent evidence of what happened between X and the defendant, and it therefore cannot of itself prove that the complaint is true.

盡早投訴

你們已聽過證供指 X 在控方所指稱的事件發生後不久向 Y[她母親、一名證人、警方等等] 作出投訴。這並不是證明 X 與被告人之間確曾發生甚麼事情的證據。事發時 Y 並不在場，因此沒看見兩人之間所發生的事情。

你們有權把上述證供列入考慮，因為這項證供可能有助於你們決定 X 有否向你們說出真相。 [ 控方說她的投訴與她現時的說法是一致的，因此她較有可能是誠實的證人；但另一方面，辯方則說…… ] 。你們要決定，關於這項投訴的證供是否有助於你們作出判決，但重要的是，你們應當明白，這項投訴並不是證明 X 和被告人之間曾發生甚麼事情的獨立證據，因此這項證據本身不能夠證明投訴的內容屬實。

Notes:

1. Evidence of recent complaint is admissible only as evidence of the consistency of the complainant's conduct, not for the purpose of negativing consent.

Issued September 2013 30.2

In Leung Chi Keung v HKSAR (2004) 7 HKCFAR 526 at 537 H to 538 B, paragraph 21, Li CJ noted that the general rule at common law was that a witness could not be asked in evidence-in-chief whether he had formerly made a statement consistent with his present testimony. He went on to say:

―A well known common law exception to this rule is evidence of recent complaint in a sexual case. If a complaint was made at the first reasonable opportunity after the offence, the evidence of the person to whom it was made of the fact that it was made and as to its terms are admissible. But such evidence of recent complaint is admissible not as evidence of the facts complained of but only as evidence of the consistency of the complaint‘s conduct with his or her testimony. In short, such evidence is only relevant to the credibility of the complainant and would serve to buttress it. See White v The Queen [1999] 1 AC 210 at 215F-H, Archbold Hong Kong (2004) para 8-102, Archbold (2004) para 8-103. In cases where consent has been in issue, there are statements which can be read as suggesting that evidence of recent complaint is also admissible for the purpose of negativing consent. But it should be regarded as settled that this does not afford a second and independent ground of admissibility. Where consent is an issue, evidence of recent complaint is admitted not as evidence of whether there was consent. Its purpose is merely to show consistency in the complainant‘s evidence which would include any evidence as to lack of consent. See Kilby v The Queen (1972-3) 129 CLR 460 at 469.‖

2. The admissibility of a complaint depends upon proof of the fact of the complaint by other evidence. (see R v Wright & Ormerod (1990) 90 Cr App R 91)

― If the terms of the complaint are not ostensibly consistent with the terms of the testimony, the introduction of the complaint has no legitimate purpose within the context of the trial‖ (see Wright p. 96)

3. As noted, a complaint might be proved to show consistency. For that purpose, it was necessary not only that the complainant should testify to the making of the complaint, but also that its terms should be proved by the person to whom it was made. If the recipient of the complaint does not give evidence, the complainant‘s evidence that she made a complaint cannot assist in proving her consistency. However, a witness might testify to an earlier consistent statement to rebut an imputation that her evidence was a recent invention. (see White v The Queen [1999] 1 AC 210).

4. A similar direction should be given if, by whatever route, there is before the jury a previous account by a complainant of a sexual offence which, although technically not a recent complaint, is one which the jury is likely to take into account : R v Croad [2001] EWCA Crim. 644 (C.A. 21 March 2001).

If the complaint is one to the emergency services it may have been recorded, and the recording itself may constitute ‗primary evidence‘ of the complainant‘s condition.

Issued September 2013 30.3

Distress

For guidance on how to deal with the distressed condition of an alleged victim of a sexual offence see the judgment of Li CJ in Leung Chi Keung v HKSAR (2004) 7 HKCFAR 526 at 542 I- 543D, paragraph 41:

“Directions by the judge

The judge should direct the jury on the proper approach to be taken in considering evidence of the complainant‘s distressed condition. In summary, the essentials of the proper approach are as follows:

(a) The jury must be satisfied beyond reasonable doubt (i) that the complainant‘s distressed condition was genuine and (ii) that there was a causal connection between the distressed condition and the sexual offence. In other words, they must be satisfied that (i) the distressed condition was not feigned and (ii) was only referable to the alleged sexual offence and not to any other cause. In deciding on those matters, they must take into account all relevant circumstances.

(b) Where the jury is so satisfied, they could give such weight to the evidence of distress as is appropriate. Weight is entirely a matter for them.

(d) Where fantasy has been properly raised as an issue, the jury must not use evidence of distress to rebut fantasy. If they believe that fantasy is a possibility, they cannot be satisfied of the required causal connection.

A judge sitting alone should approach the matter similarly.‖

Archbold Hong Kong (2013) 8-102 Bruce & McCoy, Criminal Evidence in Hong Kong X [104] et seq.

Note: The law in England and Wales is now subject to the provisions of the Criminal Justice Act, 2003 Archbold (2013) 8-209 Blackstone (2013) F6.21

Issued September 2013 31.1

31. STATEMENT TO POLICE BY CO-DEFENDANT, Not Evidence Against Defendant 共同被告人向警方所作的陳述不能作為針對被告人的證據

Where maker of statement has not given evidence.

The statement which B [or any other person] made [to the police] in A's absence implicating A is not and cannot be evidence against A. A was not present and had no opportunity to contradict it. You must therefore disregard it when you consider the case against A.

如果作出陳述者沒有作供

B[或任何其他人] 在 A 不在場的情況下[ 向警方] 作出顯示 A 與案件有牽連的陳述，不是也不能作為針對 A 的證據，因為 A 不在場而沒有機會反駁。因此，你們在考慮針對 A 的指控時，不得理會該項陳述。

Where maker of statement has given evidence.

The statement which B made [to the police] in A‘s absence cannot by itself be evidence against A, for he was not present and had no opportunity to contradict it. However, B has now given evidence in court [adopting that statement] implicating A. This evidence has been given in A‘s presence, and A has had the opportunity to challenge and contradict it. Therefore, it is evidence in the case generally, which you are entitled to consider.

如果作出陳述者已作供

B 在 A 不在場的情況下[ 向警方] 作出的陳述本身不能作為針對 A 的證據，因為 A 不在場而沒有機會反駁。不過，B 現已在法庭作供 [ 並採用該項陳述] ，表明 A 與案件有牽連。 B 現時的證供是在 A 在場的情況下作出的，所以 A 有機會提出質疑和反駁。因此，該項陳述屬本案證據的一部分，你們有權列入考慮。

Notes :

1 Where there is more than one defendant and each has made a written statement, tell the jury when considering the evidence against each defendant, to consider only the statement made by that defendant.

2 Where an out-of-court statement or confession of one defendant incriminates one or more co-defendants, it will often be sensible to advise the jury to consider the case of the defendant who was alleged to have made that statement after considering the case of the co-defendants R v Hickey and Robinson (1997) 8 Archbold News 3; Archbold (2013) 4-482.

Issued September 2013 31.2

3. Even if A and B are together when co-defendant B makes a statement implicating A, the statement may only be taken into account as evidence against A if A says or does something which constitutes a positive acceptance or acknowledgement of the truth of these statement in so far as it affects A. The fact that A remains silence when confronted with that statement cannot be an acceptance by him of the truth of B‘s statement.

4. Of course, if the defendant has given evidence in favour of defendant A the jury is entitled to have regard to it, and must be so directed. If he has given evidence against A it is necessary to have regard to Direction 41 - ‗Defendant‘s Evidence – Effect on other Defendants‘.

Issued September 2013 31A.1

31A. STATEMENT TO POLICE BY CO-DEFENDANT May Be Evidence To Be considered In Favour Of Defendant.

In HKSAR v Lee Kwan Kong CACC 198/2004 (unreported) the Court of Appeal quashed an appellant's conviction for the offence of murder in circumstances in which the trial judge had not directed the jury that they could have regard to references in out-of-court statements made to the police and adduced in evidence at the joint trial by two co-accused exculpatory of the appellant‘s conduct. In so doing, the court cited with approval the decision of the House of Lords in R v Myers [1997] 3 WLR 552. In the judgment of the court, delivered by Stuart-Moore VP, the issue was addressed thus : (paragraph 62)

―In the present case, of course, unlike the position in Myers, D1 and D3‘s respective confessions had been admitted in evidence and, for the purposes of advancing her defence that her guilt extended only as far as the assault she was prepared to admit, D2 was entitled to rely upon D1 and D3‘s confessions to show that, in fact, after she had gone to sleep, they had carried out a prolonged and serious attack upon the deceased. Indeed, without their accounts, there would have been nothing before the jury to suggest that D2 had not been involved in assaulting the deceased right up to the end, such as might have been the case if she had been arrested and tried on her own, without having the advantage of the confessions made by D1 and D3 which provided the full picture of what had happened. As Lord Slynn said (at page 563) in Myers:

―A confession may be relevant as to credibility or as to the facts in issue and it does not cease to be admissible because it does so. Indeed, as long as it is relevant to establish his defence or to undermine the prosecution case against him a defendant should in my view be allowed to cross-examine a co-defendant as to his confession which goes to the facts in issue rather than only to the credibility of the maker of the statement. He should not less be allowed to cross-examine the person to whom a statement is made as to the terms of the confession even though, since the defendant has not given evidence, the question of credibility has not arisen.‖

In the instant case, D2 merely had to rely on what had been said by D1 and D3 to establish the fact that hours after she had gone to her room to sleep, D1 and D3 had launched a fresh attack on the deceased.

It follows, therefore, that while the judge had rightly directed the jury that each of the confessions made by the applicants was evidence against only the maker of the confession, the judge ought at the same time to have indicated that they could take favourably into account in D2‘s case what had been said by D1 and D3 about their resumption of the assault upon the deceased long after D2 had left the scene.‖

Archbold Hong Kong (2013) 15-114 to 115B. Archbold (2013) 15-340 Blackstone (2013) F17.27 et seq.

Issued September 2013 32.1

32. EXPERT EVIDENCE 專家證據

In this case you have heard the evidence of X, who has been called as an expert on behalf of the prosecution/defendant. Expert evidence is permitted in a criminal trial to provide you with scientific [or e.g. accountancy] information and opinion, which is within the witness' expertise, but which is likely to be outside your experience and knowledge. It is by no means unusual for evidence of this nature to be called; and it is important that you should see it in its proper perspective, which is that it is before you as part of the evidence as a whole to assist you with regard to one particular aspect of the evidence, namely [...].

[In a case where e.g. handwriting (see Note 1, below) is in issue or there might otherwise be a danger of the jury coming to its own 'scientific' conclusions, add: With regard to this particular aspect of the evidence you are not experts; and it would be quite wrong for you as jurors to attempt to [compare specimens of handwriting/perform any tests/experiments of your own] and to come to any conclusions on the basis of your own observations. However you are entitled to come to a conclusion based on the whole of the evidence which you have heard, and that of course includes the expert evidence.]

A witness called as an expert is entitled to express an opinion in respect of [his findings or the matters which are put to him]; and you are entitled and would no doubt wish to have regard to this evidence and to the opinion/s expressed by the expert/s when coming to your own conclusions about this aspect of the case.

You should bear in mind that if, having given the matter careful consideration, you do not accept the evidence of the expert/s, you do not have to act upon it. [Indeed, you do not have to accept even the unchallenged evidence of an expert.] (In a case where two or more experts have given conflicting evidence:) It is for you to decide whose evidence, and whose opinions you accept, if any. You should remember that this evidence relates only to part of the case, and that whilst it may be of assistance to you in reaching a verdict, you must reach your verdict having considered all the evidence.

在本案中，你們已聽過 X 所作的證供，他是控方 / 被告人所傳召的專家證人。法庭准許專家證人在刑事審訊中作供，向你們提供關於科學[ 或會計等 ] 的資料和意見。專家證人的證供屬證人的專業知識範圍內，但卻可能在你們的經驗和知識範圍之外。在審訊中作出這類證供絕非不尋常的做法，重要的是，你們應正確看待這類證供，應視之為整體證據中的一部分，有助於你們處理某方面的證據，即 [ ……] 。

[ 如果案件涉及與筆迹等有關的爭議，或陪審團可能會自行就一些需用科學方法處理的問題作出結論，可以加上以下字句：關於這方面的證據，你們不是專家。作為陪審員，如果你們試圖 [ 比較筆迹樣本 / 自己進行任何測試/ 實驗]，並根據自己觀察所得作出任何結論，都是十分錯誤的做法。不過，你們有權根據你們所聽到的整體證供作出結論（當然包括專家證供在內）。]

Issued September 2013 32.2

專家證人有權就[ 他的研究所得或他須解答的問題 ] 發表意見，你們在本案中就這方面作出結論時，對專家所作的證供和所發表的意見，你們有權並當然想加以考慮。

你們應當謹記，如果你們經過仔細考慮後，並不接納專家的證供，便無須理會這些證供。[ 事實上，你們甚至無須接納那些沒受質疑的專家證供。]（如果案中有兩名或更多的專家作出互相抵觸的證供：）你們須決定究竟接納誰人的證供和誰人的意見（如有的話）。你們應記著，專家證供只與案件的某一部分有關，雖然可能有助於你們達成裁決，但你們在達成裁決前必須考慮所有證據。

Notes:

1. In relation to a matter such as handwriting, it is desirable to give the jury (in addition to any directions in the summing up) an early direction when the matter arises in evidence that they should not embark upon a comparison exercise on their own. They may, e.g. be told, if the issue is likely to be of importance, that they must decide it on the evidence only (which may legitimately take the form of agreed facts, the evidence of the maker or alleged maker of the document, the evidence of a person proved to be familiar with the maker's handwriting, expert evidence and circumstantial evidence); but they must not decide it on the basis of any comparison carried out privately by them.

2 See R v Stockwell 97 Cr App R 266; R v Fitzpatrick [1999] Crim LR 832; R v O'Brien and others [2000] EWCA Crim. 3 (C.A. 25 January 2000) followed in R v Smith [2003] EWCA Crim. 927 (in relation to confessions); R v Buckley [1999] EWCA Crim.1191 (C.A. 30 April 1999) (in relation to fingerprints); and R v Dallagher [2003] 1 Cr App R 195 (in relation to ear-prints, and the test of admissibility of expert evidence in a novel area).

3. In respect of psychiatric reports containing potentially inadmissible material regard should be had to :

(1) section 65DA of the Criminal Procedure Ordinance, which requires service of expert reports before the trial, a matter which should be raised at the Pre-Trial Review;

(2) the need to scrutinise the reports before trial to ascertain whether or not the intended evidence is admissible; and if doubt arises the need to raise the issue with counsel at an early stage;

(3) the distinction to be drawn between the factual basis for the expert‘s opinion and the opinion itself. Where the factual basis is an account of events given to the psychiatrist by the patient, it is for the jury and not the psychiatrist to say whether that factual basis is or may be true; a point which may have to be drawn to the attention of the jury in the summing up.

4. For the proper ambit of an expert‘s report, see R v Harris and others [2006] 1 Cr App R 5 and R v B (T.) [2006] 2 Cr App R 3.

Issued September 2013 32.3

5. ‗The Code of Practice for Expert Witnesses Engaged by the Prosecution Authority [of Hong Kong]‘ – see Archbold Hong Kong (2013) Appendix Three.

Archbold Hong Kong (2013) 10-36 et seq. Archbold (2013) 10-61 et seq. Blackstone (2013) F10.4 et seq. Bruce & McCoy, Criminal Evidence in Hong Kong VI [305] to [651]

Issued September 2013 33.1

33. DISHONESTY AND THE ‗GHOSH‘ DIRECTION 不誠實及‘Ghosh’一案的指引

Normally it is not necessary to attempt to define dishonesty as an ingredient of an offence. It will suffice simply to tell the jury that the word bears its ordinary meaning, which will be well known and understood by all of them.

However, there are exceptional cases in which the defendant may e.g. claim that his alleged conduct even if proved or admitted was not considered by him to be dishonest. In such cases a direction in accordance with the judgment of Lord Lane CJ in R v Ghosh 75 Cr App R 154 should be given. It is wise to use the exact words, see R v Hyam 1997 EWCA Crim 161 (23 January 1997).

It is always desirable to canvass the need for such a direction with counsel prior to speeches.

For examples of cases in which such a direction was held to be appropriate and inappropriate, see respectively R v Wood [1999] Crim LR 564 and R v Wood [2002] EWCA Crim 832.

Ghosh direction

The prosecution must make you sure that the defendant was acting dishonestly. In this case you must decide two questions:

1. Was what the defendant did [or (in the case of a conspiracy) agreed to do] dishonest by the ordinary standards of reasonable and honest people?.

In this regard, you the jury must form your own judgment of what those standards are.

2. Must the defendant himself have realised that what he was doing [or (in the case of a conspiracy) agreed to do] would be regarded as dishonest by those standards?.

In deciding this you must consider the defendant's own state of mind at the time [of these events].

If, after taking into account all of the evidence, you are sure that the answers to both of these questions are YES, the element of dishonesty is proved. If you are not sure of that, the element of dishonesty is not proved [and the defendant is 'Not Guilty' of the offence].

Ghosh 指引

控方必須使你們肯定被告人的行爲是不誠實的。你們在本案中必須就兩個問題作出裁決：

1. 按照合理而誠實人士所持的一般標準衡量，被告人的行爲 [（在串謀案件中）或他同意會作出的行爲 ] 是否屬於不誠實的行爲？

就此而言，陪審團你們必須自行決定這些標準是甚麽。

Issued September 2013 33.2

2. 按照這些標準來説，被告人本身是否必定已意識到，他所作的行爲[（在串謀案件中）或他同意會作出的行爲 ]，會被認爲是不誠實的行爲？

你們作出裁定時，必須考慮被告人本身在[ 有關事件] 發生時的心態。

如果你們考慮過所有的證據後，肯定上述兩個問題的答案均為‘是的’，則不誠實這項元素已獲證實。如果你們並不肯定，則不誠實這項元素未得證實，[ 而被告人就此罪行的罪名是‘不成立的’ ] 。

Archbold Hong Kong (2013) 22-20 Archbold (2013) 21-2c Blackstone (2013) B4.50 et seq.

Issued September 2013 34.1

34. SECTION 65 STATEMENTS 根據第 65 條作出的陳述書

In relation to facts admitted under section 65C Criminal Procedure Ordinance :

The evidence includes the statement of admitted facts, which was read to you. You must treat the facts which are thus admitted as facts which are conclusively proved in this case.

有關根據《刑事訴訟程序條例》第 65C 條獲承認的事實：

這些證據包括獲承認事實陳述書，之前已經向你們宣讀過了。任何根據此條例而獲承認的事實，你們必須視之爲在本案中已獲證明及不可推翻的事實。

In relation to section 65B statements :

The written statement of [Mr X] was read to you. It constitutes evidence in this case just as if Mr X had appeared in person before you, and given direct oral evidence of the matters in that statement. The matters in the statement should be considered by you along with all the other evidence. You are not bound to accept what is said in the statement. [On the other hand, since there has been no evidence to contradict the statement, you might feel that you are able to accept what it says.]

有關第 65B 條的陳述書：

之前已經向你們宣讀了[X 先生] 的書面陳述。這份陳述書構成本案的證據，如同[X 先生] 本人在你們面前，就該陳述書内的事項作出直接的口頭證據一樣。你們在考慮所有其他的證據時，必須一併考慮該陳述書内的事項。你們無須一定要接納陳述書的内容為真確。 [ 另一方面，由於案中沒有任何證據反駁陳述書的内容，你們或許會認爲陳述書的内容可以獲接納為真確的。]

Archbold Hong Kong (2013) 10-7 and 8; 10-20 and 21 Bruce & McCoy, Criminal Evidence in Hong Kong II [201] to [303]

Issued September 2013 35.1

35. HEARSAY EVIDENCE ADMITTED UNDER SECTIONS 70, 73 AND 77F OF THE EVIDENCE ORDINANCE 根據《證據條例》第 70、 73 和 7 7 F 條接納的傳聞證據

Where the hearsay evidence is not admitted as agreed evidence or is the subject of challenge:

The general rule in the courts is that unless evidence is agreed it has to be given orally from the witness box. Then, you have the opportunity to see the witness for yourselves and judge the evidence accordingly. However, there are certain circumstances where a witness is unavailable and the evidence is given in other ways, for example by reading out his earlier deposition. In this case you have heard evidence from X [by the reading of X‘s deposition]. That is evidence in the case which you can consider and to which it is for you to decide what weight, if any, to attach, but as X did not come to court that evidence has certain limitations which I must draw to your attention.

1. You have not had the opportunity of seeing and hearing X in the witness box, and sometimes when you do see and hear a witness you get a much clearer idea of whether his evidence is honest and accurate.

[AND where appropriate]:

2. X‘s evidence has not been tested under cross-examination*, and you have not had the opportunity of seeing how his evidence survived this form of challenge.

[Refer to matters, by way of illustration, that might have been put in cross-examination in the particular case and any particular matters canvassed during the trial which might further affect the jury‘s view of X‘s evidence]

如果傳聞證據不是以雙方同意的證據這個形式被接納為證據，或者傳聞證據受到某方質疑：

法庭一般的規則是：除非證人的證供是雙方同意的，否則證人便須在證人台上親口作證。這樣，你們便有機會親眼觀察那個證人作證，並根據所見來判斷他的證供。不過，在某些情況下，證人不能出庭作證而要用其他方式作證，例如向你們讀出他較早時作出的書面供詞。本案裡你們聽過 X 的證供 [ 因為有人向你們讀出 X 的書面供詞]。這是本案的證據，可供你們考慮。這樣的證據有沒有任何分量和有多少分量，是由你們決定的。但由於 X 沒有出庭作證，這樣的證據是有不足之處的，本席必須提醒你們注意這些不足之處。

1. 你們沒有機會觀察 X 在證人台上的表現和聆聽他說的話。有時如果你們觀察證人的表現和聆聽他說的話，會更加清楚知道他的證供是否坦誠準確。

[ 及如適用] ：

Issued September 2013 35.2

2. X 的證供沒有受到盤問的考驗* ，因此你們沒有機會觀察他的證供能否經過這種考驗仍然可以信賴。

[ 舉例說明案中有哪些事情是可能在盤問中提出以盤問 X 的，和說明有哪些在審訊時討論過的事情是可能會進一步影響陪審團對 X 的證供的看法。]

* Under section 70 and section 77F there may have been cross-examination before a magistrate or other person, in which case identify the areas of such cross-examination but, if evidence relevant to that testimony came to light subsequent to the cross-examination identify those areas and indicate the sort of matters that might have been put in cross-examination in addition.

Note: It may be appropriate to tailor the above direction to other circumstances in which hearsay evidence is admitted eg dying declarations etc.

Archbold Hong Kong (2013) 9-45 and 11-15. Bruce & McCoy, Criminal Evidence in Hong Kong VI [4] to [52]

Issued September 2013 36.1

36. Drugs - Money Found In Possession Of Defendant / Evidence Of Extravagant Lifestyle, etc. 藥物— 被告人被發現管有的錢財／生活奢侈揮霍的證據等等

The prosecution has called evidence that the defendant [eg was found to be in possession of $..] (and/or to the effect that he) [was living to a standard which they suggest was much higher than that which might be expected of a man of his means].

That evidence, if you accept it, does not by itself prove anything against the defendant. However, if you are sure that:

(a) the defendant was indeed [in possession of this money and/or living to a standard much higher than might be expected in all the circumstances of the case];

(b) the defendant's explanation for the [money][standard of living] is untrue; and

(c) the [money][standard of living] can only be explained by continuing unlawful trafficking in drugs as opposed to unlawfully trafficking in drugs in the past, you may, if you think fit, take that evidence into account when deciding whether the defendant was unlawfully trafficking in drugs as alleged in the indictment.

控方提出證據指證被告人[ 例如：被發現管有 $ … ]（及/ 或指證他）[ 享有的生活水平，據控方所說，比一個和他這種經濟能力的人所能預期享有的生活水平高出很多] 。

如果你們相信這些證據，這些證據本身也不能證明被告人犯了甚麼罪，但如果你們肯定：

( a ) 被告人確實[ 管有這些錢，及 / 或享有的生活水平比起他在本案顯示的所有情況下預期可以享有的生活水平高出很多] ；

( b ) 被告人提出的關於 [ 這些錢][他的生活水平 ] 的解釋不是真的；及

( c ) [ 這些錢 ][他的生活水平 ] 只能夠解釋為持續不斷的非法販運危險藥物的結果，而不是以前非法販運危險藥物的結果，

如果你們能如此肯定，在你們認為適當的情況下，你們便可以在決定被告人是否如公訴書所指非法販運危險藥物時，把這些證據考慮在內。

Issued September 2013 36.2

Notes :

1. See R v Gordon [1995] 2 Cr App R 61, R v Diane Morris [1995] 2 Cr App R 69, R v Grant [1996] 1 Cr App R 73 and R v Malik [2000] 2 Cr App R 8. Re 'lifestyle', see R v Scott [1996] Crim LR 652.

2. In R v Guney [1998] 2 Crim App R 242, the Court of Appeal held that it is for the trial judge to determine whether cash and lifestyle may be relevant and admissible to any issue in the case. The court decided that in limited circumstances this kind of evidence might also be relevant to the issue of possession only. The admissibility of such evidence depends on the particular circumstances of the case, and the issues raised (for example, the defendant was not 'knowingly' in possession). Such evidence is more likely to be relevant where the issue is unlawful trafficking by possession for the purposes of unlawful trafficking. See also R v Griffiths [1998] Crim LR 567, CA.

3. A similar direction should be given where the issue is possession of dangerous drugs for the purpose of unlawful trafficking and documents containing references to money transactions allegedly relating to transactions involving dangerous drugs are admitted in evidence. See R v Lovelock [1997] EWCA Crim.1123, 1997 Crim LR 821, and R v Chubb [1998] EWCA Crim. 638 (20 February 1998).

Archbold Hong Kong (2013) 29-48 et seq. Archbold (2013) 27-71 et seq. Blackstone (2013) F1.14 Bruce & McCoy, Criminal Evidence in Hong Kong I [102].

Issued September 2013 37.1

IV. THE DEFENDANT

37. DEFENDANT‘S CHARACTER — GOOD

Guidance as to the ambit of the discretion in the judge — to give a credibility and a propensity direction whenever a defendant has testified or made pre-trial answers or statements — is given in the decision of the Court of Final Appeal in Tang Siu Man v HKSAR No. 2 [1998] HKCFAR 107.

The Court commented that given the wide range of circumstances in which good character (in all its suggested manifestations) might come into play, ‗any set rule of practice apt to cover all cases must necessarily be suspect.‘ Where there is evidence of good character it will not always be necessary to give both limbs of the Vye direction; and the mere absence of any previous convictions does not of itself necessarily drive a judge to give a good character direction. The conclusions of the CFA were as follows, (at 133B-134 A) :

―1 There is no need in this jurisdiction to impose the Vye and Aziz regime on trial judges. The regime has not been demonstrated to work well in other jurisdictions. At the extremity, those rules of practice require trial judges to give directions testing the limits of common sense, and then to add qualifications in an attempt to return to the confines of common sense. Whatever the imperatives making that regime desirable in England, none has been demonstrated here.

2. Where positive evidence of good character has been adduced and nothing discreditable concerning the defendant has emerged, a summing-up which fails to give a full Vye direction — and if needs be something more — might well render the summing-up unbalanced and unfair.

3. As a matter of humanity and indulgence — expressing the traditional inclination of the common law in favour of the defendant in criminal trials, springing from ―the time when the law was according to the common estimation of mankind severer than it should have been‖ per Cockburn CJ in Rowton (1865) 19 Cox CC 25 at 30 — trial judges have often in practice given both limbs of the good character direction on mere absence of previous convictions. They will doubtless continue to do so in the future. Sometimes one limb of the direction is enough : for example, where in essence the central issue is credibility and an inclination on the part of the jury to believe the defendant means in effect he is entitled to an acquittal : to fail to give the ―credibility‖ direction in such circumstances may well render the summing-up unbalanced and unfair : to give the ―propensity‖ limb may be a surplusage.

4. ―Absence of previous convictions‖ is a concept indulgently construed by trial judges. One or two minor offences,

Issued September 2013 37.2

not related to the charges in question, may be overlooked. A string of offences, even though unrelated, will begin to strain against common sense in the context of ―good character‖. The judge‘s margin of assessment is wide in this area.

5. Where a person with a clear record is before the court, but in the course of the trial, discreditable matters concerning him (or her) are revealed, the judge again has a wide margin of assessment. Dishonest conduct, to borrow an example from Thomas J‘s judgment in Falealili [1996] 3NZLR 664, may be very relevant to credibility, but irrelevant to propensity towards sexual offences. To simply give the ―propensity‖ direction alone may be appropriate — or none at all.

6. At the end of the day, the summing-up will be looked at by the appellate courts to see if it is fair and balanced. That is the ultimate test.‖

Wherever there is any doubt as to whether both limbs of the character direction apply, or wherever it is thought that it may be necessary in the particular circumstances to modify a ‗character direction‘, it is desirable to canvass the proposed direction with counsel before their closing speeches.

In R v Durbin [1995] 2 Cr App R 84, 91, the court laid down guidelines for cases in which it might be appropriate to give a modified direction. The court stressed the importance of the principle that ‗The jury should not be directed to approach the case on a basis which ... is artificial or untrue.‘ Generally, however, this direction should not be watered down.

The specimen directions provided below are therefore to be regarded as samples to be adapted, or cut, or shaped, according to the particular case.

You have heard that the defendant is a man/young man of good character [not just in the sense that he has no convictions recorded against him, but witnesses have spoken of his positive qualities]. Of course, good character cannot by itself provide a defence to a criminal charge, but it is evidence which you should take into account in his favour in the following way/s:

下面提供的指引樣本應該只視為例子，需要根據個別案件去修正、剪裁和改動。

你們聽到被告人是一個有良好品格的人/ 年青人[ 意思不僅是他沒有犯罪記錄，而且還有證人講述他的優點 ]。當然，良好品格本身不能作為刑事控罪的辯護理由，但你們考慮下列事情時，應該把他的良好品格視為對他有利的證據：

Credibility

If a defendant does not give evidence and he has not made any statement to the police, or other authority or person which is admitted in evidence, ignore 1 below.

Issued September 2013 37.3

1. (If a defendant has given evidence) In the first place, the defendant has given evidence, and as with any man of good character his good character supports his credibility. This means it is a factor which you should take into account when deciding whether you believe his evidence.

(If a defendant has not given evidence, but has eg made a statement to the police or has answered questions in an interview). In the first place, although the defendant has chosen not to give evidence before you, he did, as you know give [an explanation to the police]. In considering [that explanation] and what weight you should give it, you should bear in mind that it was made by a person of good character, and take that into account when deciding whether you can believe it.

可信性

1. （如果被告人有作證）首先，被告人有在庭上作證，正如任何有良好品格的人一樣，他的良好品格有助於證明他說的話可信。意思是：你們決定是否相信他的證供時，應該考慮他的良好品格這個因素。

（如果被告人沒有作證，但，譬如，曾向警方作口供，或者在會面時曾回答問題）。首先，雖然被告人不選擇在你們面前作證，但你們知道他有[ 向警方解釋過 ] 。你們考慮 [ 這個解釋] 和考慮應該給予 [ 這個解釋] 多少分量時，應該謹記 [ 這個解釋] 是有良好品格的人作出的。你們決定是否相信[ 這個解釋 ] 時，應該顧及這一點。

The direction as to propensity may be given whether or not the defendant has testified and whether or not he has made out-of-court statements adduced in evidence.

Propensity

2. In the second place, the fact that he is of good character may mean that he is less likely than otherwise might be the case to commit this crime now.

I have said that these are matters to which you should have regard in the defendant‘s favour. It is for you to decide what weight you should give to them in this case. In doing this you are entitled to take into account everything you have heard about the defendant, including his age, […] and […]. (Obviously the importance of good character will vary from case to case, and becomes stronger if the defendant is a person of unblemished character of mature years, or has a positively good character, and at this stage the benefit of this to a defendant whose good character justifies it may be pointed out to the jury, with words such as: Having regard to what you know about this defendant you may think that he is entitled to ask you to give [considerable] weight to his good character when deciding whether the prosecution has satisfied you of his guilt).

Issued September 2013 37.4

犯罪傾向

2. 其次，被告人是有良好品格的人，這一點可能表示他和沒有良好品格的人相比，犯本案控罪的可能性較低。

本席曾說，這些事情是你們應當視為對被告人有利的。本案裡，這些有利被告人的事情應該有多少分量，由你們決定。你們決定這些事情有多少分量時，可以考慮你們聽到的關於被告人的所有證據，包括他的年齡、 [ … ] 和 [ … ] 。（良好品格的重要性顯然因案而異。如果被告人已是中年人或老年人，卻仍是品格無瑕，或者被告人的品格有值得稱道的優點，良好品格這個因素便更為有力。在這階段可以向陪審團指出被告人因為有良好品格而理應得到的有利之處，例如可以說：你們考慮過你們所知的有關被告人的事情後，也許會認為被告人有足夠條件要求你們在決定控方是否已使你們信納他有罪時，對他的良好品格給予[ 相當大的 ] 分量）。

Notes:

(1) ‗Character, bad or good, is not simply a matter of the presence or absence of previous convictions, nor is it the same as reputation, though the one may be evidence of the other.‘ (Durbin, supra, at page 92)

(2) Do not detract or qualify from the direction, for example by commenting that initially everyone has a good character. (See Berrada (1990) 91 Cr App R 131; Cohen (1990) 91 Cr App R 125)

(3) Where the defendant has called character witnesses, the jury should be reminded of their evidence and of the way it relates to credibility.

(4) ―A defendant who is of good character is entitled* to have the judge direct the jury as to its relevance even if he is jointly tried with a defendant of bad character. … The judge will have to decide what if anything to say about the character of the defendant who is not of good character. He might think it best to grasp the nettle and tell the jury that they have to try the case on the evidence; there having been no evidence about the character of the particular defendant, they must not speculate and must not take the absence of any information as to his character as any evidence against him. On the other hand a judge might think it best to say nothing about the absence of evidence as to character of the co-defendant].‖ ―Where the co-defendant‘s bad character is in evidence, a full direction on its significance must be given R v Cain 99 Cr App R 208‖ Archbold (2013) 4-484.

(* ‗Entitled‘ must be read subject to the decision in Tang Siu Man. But the point is that where the judge does give a direction as to the relevance of good character in relation to one defendant he must decide how he is to deal with the contrast between that fact, on the one hand, and, on the other, silence about the character of another defendant.)

Issued September 2013 37.5

(5) As for the position of a defendant who has pleaded guilty to another offence upon the same indictment and his entitlement nonetheless to a character direction, see Teasdale (1994) 99 Cr App R 80.

(6) Where an accused is of mature years and is of unblemished character and /or where positive evidence of his good character has been adduced (beyond the fact of a record clear of any material blemish) attention should be drawn to the combined impact of maturity and good character. On the other hand, where the defendant with a good character is young, a good character direction should not be diluted or rendered nugatory by reference to his mere youth or to the fact (if it is a fact) that no character witnesses have been called.

(7) A good character direction should be given in the form of an affirmative statement rather than a rhetorical question (R v Lloyd [2002] Cr App R 355) and should not be qualified by suggesting that its significance in relation to propensity is less when the offence is spontaneous (R v Fitton [2001] EWCA Crim 215).

(8) For a character direction involving a person with few ties to Hong Kong, or in regard to a person about whom discreditable conduct emerges at trial, see HKSAR v Mahommed Saleem (No. 2) [2009] 5 HKLRD 478.

Archbold Hong Kong (2013) 4-228 Archbold (2013) 4-484 to 487 Blackstone (2013) F13.1 et seq. Bruce & McCoy, Criminal Evidence in Hong Kong I [652] to [700]

Issued September 2013 38.1

38. DEFENDANT‘S CHARACTER — BAD 被告人的品格 — 不良

(Where not introduced as evidence of propensity)

You have heard that the defendant has previous convictions [for .... ]. This has been given in evidence because he [has attacked the character of a prosecution witness and it is right that in those circumstances you should know the character of the person making that attack] [has claimed to be of good character] [has given evidence against a co-defendant, who has cross-examined him on his character].

What is the relevance of the defendant‘s convictions in this case? The only reason why you have heard about his previous convictions is that knowledge of the character of the defendant [who has made this attack] may assist you to judge the truthfulness of his evidence when you come to consider this matter.

You must not assume that the defendant is guilty or that he is not telling the truth because he has previous convictions. His convictions are not relevant at all to the likelihood of his having committed the offence. They are relevant only as to whether you can believe him. You do not have to allow these convictions to affect your judgment. It is for you to decide the extent to which, if at all, his previous convictions help you about that.

你們已聽到被告人以前曾 [ 因……] 而被定罪。控方提出上述證據，是因為他 [ 曾抨擊一名控方證人，指該名證人品格不良，在此情況下，你們也應知道作出該項抨擊的人的品格][聲稱自己品格良好 ][曾作出針對一名共同被告人的證供而遭對方就他的品格作出盤問 ] 。

被告人曾被定罪一事與本案有甚麼關聯呢？控方告訴你們被告人曾被定罪，唯一理由是讓你們知道被告人的品格 [ 他曾抨擊別人] 。在你們判斷被告人的證供是否真實時，他的品格可能會有幫助。

你們絕對不能因被告人以前曾被定罪便假定他有罪或沒有講真話。他的定罪紀錄與他有否可能干犯本案中的罪行完全沒有關聯。唯一的作用是他的定罪紀錄在你們決定能否相信他時，你們應予考慮。你們無須讓這些定罪紀錄影響你們的判斷，你們必須決定他的定罪紀錄在何程度上幫助你們作出判斷（如有幫助的話）。

Add as appropriate :

[The defendant tells you that although he has convictions, he has always pleaded guilty on his previous appearances before the court. This is a matter which you may take into account when deciding what impact his convictions have upon his truthfulness].

Issued September 2013 38.2

[The defendant has admitted that he has on ... occasion[s] pleaded not guilty but has been found guilty by a jury after having given evidence on oath in that case. You are entitled to consider this when deciding whether you can believe him but you must not assume that merely because he has not been believed on a previous occasion he is not telling you the truth on this occasion].

[ 被告人告訴你們，雖然他有定罪紀錄，但他以前總是自己在法庭上認罪的。你們在決定他的定罪紀錄對他的證供的真確性有何影響時，可以把這一點加入考慮] 。

[ 被告人承認曾經有……次被控時他不認罪，但卻在宣誓作供後被陪審員裁定有罪，你們有權在決定在本案中是否相信他時，把這一點列入考慮，但卻絕對不能僅僅因他曾被認為不可信便假定他今次也沒講真話。]

Where there is evidence of previous convictions but where the defendant might pray in aid the absence of convictions of a particular type, the following is a sample direction for adaptation as appropriate :

You have heard that the defendant has been a drug addict and that he has been in prison for drug offences. [Normally, a jury does not hear .. etc ..] In this case, you had to hear about his addiction and his drug offences because it was all part of the history of his relationship with the deceased, and the argument between them was about payment for drugs. But the mere fact that he was an addict and has been in prison for drug offences does not mean that he is not telling you the truth about what happened on the occasions with which you are concerned. He is not on trial before you for being a drug addict or for having been in prison at some stage in the past; and the fact that he has these convictions does not help you in the slightest to decide whether or not he is guilty of murdering Mr. Z. Indeed, he is aged 40 years and he has never been in trouble for any offences of violence, which may mean that he is less likely to commit such an offence as is now suggested against him than otherwise might be the case.

你們已聽到被告人曾是吸毒者和曾因干犯與危險藥物有關的罪行而入獄。[ 陪審團通常不會聽到……等等……] 在本案中，你們必須知道他有毒癮和曾干犯與危險藥物有關的罪行，因為這些都是他和死者以往的關係中的一部分，他和死者之間的爭執便和危險藥物的付款問題有關。不過，即使他曾有毒癮和曾因干犯與危險藥物有關的罪行而入獄，但這並不表示他沒有就你們所需處理的事件講真話。他現時在你們面前受審，並非因為他有毒癮或以前曾經入獄。他的定罪紀錄對你們決定他曾否謀殺 Z 先生完全沒有幫助。事實上，他今年四十歲，但從未牽涉任何暴力罪行，這也許意味著他干犯控方現時所指的罪行的可能性會較有相關定罪紀錄的人為低。

Note: See R v Prince [1990] Crim LR 49, CA and the principles set out in R v Burke 82 Cr App R 156, R v McLeod (1994) The Times, 14 April, R v Carter (1996) The Times, 14 November and R v Miller [1997] 2 Cr App R 178. But, also see Direction 41 and the reference in the notes to the judgment of the Court of Appeal

Issued September 2013 38.3

of England and Wales in R v Randall, a ‗cut throat‘ defence in a murder trial in which a co-accused was held entitled to a direction in respect of propensity as well as credibility arising from evidence led of the other defendant‘s convictions for offences of violence.

Archbold Hong Kong (2013) 4-232 Bruce & McCoy, Criminal Evidence in Hong Kong X [1405]

Note: In England and Wales the law is subject now to the provisions of the Criminal Justice Act, 2003. Archbold (2012) 13-25 et seq.

Issued September 2013 39.1

39. DEFENDANT‘S CONFESSION 被告人招認的事情

There have been produced records of certain interviews which the police say they conducted with the defendant. The prosecution assert that [although you should not accept everything said by the defendant to the police as accurate] nonetheless the interviews contain admissions by the defendant that (state the essence of the admissions) and the prosecution further contend that those admissions are true.

The defendant‘s case is that [he made none of those admissions and that they were fabricated by the police {but that to the extent that he is said to have adopted the admissions by appending his signature to those documents he was forced to do so; that the signatures are therefore worthless; and that the admissions are untrue}] [although he made the confession it is not true].

In deciding whether you can safely reply upon the admissions, you must decide two issues :

1. Did the defendant in fact make the admissions? If you are not sure that he did, you must ignore them. If however you are sure he did, then :

2. Are you sure that the admissions are true? In addressing that issue (whether the admissions / answers were true) decide whether they were, or may have been, made or given as a result of [oppression] [something said or done which was likely to render them unreliable]. If you conclude that the admissions / answers were or may have been obtained by (identifying the person or persons in authority) as a result of [oppression] [something said or done which was likely to render them unreliable] then you must disregard the admissions / answers.

In this case, the defendant alleges that (summarise the allegation). If you conclude that that allegation is or may be correct and that the admissions / answers were or may have been obtained as a result of that conduct, then you must disregard the admissions / answers.

If, however, you are sure that the defendant made the admissions and that they were not obtained in that way, you must nonetheless decide whether you are sure that the admissions are true. If, for whatever reason, you are not sure that the admissions are true, you must disregard them. If on the other hand, you are sure that they are true, you may rely on them. (Remind the jury of any specific weaknesses in the confession evidence which may reflect on its reliability.)

警方說他們和被告人進行了幾次會面，控方已經把這幾次會面的記錄呈堂作證。控方聲稱 [ 雖然你們不應相信被告人對警方所說的每件事情都是準確無誤，] 但在這些會面裡被告人承認了一些事情（扼要地說明被告人承認的事情），而控方更進一步指稱被告人所承認的事情都是真的。

Issued September 2013 39.2

被告人的說法是： [ 他完全沒有承認這些事情，全部都是警方捏造的｛至於警方說他在這些文件上簽名確認他承認的事情，他說他是被逼這樣做的，因此他的簽名都是亳無意義的；他承認的事情不是真的｝][雖然他招認這些事情，但這些事情不是真的 ] 。

你們決定是否可以穩妥地以被告人承認的事情作為判案依據時，必須考慮兩點：

1. 被告人事實上有沒有作出這些招認？如果你們不肯定他有作出這些招認，便不須理會這些招認。但如果你們肯定他有作出這些招認，那麼：

2. 你們是否肯定該些招認的內容屬實？你們在考慮這一點時（即被告人的招認／提供的答案的內容是否屬實），要決定被告人的招認或提供這些答案是否或可能因為是 [ 受到壓迫 ][某些人說了某些話或做了某些事，而這些說過的話或做過的事很可能使到被告人的招認／提供的答案不可靠]。如果你們斷定被告人承認這些事情/ 提供這些答案是因為或可能因為來自（指出是那一位／那些有權力的人士的） [ 壓迫手段 ][某些話或某些事，而這些說過的話或做過的事很可能使到被告人的招認／提供的答案不可靠] ，你們便不應理會被告人這些承認的事情／答案。

本案裡，被告人指稱（簡述被告人指稱甚麼）。如果你們斷定被告人的指稱是或可能是真確的，而被告人是或可能是因為這樣的行為而作出招認／提供這些答案的，你們必須把該些招認／提供的答案摒棄／抛諸腦後，不應以之為斷案依據。

但是，如果你們肯定被告人確曾作出招認，而被告人所指稱的上述情況並無發生，你們還必須考慮你們是否肯定這些招認的內容是真確的。不論甚麼原因，如果你們不肯定這些招認的內容是真的，你們必須棄之不理。如果你們肯定被告人這些承認的事情是真的，便可以把它們作為斷案依據。（提醒陪審團注意招認的證據裡有甚麼具體弱點可以反映這些證據是否可靠。）

Note : The last two paragraphs of this direction depart from the previous directions which advised the jury that a finding of oppressive circumstances led, not necessarily to rejection of the confession, but to an assessment of weight. That reflected the law in Chan Wei Keung v The Queen [1967] 2 AC 160 which enabled the jury to rely on a confession even if it was or may have been made as a result of oppression or other improper circumstances, so long as the jury were sure it was made and that it was true. Strictly speaking, that remains the law in Hong Kong but that approach has now been disapproved by the Privy Council in Wizard v the Queen [2007] UKPC 47 which endorses R v Mushtaq [2005] UKHL 25; [2005] 1 WLR 1513 as being declaratory of the common law. Chan Wei Keung pre-dated the Hong Kong Bill of Rights Ordinance and the Basic Law and the consequential constitutional protection of the right against self-incrimination. It is this right that forms the core of the decisions in

Issued September 2013 39.3

Mushtaq and Wizard. It therefore seems to those drafting these directions that a direction along the new suggested line is much the safer course.

Mental Handicap

Where a confession has been made by someone who is mentally handicapped, it is incumbent on a judge in the summing up to render a full statement of the accused‘s case against the confession being accepted as true and accurate and to adopt the standard direction. In those circumstances, add with such modifications as are appropriate :

In this case you should approach the evidence of the defendant's confession with special caution before convicting him on it. I say this for three reasons. First, because the case against him depends wholly/substantially on that confession. Second, because he is a mentally handicapped person. Third, because no independent person was present when he made it – that is, someone other than the police officer(s).

弱智

本案裡，你們衡量被告人招認的證據時，必須特別謹慎，才可以根據這些證據裁定他有罪。本席這樣說有三個理由：第一，因為指控他的案情全部/ 主要倚靠他的招認。第二，因為他是弱智人士。第三，因為他作出這個招認時除了警察以外，並沒有獨立人士在場。

Archbold Hong Kong (2013) 15-91 and 15-116 Bruce & McCoy, Criminal Evidence in Hong Kong V [1054]

Issued September 2013 40.1

40. DEFENDANT‘S MIXED STATEMENT 被告人混雜的陳述

The direction applies where the defendant has not given evidence.

The direction then to be given (below) is that suggested in R v Sharp [1988] 1 WLR 7 and approved of in the judgment of the CFA in Li Defan v HKSAR (2002) 5 HKCFAR 320 at 334 §29. It is not intended to apply where the defendant gives evidence, in which event the real question is what weight is to be given to the evidence which the defendant gives : see R v Vu Trong–minh [1995] 1 HKCLR 24; and R v Cheung Hon Kwong Cr App No. 503 of 1989 (unreported).

―Where the Sharp direction is given, it is not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than the evidence of the facts they state‖ (R v Duncan (1981) 73 Cr App R 359). See also R v Aziz [1996] 1 AC 41.

The defendant‘s statement to the police contains both incriminating parts and [excuses] [explanations]. You must consider the whole of the statement in deciding where the truth lies. You may feel that the incriminating parts are likely to be true – for why else would he have made them? You may feel that there is less weight to be attached to his [excuses] [explanations], for they were not made on oath, have not been repeated on oath, and have not been tested by cross examination.

被告人對警方作出的口供包含顯示被告人有罪的部分和 [ 辯解][解釋 ] 。你們必須考慮口供的全部內容以找出真相。你們或會覺得顯示被告人有罪的部分很可能是真的— 否則他怎會這樣說呢？也許你們會認為他的 [ 辯解][解釋] 應有的分量會較少，這是因為它們既非在宣誓下說出，亦非在宣誓下重申，也沒有透過盤問來驗證。

Where there is an issue whether the statement was made or whether, if made, it was made freely, see Direction 39.

See R v Garrod [1997] Crim LR 445 and [1996] EWCA Crim 1149 for guidance as to which statements are to be regarded as ‗mixed‘.

―We would hold that where the statement contains an admission of fact which are [sic] significant to any issue in the case, meaning those which are capable of adding some degree of weight to the prosecution case on an issue which is relevant to guilt, then the statement must be regarded as ‗mixed‘ for the purpose of this rule‖.

Also, Western v DPP [1997] 1 Cr App R 474.

Also, see the judgment of the Court of Appeal in HKSAR v Yuen Man Tung (unreported CACC 442 /2003, at paragraph 18).

Note : The statutory definition of ‗confession‘ in PACE has no statutory equivalent in Hong Kong.

Issued September 2013 40.2

Archbold Hong Kong (2013) 15-107 et seq. Archbold (2013) 15-350 et seq. Blackstone (2013) F17.82 Bruce & McCoy, Criminal Evidence in Hong Kong V [1203] to [1250]

Issued September 2013 41.1

41. DEFENDANT‘S EVIDENCE — EFFECT ON OTHER DEFENDANTS 被告人的證供 — 對其他被告人的影響

(Where a defendant gives evidence in his own defence which damages a co-defendant's case or tends to implicate a co-defendant in the commission of the offence(s) for which he is being tried.)

In Law Chung Ki and another v HKSAR [2005] 8 HKCFAR 701 the Court of Final Appeal addressed the issue of the appropriate direction to give in a ‗cut-throat‘ defence case and, at paragraph 18 page 710 J-711 D, suggested the following direction :

When an accused enters the witness-box it is usually for the purpose of giving an account simply to the effect that he is innocent. In other words, it is for the purpose of giving an account exculpatory of himself. Sometimes, however, an accused‘s account is not confined to saying things in his own favour. And it includes saying things against another or other accused. He may say that they are guilty or, short of that, he may say something that at least undermines their position in some way. So it can happen that an accused gives an account that is exculpatory of himself and, at the same time, inculpatory of another or other accused.

There are cases in which two or more [defendants] enter the witness-box, and each gives an account that is exculpatory of himself and, at the same time, inculpatory of another or other accused. Lawyers commonly refer to such accounts as ‗cut-throat‘ defences. [Describe the nub of the nature of the self- exculpatory accounts of the two or more defendants together with their evidence against their respective co-accused.] What a jury must always bear in mind about evidence given in support of a ‗cut-throat‘ defence is this. If the evidence given in support of a ‗cut-throat‘ defence leaves [you] [not sure] as to the guilt of the [defendant] who gave such evidence in his own favour then he must be acquitted. But such evidence cannot adversely affect any [defendant] against whom it is given unless [you are sure] that it is true. All of this is simply a part of the law that [unless you are sure of a defendant‘s] guilt, then he must be acquitted.

通常被告人在證人台上作證的目的只是要說明自己是清白的。換言之，他的目的是作證表示自己無罪。不過，有時被告人的證供不限於對自己有利的事情，還包括不利於另一個或其他被告人的事情。他可能說他們有罪，或者即使不是如此，也可能作出一些最少會在某方面損害他們的說法。因此，有可能被告人的證供是表示自己無罪的同時，又表示另一個或其他被告人有罪。

有些情況是兩個或多過兩個 [ 被告人 ] 上證人台作證，每人講述的證供都是表示自己無罪，而同時表示另一個或其他被告人有罪。律師通常把這種證供稱為‘互砍式’抗辯。 [ 當兩個或多過兩個被告人作證表示自己無罪，同時作出對同案被告人不利的證供時，便扼要地描述這些證供的性質。 ] 陪審團處理支持‘互砍式’抗辯的證供時一定要時常留意以下幾點：如果被告人用來支持對他自己有利的‘互砍式’抗辯的證供使 [ 你們][不肯定] 這個[ 被告人 ] 有沒有罪，你們便必須判他無罪。但你們不可以對被這種證供針對的

Issued September 2013 41.2

任何[ 被告人] 作出對其不利的判斷，除非 [ 你們肯定 ] 這種證供是真的。以上所說其實只是 [ 除非你們肯定一名被告人 ] 有罪，否則必須判他無罪這個法律原則的一部分。

The Court went on to note that the suggested direction did not contain a direction in respect of ‗self-interest‘, which formed part of the former specimen direction. Of that, the Court said at paragraphs 21 and 22 at pages 712 I-712B :

―Our view is that, at least in general, the judge should not take the initiative of giving the jury a self interest warning. Of course it may happen that what defence counsel have suggested in cross-examination and/or urged in speech may drive the judge to feel that he should say something about self-interest. Or the judge may feel driven to do that by a question sent to him by the jury. If the judge feels driven to say something about self-interest, he might do so along the following lines:

Each [defendant] is presumed innocent unless and until [his guilt is proven so that you are sure of it]. So the thought that he may have been more interested in getting himself acquitted than in telling the truth should not form any part of your thinking when deciding whether to acquit or convict him. It is, however, something which you may take into account when deciding whether you feel sure that what he says against a co-[defendant] is true. All of this, too, is simply a part of the law that [unless you are sure of a defendant‘s] guilt, then he must be acquitted.

每個[ 被告人 ] 都是被假定無罪，除非 [ 你們肯定控方已證明他有罪 ]，因此你們決定判他無罪或有罪時，不應該有以下的想法，即他可能想洗脫自己的罪名多過想講出真相。不過，當你們考慮是不是可以肯定他針對同案 [ 被告人 ] 的證供是否真實時，你們卻可以把上述想法考慮在內。以上所說其實也是 [ 除非你們肯定一名被告人 ] 有罪，否則必須判他無罪這個法律原則的一部分。

Notes:

1. Even where it is obvious that the co-defendant is an accomplice there is no rule of practice and certainly none of law which obliges a judge to give the jury the warning about ‗corroboration‘ which is often given when an accomplice gives evidence for the prosecution. Such a warning may nevertheless be given at the discretion of the judge if he thinks it should be, having regard to the nature and severity of the attack made upon a co-defendant. It is not expected that the need for this precaution will arise on more than rare occasions. See R v Knowlden and Knowlden (1983) 77 Cr App R 94. Also, see Corroboration Direction 23.

2. In R v Randall [2004] 1 Cr App R 26 p.375 Lord Steyn said of the facts arising in the case, a ‗cut-throat‘ defence in a murder case in which evidence was led of the convictions of offences of violence in respect of a co-accused, that the appellant was entitled to a direction that the evidence went not only to credibility but also to the likelihood that the co-accused was the one who attacked the deceased and that it tended to show that the

Issued September 2013 41.3

version put forward by the appellant was more probable than that put forward by the co-accused.

―35. … where evidence of propensity of a co-accused is relevant to a fact in issue between the Crown and the other accused it is not necessary for a trial judge to direct the jury to ignore that evidence in considering the case against the co-accused. Justice does not require that such a direction be given. Moreover, such a direction would needlessly perplex juries.‖

3. The ‗cut-throat‘ direction, though couched in terms of defendants giving evidence against each other, would seem also to apply in principle to circumstances where one or more defendants give evidence and others do not, and their evidence tends to undermine the cases of, or support the prosecution case against, those who did not give evidence.

Archbold Hong Kong (2013) 4-221 et seq. Archbold (2013) 4-476 et seq; 8-297 Blackstone (2013) F12.67 et seq. Bruce & McCoy, Criminal Evidence in Hong Kong VIII [252]

Issued September 2013 42.1

42. DEFENDANT‘S LIES (outside court or in the course of the trial)

In Yuen Kwai Choi [2003] 6 HKCFAR 113, re-affirmed in Jim Fai v HKSAR (2006) 9 HKCFAR 85, the CFA confirmed the observation of the English Court of Appeal in R v Burge and Pegg [1996] 1 Cr App R 163 that in cases where a defendant had given evidence a Lucas lie direction is not always necessary and, if given where not necessary, merely adds complexity and will do more harm than good.

In the judgment of the CFA Chan PJ noted (p.128 para.37) :

37. In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate. R v Barnett [2002] 2 Cr App R 168, 173. In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient. See R v Dehar [1969] NZLR 763 at p.765; R v Man Bing Chou [1993] 2 HKCLR 71; R v Liacopoulos and others, (unrep., 31 August 1994), referred to in R v Burge and Pegg [1996] 1 Cr App R 163 at pp.172 to 173. …‖

Of the circumstances in which a direction on lies is necessary he said, (para.38) :

―38. Where there is a risk that the jury may regard lies told by an accused as probative of his guilt, as in the case where the prosecution address the jury on the basis that the accused has lied in what he said and that the lie is supportive of the prosecution's case (e.g. in R v Mok Lun, (unrep., Crim App No 502 of 1993; R v Ho Che Chung [1994] 2 HKC 148; R v Wai Wing Sang and another [1992] 2 HKCLR 23), or where there is a danger that the jury may in any way misuse the lie, it is necessary to give a direction on lies. See R v Richens [1993] 4 All ER 877 at p.886 and the second paragraph of the conclusions in HKSAR v Mo Shiu Shing [1999] 2 HKLRD 155 at p.168. …‖

In considering whether or not to give such a direction and its ambit the judge should consult counsel.

Of the contents of the direction Chan PJ said (para.39) :

―39. Where a direction on lies is required, the jury must be directed that a lie in itself can never prove guilt and that they cannot use the lie to strengthen or establish the prosecution's case unless they are satisfied that the lie was told because: ‗he was unable to account innocently for the evidence that has been given against him.‘ (Edwards v R (1993) 178 CLR 193 at p.199); or ‗there is no innocent motive for the

Issued September 2013 42.2

lie.‘ (R v Goodway (1994) 98 Cr App R 11 at p.15). The jury should also be reminded that there may be innocent reasons for the lie other than consciousness of guilt (HKSAR v Mo Shiu Shing [1999] 2 HKLRD 155 at p.168H). The terms of the direction must, however, ultimately depend on the circumstances of each case. In deciding what language to adopt, a trial judge should consider the use to which the lie in question is intended to be put or may be put, and the possible effect it may have on the accused‘s case, always bearing in mind that the purpose of such a direction is to avoid possible misuse of lies by the jury. Reference can be made to the specimen directions approved by the Court of Appeal in HKSAR v Mo Shiu Shing [1999] 2 HKLRD 155 at p.169.‖

The following is the basic Lucas direction to be given only when the need arises : [see Note 1]

It is alleged (admitted) that the defendant lied to the police (or X) in saying (that ….) and you are entitled to consider whether this supports the case brought against him by the prosecution. In this regard you should consider two questions:

1. You must decide whether the defendant did in fact tell (these) lies. If you are not sure he did, ignore the matter altogether. If you are sure, then next consider:

2. Why did the defendant lie? The mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, and they may possibly be ‗innocent‘ ones in the sense that they do not give any indication of guilt, for example lies to bolster a true defence, to protect somebody else, to conceal some disgraceful conduct (other than) (short of) the commission of the offence, or out of panic or confusion.

If you think that there is, or may be, an innocent explanation for his lies then you should take no notice of them. It is only if you are sure that he did not lie for an ‗innocent‘ reason that his lies can be regarded by you as evidence which supports the prosecution‘s case.

控方指（或：被告人承認）被告人曾向警方（或 X ）說謊，而被告人的謊言是（… ）。你們可以考慮這一點會不會支持控方指控他的案情。在這方面你們應該考慮兩個問題：

1. 你們必須決定被告人是否確實說過（這些）謊言。如果你們不肯定他說過，便根本不要理會此事。如果你們肯定他說過，跟着便要考慮：

Issued September 2013 42.3

2. 被告人為甚麼說謊？被告人曾說謊，單單這一點本身不是被告人有罪的證據。被告人說謊可能有很多原因，而這些原因可能是‘清白’的，意思是：這些原因完全沒有顯示被告人有罪，例如他說謊是為了使一個真實的辯護理由更具說服力，或為了保護他人，或為了掩飾（與本案的控罪無關的）（不至於構成本案的控罪的）某些不光彩行為，或是由於驚慌失措或混亂所致。

如果你們認為被告人說謊，是有或可能有一個清白的解釋，你們便不應該理會這些謊言。只有當你們肯定他說謊不是為了‘清白’的原因，你們才可以把他的謊言視為支持控方案情的證據。

Note:

1. The ‗abbreviated direction‘ contained in the previous Specimen Directions has been removed in light of the judgment of the Court of Appeal in HKSAR and Huang Song Fu (unreported) CACC141/2005. In the judgment of the Court of Appeal, Stuart-Moore VP said:

―24. The court in HKSAR v Mo Shiu-shing (at page 168 F-H) had, as we have said, also left open an abbreviated direction, falling short of the full direction set out in the previous paragraph in that it did not include words to the effect that if the jury were sure that the defendant had not lied for an innocent reason, his lies could be regarded by them as evidence which supported the prosecution case. We have concluded in the light of the submissions made in this case that whenever directing juries on lies, judges should in future give the full direction (set out in paragraph 23 above). To this extent, therefore, the judgment in Mo Shiu-shing‘s case must be modified and although an omission to direct the jury on lies in full will by no means necessarily be fatal to a summing up, the full direction should ensure that there can be no suggestion that the proper approach has not been taken by a jury when they are considering how to regard a lie that has not been given for an innocent reason.

25. Finally, having regard to this modification, we need to deal with one further passage in Mo Shiu-shing which (at page 169 F-H) reads:

―We emphasise again what Mortimer JA said in R v Ng Chi Wai & Another (unrep., Crim App No 346 of 1996, [1997] HKLY 223). The circumstances in which a direction (should be given) that a lie may support the prosecution‘s case will be rare but may be appropriate where: (1) a defendant has relied upon an alibi; and (2) the judge concludes that it is necessary or desirable for the jury to look for support for some piece of

Issued September 2013 42.4

evidence, and that support includes a material lie upon which the prosecution properly relies because it has been proved or admitted.

Lastly on this topic, if the lie is being used as corroborative evidence in the strict sense (eg in a trial of a sexual offence) it must, of course, be evidence that comes from a source which is independent of the evidence it is being used to corroborate.‖ (Emphasis added)

26. It follows from the conclusions we have already expressed and from Chan PJ‘s judgment in Yuen Kwai-choi v HKSAR that as there will only be one standard direction on lies and that it is for the judge to decide after consultation with counsel when such a direction needs to be given, the ―rare‖ direction to be used in cases where an alibi has been called or where a lie is used in an independent corroborative sense will now be one and the same direction as in all other cases where a ‗lies‘ direction is considered to be appropriate.‖

In FAMC No. 7 of 2007 the Appellate Committee of the Court of Final Appeal refused leave to appeal.

2. In R v Burge and Pegg [1996] 1 Cr App R 163 the court identified the following four main circumstances in which it would be appropriate to give a Lucas direction:

‗(1) Where the defence relies on an alibi (see also R v Harron [1996] 2 Cr App R 457 and R v Lesley [1996] 1 Cr App R 39).

(2) Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant.

(3) Where the prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which is sought to be proved.

(4) Where although the prosecution has not adopted the approach (in 3. above) the judge reasonably envisages that there is a real danger that the jury may do so.‘

3. See also R v Goodway 98 Cr App R 11; R v Bey 98 Cr App R 158, and R v Keeton [1995] 2 Cr App R 241 and R v Taylor [1998] Crim LR 822. Thus if a ‗Lucas‘ direction is called for in a murder case in which the defendant admits the killing but raises the defence of provocation, the jury must be directed that they may take the defendant‘s lies into account only if they are sure that when telling lies he was concerned to avoid responsibility for murder rather than for a less culpable form of homicide such as a provoked killing : see R v Richens 98 Cr App R 43.

Issued September 2013 42.5

4. The phrase ‗the motive for the lie must be a realization of guilt and a fear of the truth‘ which appears in Lucas, should not be used; nor should any phrase to the same effect (e.g. ‗through a consciousness of guilt;‘ or ‗you have first to be satisfied that the only reason he lied was because he knew he was guilty‘) Such an approach puts the cart before the horse. Rather, the phrase to be used is ―no innocent motive for the lie‖. [See Mo Shui-shing, where the Court of Appeal also warned against the use of such phrases when directing juries about the significance of flight by a defendant.]

5. For examples of circumstances where no Lucas direction was called for see R v Middleton [2001] Crim LR 251 (inappropriate in that case for lies the jury might conclude that the accused had told in evidence); HKSAR v Chan Boon Ning CACC571/2001 (unreported) C.A. (the mere assertion by counsel for the prosecution that a defendant has lied is far from the automatic trigger for a lies direction); and R v Barnett [2002] 2 Cr App R 167 (a handling case where the accused had given different accounts for his possession of the stolen property).

6. For an example of the need to give a direction that if lies told by the applicant were established they were not to be treated as evidence of guilt see HKSAR v Sham Kit Yi (unreported CACC 128/2003) C.A.

Archbold Hong Kong (2013) 4-207 et seq. Archbold (2013) 4-461 Blackstone (2013) F1.21 Bruce & McCoy, Criminal Evidence in Hong Kong I [105] to [252]

Issued September 2013 43.1

43. DEFENDANT‘S FLIGHT (after crime or on bail) 被告人（在罪行發生或獲保釋後）逃匿

The position where a defendant absconds is analogous to lies. See HKSAR v Mo Shiu-shing (1999) 1 HKC 43 at page 60.

It is alleged (admitted) that the defendant deliberately (ran away) (disappeared) after (the crime) (he had been bailed). You are entitled to consider whether this supports the case brought against him by the prosecution. You will need to consider:

(1) whether it has been established that the defendant did (run away) (disappear) after (the offence was committed) (he was bailed).

If you are sure he did, then next consider:

(2) Why did he (run away)? The mere fact that a defendant acts in this way is not in itself evidence of guilt. There are many innocent reasons why a person may do so. [Provide examples, if appropriate] (The defendant has said his reasons for ...... )

If you think his explanation is or may be true, then you should take no notice of the fact that he chose to (run away). It is only if you are sure that he did not (run away) for an ‗innocent‘ reason that his actions (in running away) can be regarded as evidence which supports the prosecution‘s case.

控方指稱／辯方承認被告人在（罪行發生）（獲得保釋）後蓄意（潛逃）（匿藏）。你們有權考慮上述事件是否支持控方所提出的指控。你們必須考慮以下問題：

( 1 ) 被告人是否已被證實是在（犯罪）（獲保釋）後（潛逃）（匿藏）。

如果你們肯定他曾這樣做，便可以繼續考慮：

( 2 ) 他為甚麼（潛逃）？被告人曾潛逃一事本身並不足以證明他有罪，一個人可能會基於許多與犯罪無關的理由潛逃 [ 如情況適合，可提供例子] （被告人已解釋他 ...... 的理由是……）

如果你們認為他的解釋是真實的或可能是真實的，便不應理會他曾（潛逃）一事。只有在你們能肯定他並非因‚與犯罪無關的‛理由而（潛逃）時，他的（潛逃）行動才可以被視為支持控方的指控的證據。

Note: In order for flight to be capable of providing support for the prosecution‘s case, there must be some evidence to establish a connection between the defendant‘s conduct (his flight) and the offence in question. See Mo Shiu-shing [1999] 1 HKC 43 at p.60.

Issued September 2013 44.1

44. DEFENDANT WHO HAS NOT GIVEN EVIDENCE 沒有作供的被告人

The defendant does not have to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing, one way or the other. It does nothing to establish his guilt. On the other hand, it means that there is no evidence from the defendant to undermine, contradict or explain the evidence put before you by the prosecution. [However, you still have to decide whether, on the prosecution‘s evidence, you are sure of the defendant‘s guilt.]

被告人不一定須要作供，他有權要求控方證明控罪，而自己則只是靜坐在犯人欄內。你們絕對不可以因為他沒有作供而假定他有罪。他沒有作供這一點並不證明任何東西，更不證明他有罪。但另一方面，這意味著被告人並沒提出任何證供來削弱、反駁或解釋控方所提出的證據。 [ 不過，你們仍須決定是否可根據控方所提出的證據肯定被告人有罪。]

Notes:

(1) In HKSAR v Li Defan [2002] 5 HKCFAR 320 the CFA approved the above direction in terms. See Lord Hoffmann NPJ (para.29 p.333) :

―… in most cases in which the accused does not give evidence it is undesirable that the judge should give the jury more than the Judicial Studies Board direction.‖

(2) Of the power of a judge to make stronger comment on the failure to give evidence Lord Hoffmann said (para.29) :

―… There is unquestionably power in an appropriate case to comment that the jury may ― but need not ― consider that the prosecution case on a particular issue relevant to guilt is strengthened by the absence of the accused from the witness box. But the cases in which such comment is permissible and, even if permissible, necessary, will be exceptional. Although it is impossible to generalize and every case must depend upon its own facts, the kind of case in which the judge may feel that the jury needs additional comment is that in which the criteria stated in R v Martinez-Tobon [1994] 1 WLR 388 are satisfied and, in addition, the defence is relying by way of answer upon some extra-judicial statement proved by the prosecution which the accused has not supported in evidence. …‖

(3) As an example of such circumstances Lord Hoffmann cited a passage from the judgment of Lord Lane LCJ in R v Duncan [1981] 73 Cr App Rep 359 at 365 in the context of the direction of weight to be given to the exculpatory parts of a ‗mixed‘ statement, noting that the comment should identify the issue to which the accused‘s election may be relevant :

Issued September 2013 44.2

―… Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence.‖

Also, he noted with approval that the Court of Appeal had held that the trial judge in HKSAR v Launder had been entitled to make adverse comments on the accused‘s failure to give evidence [see para.15, p.329B-H].

(4) The criteria identified by Lord Taylor LCJ in R v Martinez-Tobon [1994] 1 WLR 388 are :

―(3) Provided those essentials are complied with the judge may think it appropriate to make a stronger comment where the defence case involves alleged facts which (a) are at variance with the prosecution evidence or additional to it and exculpatory, and (b) must, if true, be within the knowledge of the defendant.

(4) The nature and strength of such comment must be a matter for the discretion of the judge and will depend upon the circumstances of the individual case. However, it must not be such as to contradict or nullify the essentials of the conventional direction.‖

5. Where the defence of diminished responsibility is raised and the defendant does not give evidence, see Archbold (2013) 19-92 and R v Bathurst [1968] 2 QB 99.

6. As for the case where the prosecution has commented on the defendant‘s failure to give evidence in breach of the prohibition on such comment of s.54(1)(b) of Cap.221, see Archbold Hong Kong (2013) 4-180; Bruce & McCoy, Criminal Evidence in Hong Kong I [1001]. Where such a comment is made, it is incumbent on the judge to correct the error in his summing up and to make plain the correct position. See also R v Naudeer [1984] 2 All ER 1036.

Note : In England and Wales the former prohibition on the making of comments by the prosecution on the failure of the defendant to give evidence has been abolished [Archbold (2013) 4-425].

7. Where counsel put forward material factual allegations to witnesses in cross examination, or in a closing address, for which there is no evidential foundation, the jury should be reminded in the course of the summing up that they are enjoined to consider their verdict ‗according to the evidence,‘ that mere suggestions by counsel in the course of questioning are not evidence and that the speeches of counsel do not constitute evidence, and [unless of course the suggestions have been accepted by a witness or by admission on the other side] that there has been no evidence to the effect suggested. For example, where the defendant has, through counsel, made serious allegations against prosecution witnesses, the suggested direction may be supplemented by the comment that counsel‘s allegations are unsupported by evidence. It should, however, remain a neutral direction.

Archbold Hong Kong (2013) 4-205 Bruce & McCoy, Criminal Evidence in Hong Kong III [202]

Issued September 2013 44A.1

44A. DEFENDANT WHO HAS GIVEN AND/OR CALLED EVIDENCE 已作供及／或已傳召他人作證的被告人

The defendant has chosen to give evidence [and to call witnesses]. The defendant was not obliged to give evidence. He was not obliged to call any witnesses. He does not have to prove his innocence. He does not have to prove anything.

However, he has chosen to give evidence [and to call witnesses on his behalf]. You must take what he [and his witnesses] has / have said into account when considering the issues of fact which you have to determine.

It is for you to decide whether you believe the evidence of the defendant [and /or his witnesses] or whether it may be true. I have previously told you that if the account given by the defendant / put forward by the defence is or may be true, then the defendant must [Note 1] be acquitted.

But even if you entirely reject the account given by the defendant / put forward by the defence, that would not relieve the prosecution of its burden of making you sure by evidence of the defendant‘s guilt [in respect of each charge which you have to consider]. [Note 2]

被告人已選擇作供 [ 及傳召證人 ] 。被告人沒有責任作供，亦沒有責任要傳召任何證人。他無須證明自己無罪，他無須證明任何東西／事情。

不過，他已選擇作供 [ 及傳召證人為他作證 ] 。在你們就有關的事實爭論點作出決定之前，你們必須把他 [ 和他的證人 ] 所說的話列入考慮。

你們必須決定是否相信被告人[ 及 / 或他的證人] 的證供，或該些證供是否可能真實。本席先前已告訴你們，如果被告人／辯方所提出的說法是或可能是真實的，你們便必須判他無罪。

不過，即使你們完全拒絕接納被告人 / 辯方所提出的說法，控方仍然有責任提出證據使你們肯定被告人犯了[ 你們所須考慮的每一項控罪 ] 。

Note:

1. This will require qualification where there is an objective element that may result in a conviction despite the truth or possible truth of the defence account; as, for example, where provocation is in issue.

2. R v Liberato (1985) 159 CLR 507 at 515, cited with approval by the CFA in Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 at paragraphs 28 and 29, page 612 I-613 G and in Jim Fai v HKSAR (2006) 9 HKCFAR 85 at paragraphs 16 and 17, page 93 C-I.

Issued September 2013 44A.2

3. See HKSAR v Wong Kwok Wang FACC No.6 of 2008, 14 May 2009, as to the advisability of directing the jury that the defendant does not have any obligation to attribute a motive to a prosecution witness for giving incriminating evidence against him when he was cross-examined as to why the witness did so.

Archbold Hong Kong (2013) 4-190B

Issued September 2013 45.1

45. DEFENDANT‘S RIGHT TO SILENCE 被告人的緘默權

Any person suspected of a criminal offence or charged with one is entitled to say nothing when asked questions about it. You must not hold his [silence][refusal to answer questions] against him. The exercise of the right to silence cannot amount to an admission of any kind nor can it be taken to reflect a guilty conscience.

任何涉嫌犯了刑事罪行或被控以刑事罪行的人都有權拒絕回答與該項罪行有關的問題。你們絕對不能因為他[ 保持緘默 ][拒絕回答問題] 而視之為對他不利的因素。行使緘默權並不等於承認任何東西／事情，也不表示他有罪疚感。

Note:

1. This direction should always be given where a defendant has exercised his right to silence.

2. As to the impropriety of making comments on the fact that a defendant was silent when charged or questioned, see HKSAR v Lee Fuk Hing (2004) 7 HKCFAR 600 and the CFA‘s consideration of the judgment of the High Court of Australia in R v Petty and Maiden (1991) 173 CLR; (1991) 55A Crim R 322

―35. We agree with the reasoning of the majority in Petty and Maiden. We recognize that it is a matter of ordinary experience that a failure to put forward an innocent explanation when given an opportunity to do so may support an inference that any later explanation is false but as to the nice distinction drawn in Littleboy and later Ryan there is doubt as to whether there is a real distinction between using silence to infer guilt and using it to attack the weight of an account given at trial but not earlier. Even if there is such a distinction, it is one which would be difficult for a jury to understand or apply. There is a right to silence. And in consequence of this right, suspected persons in Hong Kong should be – and routinely are – given a caution informing them in unqualified terms that they need not speak. In the whole of these circumstances, it is inappropriate in Hong Kong to use a person‘s silence against him in any way.

36. A person‘s right against self-incrimination (his right of silence) would otherwise become a possible source of entrapment. It is unfair for a person to have the right to remain silent, and usually to have been reminded of this right through the caution, and then for his silence to be put against him at trial. There are comments in some of the authorities to which we have referred which suggest that in some circumstances a trial judge may fairly inform the jury that an explanation has been made for the first time at trial provided that the judge also makes it clear that an accused has the right to remain silent and make no explanation in

Issued September 2013 45.2

answer to police questions. With respect such a direction is also objectionable. It gives rise to an adverse inference against the accused.‖

Note:

1. When referring to UK texts, please note that the ‗right to comment‘ provisions of the Criminal Justice and Public Order Act 1994 is not reflected in Hong Kong legislation.

2. As to the ambit of the right of silence, see HKSAR v Lam Sze Nga (2007) 9 HKCFAR 190.

Archbold Hong Kong (2013) 4-205 and 15-65 Bruce & McCoy, Criminal Evidence in Hong Kong V [154.1]

Issued September 2013 46.1

V DEFENCES 抗辯

46. ALIBI 不在犯罪現場

The defence is one of alibi. The defendant says that he was not at the scene of the crime when it was committed. As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi.

Even if you conclude that the alibi was false, that does not by itself entitle you to convict the defendant. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a genuine defence.

被告人的抗辯是他不在犯罪現場，他說罪案發生時他並不在案發現場。由於控方必須提出證據使你們肯定被告人有罪，所以被告人無須證明他當時身在其他地方。相反地，控方必須反駁他不在犯罪現場的說法。

即使你們斷定他不在犯罪現場的說法是虛假的，也不能基於這一點而判被告人有罪。你們可以把這一點列入考慮，但應謹記被告人有時會虛構不在犯罪現場的說話以支持一項真實的抗辯。

Notes:

1. As to false alibis in identification cases, see Direction 28.2 note 7.

2. Be sure to spell out, as in this direction, that the prosecution must disprove the alibi. Do this, even in a short summing up, in addition to the general direction on the burden of proof: see R v Anderson [1991] Crim LR 361, CA and R v Baillie [1995] 2 Cr App R 31. In R v Lesley [1996] 1 Cr App R 39 the Court of Appeal quashed a conviction when the standard JSB direction (above) had not been given. See also R v Harron [1996] 2 Cr App R 457 and R v Khan CA, unreported (95/3635/Y5).

3. In R v Askins CA, unreported (95/7300/Z5), a conviction was quashed as a result of a failure to give the warning in paragraph 2 of the direction.

4. Where an alibi is advanced it may also be necessary to give Direction 42.

5. See Criminal Procedure Ordinance (Cap 221) section 65D.

Archbold Hong Kong (2013) 4-153 et seq. and 14-26 Archbold (2013) 4-391 et seq. and 14-28 Blackstone (2013) D17.14 to 16 and F3.44 Bruce & McCoy, Criminal Evidence in Hong Kong X [1704] to [1801]

Issued September 2013 47.1

47. AUTOMATISM 無意識行為

This direction applies only to non-insane automatism. Insane automatism is governed by the McNaghten Rules (1843) 10 C1&F 200. In R v Burgess (1991) 93 Cr.App.R. 41 at 43 Lord Lane CJ said:

―Where the defence of automatism is raised by a defendant two questions fall to be decided by the judge before the defence can be left to the jury. The first is whether a proper evidential foundation for the defence of automatism has been laid. The second is whether the evidence shows the case to be one of insane automatism, that is to say a case which falls within the McNaghten Rules, or one of non-insane automatism.‖

If, because of [the concussion] [the anaesthesia] the defendant‘s state of mind was such that, at the time of the [act in question], his ability to exercise voluntary control was totally destroyed, he is not guilty of the offence. The defence has raised this issue for you to consider, but it is not for the defendant to prove that that was his condition; it is for the prosecution to make you sure that it was not.

如果被告人因為[ 腦震盪][受麻醉]，以至在 [ 有關的行為 ] 進行期間他的思想狀態是：他的自主控制的能力被徹底破壞，他的罪名便不成立。辯方提出這個爭論點供你們考慮，但被告人無須證明他的情況確實如此，而是由控方去證實並令你們肯定他的情況並非如此。

Notes:

1. Malfunctioning of the mind caused by a disease cannot found a defence of non-insane automatism. Temporary impairment of the mind, resulting from an external factor, may found the defence, e.g. concussion from a blow, therapeutic anaesthesia but not self-induced by consumption of alcohol/or drugs (see below and the commentary to Direction 14). R v Sullivan [1983] 2 All ER 673: 77 Cr App R 176; and Attorney General‘s Reference (No. 2 of 1992) where Lord Taylor said:

― We were referred to a number of decisions drawing a distinction between insane automatism and non-insane automatism: Reg v Quick [1973] Q.B. 910; Reg v Sullivan [1984] A.C. 156; Reg v Hennessy [1989] 1 W.L.R. 287 and Reg v Burgess [1991] 2 Q.B. 92. The effect of those decisions is that if the defence of automatism is said to arise from internal causes so as to bring the defendant within the McNaghten Rules (see McNaghten‘s Case (1843) 10 Cl. & F. 200), then if it succeeds the verdict should be one of not guilty by reason of insanity. An epileptic seizure, in Reg v Sullivan [1984] A.C. 156, a stress disorder, prone to recur and lacking the features of novelty or accident, in Reg v Hennessy [1989] 1 W.L.R. 287, and sleep-walking, in Reg v Burgess [1991] 2 Q.B. 92, were all regarded as internal causes. If, however, automatism is said to arise from an external cause, for example a stone hitting the driver on the head, then a successful defendant is entitled to be acquitted.‖

Issued September 2013 47.2

2. The evidential burden (i.e. the burden of adducing evidence fit for consideration by the jury) is on the defence and it is for the judge to decide whether to leave it to the jury. The judge may also have to decide whether the medical evidence supports a disease or an ―external factor‖. (If the former, the jury may require a direction as to the defence of insanity). As to the laying of an adequate evidential foundation see R v Mohammad Hussain [1993] 1 HKCLR 1.

3. See Attorney-General‘s Reference (No 2 of 1992) [1993] 97 Cr App R 429 where the Lord Chief Justice of England said, at page 434, ‗… the defence of automatism requires that there was a total destruction of voluntary control on the defendant‘s part. Impaired, reduced or partial control is not enough.‘ In this case the court decided that reduced or imperfect awareness, even though described by an expert as ‗driving without awareness‘, is incapable of founding a defence of automatism.

4. The prosecution must disprove automatism.

5. Malfunctioning of the mind which does not amount in law to insanity or automatism and does not cause total loss of control is not a defence. R v Isitt [1977] 67 Cr App R 44; Archbold (2013) 17–95.

6. Automatism due to self-induced intoxication by alcohol and/or dangerous drugs:

(i) is not a defence to offences of basic intent, since the conduct of the defendant in getting drunk was reckless and recklessness constituted the necessary mens reas;

(ii) may be raised where the offence is one of specific intent.

7. Automatism not due to alcohol, but caused by the defendant‘s action or inaction in relation to medicinal drugs (e.g. failure by a diabetic to eat properly after insulin) may be a defence to offences of basic intent unless the prosecution proves that the defendant‘s conduct was reckless. For example, in assault cases the prosecution must prove that the defendant realised that his failure was likely to make him aggressive, unpredictable or uncontrolled. R v Bailey [1983] 2 All ER 503; 77 Cr App R 76, at page 80: see Archbold (2013) 17-89.

Archbold Hong Kong (2013) 16-4; 16-66 to 67; 16-83; 20-7; 34-18 Archbold (2013) 17-5; 17-84 et seq. Blackstone (2013) A3.12 et seq. Bruce & McCoy, Criminal Evidence in Hong Kong III [52]

Issued September 2013 48.1 48. SELF DEFENCE 自衛

The following direction is intended to cover a number of likely situations and therefore it is NOT expected that it would be given in its entirety. The heart of the direction is printed in bold type, and where directions on self defence are required it will always be necessary to direct the jury that they should apply these principles (in whatever language is thought appropriate). The remainder of the directions are there merely as a guide, from which to pick and choose and adapt to the particular circumstances of the case.

Normally, where one person uses deliberate violence towards another and injures/kills him, he acts unlawfully. However, it is both good law and good sense that a person who is attacked or believes that he is about to be attacked may use such force as is reasonably necessary to defend himself. If that is the situation his use of force is not unlawful - he is acting in lawful self defence, and is entitled to be found ‗Not Guilty‘.

As it is the prosecution‘s duty to prove the case against the defendant, it is for the prosecution to make you sure that he was not acting in lawful self defence. The defendant does not have to prove that he was.

What does acting in lawful self defence mean? The law is that a person only acts in lawful self defence if in all the circumstances he honestly believes it is necessary for him to defend himself [or e.g. a member of his family] and the amount of force which he uses in doing so is reasonable. So there are two main questions for you to answer:

1. Did the defendant honestly believe or may he have honestly believed that it was necessary to defend himself?

(Where appropriate: A person who is in reality the aggressor or who injures another as an act of revenge or retaliation acts unlawfully, for it is not necessary for him to use force at all. [Also there are circumstances in which a man may be attacked or threatened with attack, but it is not necessary for him to fend off his attacker with force because he could, for example, very easily get away from him, or he is a much stronger person than his attacker and could quite easily deal with the situation without resorting to violence].

If the prosecution has made you sure that the defendant did not [e.g. strike X] in the honest belief that it was necessary to defend himself, then self defence simply does not arise in this case [and he is ‗Guilty‘]. But if you decide that he was or may have been acting in that belief, then you must go on to answer the second question:

2. Taking the circumstances as the defendant honestly believed them to be, was the amount of force which he used reasonable?

The law is that force used in self defence is unreasonable and unlawful if it is out of proportion to the nature of the attack, or if it is in excess of what is really required of the defendant to defend himself. (Where appropriate:) And so, for example, if the defendant began by defending himself, but then totally over-reacted, turning an act of self defence into a punitive attack, and caused [injury/death] in the course of that attack that would not be lawful.

Issued September 2013 48.2

It is for you, the jury, to decide whether the force used by this defendant was reasonable. Here consider all the circumstances. [These may include e.g.: What was the nature of the attack upon him? Was a weapon used by the attacker? If so, what kind of weapon was it, and how was it used? Was the attacker on his own, or was the defendant being attacked, or in fear of, a concerted attack by two or more persons?] In deciding this question use your common sense, experience, knowledge of human nature and, of course, your assessment of what actually happened at the time of this incident.

In deciding this, judge what the defendant did against the background of what he honestly believed the danger to be. [e.g. Accordingly, if he honestly believed that he was being attacked with a knife, his actions are to be judged in that light, even if you find as a fact that he was not being attacked with a knife.] You should also bear in mind that a person who is defending himself cannot be expected in the heat of the moment to weigh precisely the exact amount of defensive action which is necessary. The more serious the attack [or threatened attack] upon him the more difficult his situation will be. If, in your judgment the defendant believed or may have honestly believed that he had to defend himself [against …] and he did no more than what he honestly and instinctively thought was necessary to do so, that would be very strong evidence that the amount of force used by him was reasonable.

And so, bearing in mind what I have said, are you sure that the force used by the defendant was unreasonable? If it was unreasonable he cannot have been acting in lawful self defence [and he is ‗Guilty‘], but if the force used was or may have been reasonable, then he is ‗Not Guilty‘.

一般來說，如果某人蓄意使用暴力對付他人並使那人受傷 / 殺死那人，他的行為便是非法的。但是，如果某人受到襲擊或者相信自己即將受到襲擊，他可以用合理和必要的武力來保護自己，這是合法也是合理的做法。如果情況如此，他使用武力便不是非法 — 他的行為是合法自衛，應當判他‘無罪’。

控方的責任是要證實針對被告人的案情，所以是由控方去使你們肯定他的行為不是合法自衛。被告人無須證明他的行為是合法自衛。

合法自衛是甚麼意思呢？法律規定，如果某人在一切有關情況下真誠地相信他有必要保護自己 [ 或例如他的家人] ，而且他所使用的武力的程度是合理的，只有在這個情況下他的行為才是合法自衛。因此，你們必須要回答兩個主要問題：

1. 被告人當時是否真誠地相信，或者是否可能真誠地相信有必要保護自己？

（如適用：如果一個人實際上是撩事生非的攻擊者，或者為了報仇、報復而使到他人受傷，他的行為便是非法的，因為他根本無必要使用武力。 [ 另外有些情況是：當一個人可能受到襲擊或者有人威脅要襲擊他，但他無必要使用武力來抵禦襲擊者，因為例如，他可以輕易擺脫襲擊者，或者他比襲擊者強壯得多，不需使用暴力便可以輕易應付當時情況] 。

Issued September 2013 48.3

如果控方使你們肯定，被告人不是在真誠地相信有必要保護自己的情況下 [ 例如，擊打 X]，那麼本案根本沒有自衛這回事 [ 他就是 ‘ 有罪 ’ ] 。但如果你們裁定，他這樣做是因為或者可能因為他真誠地相信有這樣的必要，你們便必須跟着回答第 2 個問題：

2. 假定當時的情況正如被告人真誠地相信的情況一樣，他使用的武力，程度上是否合理？

法律規定，自衛時使用的武力，如果和襲擊的性質不相稱，或者超出被告人為了保護自己而真正需要的程度，就是不合理和不合法的。（如適用：）因此，舉個例子，如果被告人開始時是自衛，但其後完全反應過激，將自衛行為變成懲罰性的襲擊，並在襲擊的過程中引致某人 [ 受傷/ 死去]，這就是不合法的了。

本案被告人使用的武力是否合理，是由你們陪審團決定的。處理這個問題時，要考慮所有情況。[ 這可能包括，例如：他遭受的襲擊是甚麼性質？襲擊者有沒有用武器？如果有，是甚麼武器，又是怎樣使用這武器？襲擊者是否單獨行事，抑或被告人受到，或害怕受到，兩個或更多的人聯手襲擊？] 決定這個問題時，要運用你們的常識、經驗和對人性的認識；當然，你們也要評估事發時究竟發生了甚麼事。

你們決定這一點時，要在被告人真誠地相信有甚麼危險這個基礎上來判斷他的行為。 [ 例如：即使你們裁定事實上他不是正在被人用刀襲擊，但如果他真誠地相信他正在被人用刀襲擊，你們便應該在這個基礎上判斷他的行為。] 你們也應該謹記，任何人保護自己的時候，在當時急迫的情況下，不能期望他還可以準確地衡量自衛行動要做到哪個程度才是不多也不少的必要的自衛行動。他受到的襲擊 [ 或有人威脅要對他進行的襲擊 ] 越嚴重，他的處境便越急迫。如果你們裁定，被告人相信或可能真誠地相信他必須保護自己 [ 以抵禦……]，而他所做的不超過他真誠地和本能地認為他必需做的，這就是很有力的證據，可以顯示他使用的武力的程度是合理的。

因此，謹記本席剛才說的話，你們是不是肯定被告人使用的武力是不合理的？如果是不合理的，他就不是合法自衛 [ 他就是 ‘ 有罪 ’ ] ；但如果他使用的武力是或者可能是合理的，他就是 ‘ 無罪 ’ 。

Issued September 2013 48.4 Notes:

1. This direction may need further adapting depending upon the facts of the case and will need to be adapted if the case involves the defence of another person (as to which see e.g. R v Duffy 50 Cr App R 68; R v Chisam 47 Cr App R 130). As to defence of property see Archbold Hong Kong (2013) 20-45 et seq. and 204; Archbold (2013) 19-50.

2. Whether the plea is self defence or defence of another, if the defendant may have been honestly mistaken as to the facts, he must be judged according to his mistaken belief of the facts: that is so whether the mistake was, on an objective view a reasonable mistake or not: see R v Williams [1984] 78 Cr App R 276; R v Beckford [1987] 85 Cr App 378 and R v Oatridge [1991] 94 Cr App R 367. In the latter case the court emphasised that in cases where a defendant was not under actual or threatened attack, but honestly believed that he was, then the jury should be directed to consider whether the degree of force used by the defendant was commensurate with the degree of risk which he believed to be created by the attack under which he believed himself to be. See also R v Man Wai-keung [1992] 1 HKCLR 89.

3. Failure to retreat when attacked and when it is possible and safe to do so, is not conclusive. It is simply a factor to be taken into account in deciding whether it was necessary for the defendant to use force and whether the force used was reasonable. It is not necessary that the defendant should demonstrate by his actions that he does not want to fight: see R v Bird [1985] 81 Cr App R 110. Where necessary, an appropriate direction should be given.

4. As to whether a defendant is entitled to rely, in a defence of self-defence, upon a mistake of fact induced by voluntary intoxication see Archbold Hong Kong (2013) 16-13; Archbold (2013) 17-16; and Blackstone (2013) A3.39.

5. As to use of excessive force see R v Clegg [1995] 2 WLR 80, HL.

6. Whether or not the amount of force used was reasonable is a purely objective question: see DPP v Armstrong-Braun [1999] Crim LR 416, R v Martin (2002) 1 Cr App R 27 para 7.

7. For the availability of self-defence where the defendant sought or initiated the confrontation see R v Balogan [1999] All ER (D) 916; Burns v HM Advocate [1995] SLT 1090; R v Howard (2003) 20 CRNZ 319; and R v Rashford [2005] EWCA Crim 3377.

Archbold Hong Kong (2013) 20-45 et seq. Archbold (2013) 19-45 et seq. Blackstone (2013) A3.54 to 69

Issued September 2013 49.1

49. DURESS BY THREATS OR CIRCUMSTANCES 受到威脅或因所處環境而被逼迫 a) Both forms of the defence arise out of the exertion of force on D to commit the crime concerned― by human threats in the former (R v Hasan [2005] 2 Cr App R 22 (314); reported as R v Z in [2005] 2 AC 467), and by extraneous circumstances in the latter form (R v Martin (1989) 88 Cr App R 343). (There is a debate ― which we do not attempt to join ― as to whether ‗duress of circumstances‘ is a form of, or is to be equated with, necessity. See, e.g. the commentary to R v Quayle and Ors [2006] Crim L R at p151.) b) Although both forms of the defence share some characteristics, there are two limitations which apply only to duress by threats. Briefly, these arise when D : (i) failed to escape from the threats when he could and should have done so; and/or (ii) put himself in a position in which he was likely to be subjected to threats. c) In a case of duress by threats in which neither of these limitations is in issue, or in a case of duress of circumstances, only paras 1 to 5(a) of the following direction are relevant. In a case of duress by threats in which either or both of these limitations is in issue, the relevant paras are 1 to 4, 5(b), 6 and/or 7. d) This direction has been re-written in the light of R v Hasan (supra) and R v Safi and Ors. [2004] 1 Cr App R 14 (157). The direction does not seek to encompass recent case law rejecting a defence of necessity, e.g., in relation to drug offences ― R v Quayle and Ors [2005] 2 Cr App R 34 (527).

1. D says that he was acting under duress. He says that he was driven to do what he did by [threats, namely…][the circumstances in which he found himself, namely…]

2. Duress of this kind may be a defence to a criminal charge. Because it is for the prosecution to prove D‘s guilt, it is for them to prove that the defence of duress does not apply in this case. It is not for D to prove that it does apply.

3. First, you must ask whether D was driven (see Note 1) to act as he did because he genuinely and reasonably (see Note 2) believed that if he did not do so [he][a member of his immediate family] [a person for whose safety he would reasonably regard himself as responsible] (see Note 3) would be killed or seriously injured either immediately or almost immediately. If you are sure that this was not the case the defence of duress does not apply [and D is guilty].

4. However, if you think that this was or may have been the case you must next consider whether a reasonable person, in D‘s situation and believing what D did, would have been driven to do what D did. By ‗a reasonable person‘ I mean a sober person of reasonable firmness and of D‘s age and sex (here refer to any other relevant characteristics ― see Note 4). The reactions of a reasonable person may or may not be the same as those of D himself. If you are sure that a reasonable person would not have been driven to do what D did, the defence of duress does not arise [and D is guilty].

Issued September 2013 49.2

5. Either

a) However, if you think that a reasonable person would or might have been driven to do what D did, the defence of duress does apply, and you must find D not guilty.

b) However, if you think that a reasonable person would or might have been driven to do what D did, you will have to consider [one] [two] further question[s].

6. The [final] [next] question is this : did D fail to take an opportunity to escape from the threats without injury to [himself] [the person threatened] by (here refer to any escape route canvassed during the trial, e.g., going to the police), which a reasonable person in D‘s situation would have taken but which D did not take. If you are sure that he had such an opportunity, the defence of duress does not apply [and D is guilty]. However, if you are not sure of this [(if this is the only limitation relied upon by the prosecution) the defence of duress does apply and you must find D not guilty][(or, if the prosecution rely upon both limitations) there is a final question for you]

7. Did D voluntarily put himself in a position in which he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence (see Note 5)? The prosecution say that he did, by [joining a criminal group the members of which might make such threats][getting involved with crime and thus with other criminals who might make such threats if he let them down or came to owe them money]. But it is for you to decide. If you are sure that D did voluntarily put himself in such a position, the defence of duress does not apply [and D is guilty]. However, if you are not sure that he did so, the defence of duress does apply and you must find D not guilty.

1. 被告人說他是在被逼迫之下做出這些事情的。他說他是因為 [ 受到威脅，即…][他身處的環境，即 … ] 而被逼這樣做。

2. 這一種逼迫可以是對刑事控罪的辯護理由。由於控方必須要證明被告人有罪，所以他們必須要證明逼迫這個辯護理由在本案不適用。被告人無須證明這個辯護理由適用。

3. 首先，你們必須考慮：被告人做出這樣的行為是不是被逼的（請看註 1 ），被逼是因為他真誠地和合理地（請看註 2 ）相信如果他不這樣做， [ 他 ][他的直系親屬中某人 ][某個他會合理地認為他自己有責任保護使其安全的人]（請看註 3 ）便會立即或差不多立即被殺或嚴重受傷。如果你們肯定這不是實情，逼迫這個辯護理由便不適用[ 被告人便有罪] 。

Issued September 2013 49.3

4. 但是，如果你們認為這是或可能是實情，你們便必須跟着考慮，一個合理的人在被告人身處的境況裡，和相信被告人所相信的事情，會不會被逼做出被告人所做出的事情。‘合理的人’的意思是神志清醒、意志適度堅定、性別和年齡與被告人相若的人（此時說明任何其他相關特徵 — 請看註 4 ）。合理的人的反應可能和被告人的反應相同，也可能不同。如果你們肯定合理的人不會被逼做出被告人所做出的事情，逼迫這個辯護理由便不成立[ 被告人便有罪 ] 。

5. 接着下來的指引可以是 a)或 b)其中一個

a) 但是，如果你們認為合理的人會或可能會被逼做出被告人所做出的事情，逼迫這個辯護理由便適用，你們必須判被告人無罪。

b) 但是，如果你們認為合理的人會或可能會被逼做出被告人所做出的事情，你們便要再考慮以下 [ 一個][兩個] 問題。

6. [ 最後][接着] 的問題是：被告人是不是有機會在不會使 [ 自己 ][被威脅的人] 受傷害的情況下從這些威脅中脫身（此時說明在審訊時討論過的脫身途徑，例如去找警察），一個合理的人身處被告人當時的處境是會把握這個機會的，但被告人卻沒有這樣做。如果你們肯定他有這個機會，逼迫這個辯護理由便不適用[ 被告人便有罪 ] 。不過，如果你們對此不肯定， [(如果這是控方倚賴以上所述的限制中的唯一因素 ) 逼迫這個辯護理由便適用，你們必須判被告人無罪 ] [ （或者，如果控方兩個限制因素都倚賴）你們還要考慮最後一個問題] 。

7. 被告人是不是預見有危險？或者從合理角度來看他應該預見有危險？即有人會威脅以暴力對付他來脅迫他，但被告人自願把自己置於這個境況中（請看註 5 ）。控方說被告人正是這樣做，因為他 [ 加入一個犯罪團體，而這個團體的成員可能會作出這樣的威脅][牽涉入罪行中，因此和其他犯罪分子牽連。如果他不能如他們所願或者欠他們錢，那些犯罪分子便可能作出這種威脅]。這是由你們決定的。如果你們肯定被告人自願把自己置於這種境況中，逼迫這個辯護理由便不適用[ 被告人便有罪 ]。不過，如果你們不肯定他是自願置自己於這種境況中，逼迫這個辯護理由便適用，你們必須判被告人無罪。

Issued September 2013 49.4

Notes

1. The fact that D‘s will to resist had been affected by his voluntary consumption of drink and/or drugs is irrelevant.

2. See R v Hasan, para 23.

3. See R v Hasan, para 21(3).

4. See R v Bowen [1996] 2 Cr App R 157; also R v Rogers [1999] 9 Archbold News 1 and R v Moseley [1999] 7 Archbold News 2; R v Sewell [2004] EWCA Crim 2322.

5. See R v Hasan, paras 37 & 39, disapproving R v Baker [1999] 2 Cr App R 335. It is not necessary that D foresaw or ought reasonably to have foreseen that he might be the subject of compulsion to commit any particular type of criminal offence, or indeed any criminal offence at all.

6. For the circumstances in which it is permissible to withdraw the defence of duress from the jury, see R v Harmer [2002] Crim L R 401 and R v Bianco [2002] 1 Archbold News 2.

Archbold Hong Kong (2013) 16-87 et seq. Archbold (2013) 17-119 et seq. Blackstone (2013) A3.35 et seq. Smith & Hogan ―Criminal Law‖ 12th Ed. pp 325 - 345.

Issued September 2013 50.1

50. DIMINISHED RESPONSIBILITY (MURDER) 減責神志失常（謀殺）

It is impossible to devise a specimen direction suitable for all cases, but the following is an indication of the type of direction which could be given. It must, of course, be carefully adapted to meet the circumstances of the particular case. It is entirely for the judge to decide whether the court should direct the jury that if they convict of manslaughter they should return a verdict on a particular basis e.g. here: Guilty of manslaughter by reason of diminished responsibility. In R v Cawthorne (1996) 2 Cr App R (S) 445 at pages 450-451 the CA referred to the ‗grave dangers‘ of doing so in many cases (examples of which were given) and continued ‗In other cases, for example where provocation is raised and a defence of diminished responsibility is also put forward, the judge may regard it as essential to know the basis of the verdict.‘: See also R v Jones (1999) EWCA (Crim) 296 and introduction to Direction 51.

Providing that the prosecution has proved all the elements of the offence of murder, you must convict the defendant of that offence, unless you find that at the time of the offence he was suffering from an abnormality of mind which in law substantially impaired his mental responsibility for the killing. If he was, his responsibility is diminished and that will reduce the offence from one of murder to one of manslaughter.

The law is that it is for the defendant to prove that his responsibility is diminished. He does not have to make you sure of that, but he does have to satisfy you of it on the balance of probabilities, i.e. he must prove by evidence that it is more likely than not that when he killed X his mental responsibility for his actions was substantially impaired.

There are three elements which the defence must prove before this defence can be established. They must all be present:

1. At the time of the killing the defendant suffered from an abnormality of mind.

The word mind includes perception, understanding, judgment and will.

An abnormality of mind means a state of mind so different from that of an ordinary human being that a reasonable person (in other words yourselves) would judge it to be abnormal.

2. The abnormality of mind must arise from either:

A condition of arrested or retarded development of mind; or

Any inherent cause; or

It must be induced by disease or injury.

As to these first two elements, although the medical evidence which you have heard is important, you must consider not only the evidence of the doctors, but also the evidence relating to the killing and the circumstances in which it occurred. Consider the behaviour of the defendant both before and after that event and take into account his medical history.

Issued September 2013 50.2

3. The abnormality of mind must have substantially impaired the defendant‘s mental responsibility for what he did [i.e. his acts or omissions which caused death].

Substantially impaired means just that. You must conclude that his abnormality of mind was a real cause of the defendant‘s conduct. The defendant need not prove that his condition was the sole cause of it, but he must show that it was more than merely a trivial one [which did not make any real/appreciable difference to his ability to control himself].

You should approach all of these questions in a broad, common sense way. If the defence has failed to prove any one or more of these elements, providing that the prosecution has proven the ingredients of murder to which I have referred, your verdict must be Guilty of murder. If, on the other hand the defence has satisfied you that it is more likely than not that all three elements of the defence of diminished responsibility were present when the defendant killed X your verdict must be Not guilty of murder but guilty of manslaughter [on the grounds of diminished responsibility].

如果控方證明了謀殺罪的所有元素，你們便必須判被告人這項罪行罪名成立。但如果你們裁定在罪行發生時他神志失常，而失常的程度足以使他在法律上對殺人的意識責任大為減輕，則他的罪責亦會減輕，而罪行也會由謀殺減為誤殺。

法律規定，要由被告人來證明他神志失常因此罪責減輕。他無須使你們肯定這點，但他必須要在相對可能性的準則下使你們信納這點，即是他必須提出證據證明，當他殺 X 時，他為自己行為所須負上的意識責任大為減輕，這個可能性較大。

辯方必須證明 3 個元素，這個辯護理由才可以成立，這 3 個元素缺一不可：

1. 被告人殺人時神志失常。

神志一詞包括感知能力，理解力、判斷力和意志。

神志失常指一種和常人不同的思想狀態，不同的程度足以使到明白事理的人（換句話說，就是你們自己）會判斷這個狀態為反常的狀態。

2. 他的神志失常必須是下列其中一個原因引起的：

心智發育停頓或遲緩；或

任何與生俱來的因素；或

它必須是疾病或受傷引起的。

Issued September 2013 50.3

就第 1 和第 2 個元素而言，雖然你們聽到的醫學證據是重要的證據，但你們一定要考慮的，不但是醫生的證據，還要考慮關於殺人和案發時各種情況的證據。你們要考慮被告人事發前和事發後的行為和他的病歷。

3. 神志失常這個狀態必須大為減輕被告人為自己所作所為 [ 即他導致案中死者死亡的作為或不作為] 的意識責任。

大為減輕的意思就是字面的意思。你們的結論必須是：被告人神志失常是他的行為的真正原因。被告人無須證明這種狀態是他的行為的唯一原因，但他必須證明這種狀態並非只是輕微的因素[ 輕微指對他的自我控制能力沒有受到任何實際 / 察覺得到的影響] 。

你們處理所有這些問題時，應該從一個廣義的角度，以符合常識判斷的方式處理。如果辯方不能證明這些元素中的任何一個或多過一個，而控方能夠證明本席講述過的謀殺罪的元素，你們的裁決就必須是謀殺罪成立。但是，如果辯方使你們信納，被告人殺 X 時，較大的可能性是減責神志失常的 3 個元素全部齊全，你們的裁決就必須是謀殺罪不成立但 [ 因減責神志失常] 誤殺罪成立。

Notes:

1. Medical evidence should be carefully scrutinised in order to see how much of it depends upon hearsay or upon statements made to a doctor by the defendant himself, the truth of which are not admitted by the prosecution. Evidence by a doctor of statements made to him by the defendant about the defendant‘s acts and feelings is hearsay evidence and inadmissible to establish the truth of the contents of those statements. Where appropriate, the jury should be so directed. Where such hearsay statements are given and are not supported by direct evidence, see R v Bradshaw (1986) 82 Cr App R 79; and Archbold (2012) 19-77. See also Note to Direction 32: Expert Evidence.

2. It is for the court to determine whether there exists an evidential basis for the defence. See Direction 54 for the duty to leave defences raised by the evidence although not relied upon by the defence.

The defence is concerned with abnormal underlying causes peculiar to an individual and not with the reaction of a normal man to an abnormal situation and the defence should not be confused with that of provocation: HKSAR v Leung Wai-chung [1999] 2 HKC 471. See also Luc Thiet Thuan v R [1997] AC 131; and HKSAR v Kong Kwong San (1998) Cr App No 135 for the converse consideration, namely, that mental infirmity which might ground a defence of diminished responsibility will not normally be a ‗characteristic‘ for the purposes of a provocation direction.

3. It is best to omit references to ‗insanity‘ in a direction on diminished responsibility.

Issued September 2013 50.4

4. The defence is available where the defendant relies on abnormality of the mind brought about by long term drug abuse or alcoholism see R - v - Tandy 87 Cr App R 45; HKSAR v Liu Chuen Yip (2006) 4 HKLR 595. The defence is available where the defendant relies on abnormality of the mind brought about by long term drug abuse or alcoholism see R v Tandy 87 Cr App R 45; HKSAR v Liu Chuen Yip (2006) 4 HKLR 595. It is to be noted that in R v Wood [2008] 3 All ER 898 the Court of Appeal of England and Wales did not follow R v Tandy in the following respect: (see paragraph 41)

― The sharp effect of the distinction drawn in Tandy between cases where brain damage has occurred as a result of alcohol dependency syndrome and those where it has not, is no longer appropriate. Naturally, where brain damage has occurred the jury may be more likely to conclude that the defendant suffers from an abnormality of mind induced by disease or illness, but whether it has occurred or not, logically consistent with Dietschmann, the same question (i.e. whether it has been established that the defendant's syndrome is of such an extent and nature that it constitutes an abnormality of mind induced by disease or illness) arises for decision.‖

5. In R v Dietschmann (2003) 1 A.C. 1209, the House of Lords considered the question ―… what direction ought to be given to a jury as to the approach to be taken to self-induced intoxication which was present at the material time in conjunction with an abnormality of mind which falls within section 2(1) of the 1957 Act.‖ The House assumed that there was no evidence capable of establishing alcohol dependence syndrome as being an abnormality of mind within the section. Having reviewed the earlier authorities, Lord Hutton said that ―… without attempting to lay down a precise form of words, as the judge‘s directions were bound to depend to some extent on the facts of the case before him, the jury should be directed on the following lines:

‗Assuming that the defence have established that the defendant was suffering from mental abnormality as described in section 2, the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing?

You know that before he carried out the killing the defendant had had a lot to drink. Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of responsibility arising from that abnormality.

But you may take the view that both the defendant‘s abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink.

If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that?

If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him.‘‖

Issued September 2013 50.5

假設辯方已經證明被告人是如上述第 2 條描述那樣神志失常，有個重要的問題是：這樣的神志失常是不是大為減輕了他對殺人的行為的意識責任？

你們知道被告人殺人之前喝了很多酒，但喝酒不可以視為引致被告人神志失常的原因，也不可以視為引致被告人因神志失常而減輕了意識責任的原因。

你們可能會認為，被告人的神志失常和喝酒，兩者對減輕被告人殺人的意識責任都發生作用，而且，如果被告人沒有喝酒，也許就不會殺人。

如果你們有這個想法，你們便要回答這個問題：被告人能不能使你們信納，雖然他有喝酒，但他的神志失常狀態的確大為減輕了他對殺人行為的意識責任，抑或被告人不能使你們信納這一點？

如果被告人能夠使你們信納這一點，你們便要裁定他謀殺罪不成立，但你們可以判他誤殺罪成立。如果他不能使你們信納這一點，減責神志失常這個辯護理由對他便不適用。’

R v Wood has been applied in R v Stewart (James) (2009) 2 Cr App R 500.

Note: The Coroners and Justice Act 2009 amended s.2 of the Homicide Act 1957 with effect from 4 October 2010.

Archbold Hong Kong (2013) 20-78 et seq. Archbold (2013) 19-79 et seq. Blackstone (2013) B1.18 et seq.

Issued September 2013 51.1

51. PROVOCATION (MURDER)

1. There can only be an issue of provocation to be considered by the jury if the judge is of the opinion that there was some evidence of a specific act or words as provocation resulting in a loss of self-control. If there is such evidence, from whatever source it emerges and whether or not it was relied upon by the defendant at trial, the issue has to be left to the jury. If there is no such evidence but merely a speculative possibility, there is then no triable issue of provocation. See R v Acott [1997] 2 Cr App R 94; Zeng Liang Xin v HKSAR [1997] 1 HKLRD 1204; and generally, HKSAR v Lam Wai Sho CACC 283 of 2006, R v Coutts [2007] 1 Cr App R 4, R v Foster [2008] 2 All ER 597 and Ho Hoi Shing v HKSAR [2008] HKC 57.

2. It is always desirable that the question of provocation should be canvassed with counsel before closing speeches. Prosecution counsel and (though less clearly) defence counsel (see R v Cocks, 63 Cr App R 79 at 82 and R v Leung Chi Yuen (1989) 2 HKC 24) have a duty to direct the judge‘s attention, before he sums up, to any evidence on which it appears to them that the jury could find provocation: see also R v Cox 2 Cr App R 513 at 518 and R v Cody (2000) 3 HKLRD 573 at 584. Even if it has clearly been an issue in the case it is suggested that the issue nonetheless be canvassed so that counsel be given the opportunity to address the judge in respect of relevant ‗Camplin‘ characteristics: see DPP v Camplin and the commentary to R v Cox [1995] Crim LR 741. See also Archbold Hong Kong (2012) 4-207.

3. A direction upon provocation is pre-eminently one which must be custom-built to cater for the particular circumstances of the case.

4. Where there is more than one possible basis for a verdict of guilty of manslaughter it is desirable for a judge to invite the jury to indicate the basis upon which they return the verdict, the purpose of which exercise is to help the judge in relation to sentence. When summing up the judge might provide to the jury written questions which might identify the different possible verdicts not only as between murder and manslaughter, but also as to the reasons for the verdict of manslaughter, if such a verdict was to be returned. Alternatively, after a manslaughter verdict is returned the judge might ask the jury what was the basis of the verdict, but if he is to take this route, he must warn the jury in the course of the summing up of his intention to ask the question : see R v Jones (Douglas) (1999) EWCA (Crim) 296 and HKSAR v Lam Wai Shu and Another, CACC283/2006 at paras. 18-25. Perhaps a preferable course is to include the enquiry as the final question in the verdict ―pro forma‖: see Direction 55, question 7. The matter is within the judge‘s discretion. What the judge should never do is engage upon any discussion with the jury about the factual basis for their decision.

Issued September 2013 51.2

1. If you are sure that the defendant unlawfully killed X intending to kill X or to cause X really serious injury, the defendant is guilty of murder unless you conclude that this was or may have been a case of provocation (Subject to any question of diminished responsibility). Provocation is not a complete defence, leading to a verdict of ‗Not guilty‘. It is a partial defence, reducing what would otherwise be murder to the lesser offence of manslaughter. Because the prosecution must prove the defendant‘s guilt, it is for the prosecution to make you sure that this was not a case of provocation, and not for the defendant to establish that it was.

2. Provocation has a special legal meaning, and you must consider it in the following way.

3. First, you must ask yourselves whether the defendant was provoked in the legal sense at all. A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been [said and/or done] by [X and/or [an] other person/s [ADD, if appropriate] rather than just by his own bad temper. (Here, identify the things allegedly said and/or done to constitute the provocation – including where appropriate cumulative provocation * and, unless it is obvious, the evidence pointing to a loss of self-control.)

4. If you are sure that the defendant was not provoked in that sense, the defence of provocation does not arise, and [subject to the question of diminished responsibility which I will address later] the defendant is guilty of murder.

5. But, if you conclude that the defendant was or might have been provoked, in the sense which I have explained, you must ask yourself this question:

Was or may that conduct had been such as to cause an ordinary and sober person of the defendant‘s age and sex [and other special characteristics] to do as he did?

An ordinary person is simply a person who has the powers of self-control to be expected of an ordinary, sober person who is of the defendant‘s age and sex [and other special characteristics**].

[ADD, if appropriate: What is to be expected of an ordinary person? The law expects people to exercise control over their emotions. If, for example, a person has an unusually volatile, excitable or violent nature (or is intoxicated) he cannot rely on that as an excuse. So, the ordinary person in this context is a person who is not exceptionally excitable or given to violence, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.

ADD, if appropriate: If you think that the conduct would have been more provoking to a person who, like the defendant, was a [insert as appropriate: a drug addict / homosexual / illegitimate / sexually impotent / physically deformed] then you must ask yourself whether an ordinary person with that [characteristic/affliction/personal history] might have been provoked to do as he did.]**

Issued September 2013 51.3

6. Therefore, when considering this question you must take into account everything which was done and/or said according to the effect which, in your opinion, it would have on that ordinary person.

If your are sure that what was done and/or said would not have caused an ordinary, sober person of the defendants aged and sex [and other special characteristics] to do as he did, the prosecution will have disproved provocation. Then, providing the prosecution has made you sure of the ingredients of the offence of murder, your verdict will be ‗Guilty of murder‘. If, on the other hand, your answer is that what was done and/or said would or might have caused an ordinary, sober person of the defendant‘s age and sex [and other characteristics] to do as he did, your verdict will be ‗Not guilty of murder, but guilty of manslaughter by reason of provocation‘.

1. 如果你們肯定被告人非法殺死Ｘ，而且是意圖殺死 X，或意圖使 X 受到非常嚴重的傷害，被告人便是謀殺罪成立，除非你們斷定激怒這個辯護理由適用或可能適用（還要視乎有沒有任何有關減責神志失常的問題）。激怒不是一個會導致被告人獲判‘無罪’的完全的辯護理由，即是一個非完全的辯護理由，只會把原本的謀殺罪減為較輕的誤殺罪。由於控方必須證明被告人有罪，所以必須由控方使你們肯定本案裡激怒這個辯護理由不適用，被告人無須證明這個辯護理由適用。

2. 激怒一詞有特定的法律含義，你們必須循下列步驟考慮。

3. 首先，你們必須考慮，被告人有沒有符合法律定義的被激怒。如果某人因為 [X 及 / 或另外一個／幾個人 ][的言語及 / 或行動 ][如適用，加上 … ]，不是僅僅因為自己的壞脾氣，以致突然和短暫喪失自我控制能力，便屬被激怒。（此時指出構成激怒所指稱的言語及 / 或行動（如適用，包括累積性激怒 * ），也應說明顯示被告人喪失自我控制能力的證據，除非明顯得不需說明則例外。）

4. 如果你們肯定被告人不是符合上述定義的被激怒，那就不構成激怒這個辯護理由，而被告人謀殺罪成立 [ 但也要視乎是否存在減責神志失常的因素，這點本席稍後會談及] 。

5. 不過，如果你們斷定被告人有或可能有符合上述本席解釋的定義的被激怒，你們便必須回答這個問題：有關的行為是否會或可能會導致一個和被告人年紀相若、性別相同、 [ 具有和被告人相同的（其他… ）特徵] 、神志清醒的普通人做出被告人所做出的事情？

普通人就是一個具有和被告人年紀相若、性別相同、 [ 和被告人相同的（其他… ）特徵**]、神志清醒的普通人所應該具有的自我控制能力的人。

Issued September 2013 51.4

[ 如適用，加上：普通人應該具備甚麼質素？法律預期每個人都會控制自己的情緒。舉例來說，如果某人天性是異常地喜怒無常、易激動或凶殘（或者他是神志不清），他不能以此作為藉口。因此，這裡描述的普通人是一個並非特別易激動或特別有暴力傾向的人，而是具備了在現今社會裡，每人都有權期望在同一社會居住的市民會運用的自我控制能力。

如適用，加上：如果你們認為，有關的行為會較容易激怒和被告人一樣，都是 [ 加入適用的描述：有毒癮 / 有同性戀癖好／私生子／性無能／形體有破損 ] 的人，你們便必須問你們自己， [ 有這種特徵／受這種痛苦／有如此個人經歷 ] 的普通人會不會被激怒而做出被告人做出的事情。]**

6. 因此，當考慮這個問題時，你們必須根據你們認為有關的行為及／或言語會對一個普通人產生的影響，來考慮所有這些行為及／或言語。

如果你們肯定，這些行為及 / 或言語不會導致一個和被告人年紀相若、性別相同、[ 具有和被告人相同的（其他 … ）特徵] 、神志清醒的普通人做出被告人所做出的事情，控方便已證明激怒這個辯護理由不成立。那麼，只要控方已經使你們肯定謀殺罪的元素都齊備了，你們的裁決便是‘謀殺罪成立’。但是，如果你們的答案是：這些行為及 / 或言語會或者可能會導致一個和被告人年紀相若、性別相同 [ 具有和被告人相同的（其他 … ）特徵] 、神志清醒的普通人做出被告人所做出的事情，你們的裁決便是‘基於激怒這個理由，謀殺罪不成立，但誤殺罪成立’。

** See the judgment of Chan PJ in the CFA in Ho Hoi Shing v HKSAR [2008] HKC 57, including para 33 where he says:

―The second aspect of this defence (that is, was the provocation enough to make a reasonable man do as he did) was further explained by Lord Nicholls of Birkenhead when delivering the majority judgment (majority of 6 to 3) in Attorney General for Jersey v Holley [2005] 2 AC 580. In paragraph 6 of his judgment, Lord Nicholls, adopting the comments made by Lord Hobhouse of Woodborough in a dissenting judgment in R v Smith (Morgan) [2001] 1 AC 146 at p.185F, said that there are two elements in this aspect: first, the assessment of the gravity of the provocation; and second, the assessment of how a person with ordinary power of self-control would react to provocation of that gravity. The first element involves a consideration of everything both done and said as required by s.4 of the Ordinance, and the second element involves a consideration of the accused‘s conduct and whether a person with ordinary power of self-control would have reacted in a similar way. The accused‘s characteristics that a reasonable person, i.e. a person with ordinary

Issued September 2013 51.5

self-control may be taken to share, are not such characteristics as are inconsistent with reasonableness. The accused‘s characteristics that the person with ordinary self-control may be taken to share are those which a reasonable person may have, e.g. having some physical impediment or deformity or something in one‘s background that a person might be sensitive about, such as illegitimacy. If the provocation was directed to that sort of thing, the reasonable person may be taken to have had such characteristics.‖

Where the issue of revenge rather than sudden response arises:

Provocation only applies in the case of a sudden and temporary loss of self-control of such a kind as makes a person for the moment not the master of his mind. So a defendant who plans an attack in revenge for provocative conduct does not act under provocation as I have defined it, because in such circumstances he has not suffered a sudden temporary loss of self-control.

如果案中有這個爭論點，即被告人的所為是報復而非突然反應：

激怒只適用於以下這個情況，即突然和短暫喪失自我控制能力，以致暫時不能控制自己的思想。因此，如果被告人策劃一次襲擊作為對某些挑釁行為的報復，他就不是在本席所界定的被激怒狀態之下行事，因為在這樣的情況下，他不是突然短暫喪失自我控制能力。

* Where a ‗last straw‘ contention is raised [see Note 5]:

Although provocation which reduces murder to manslaughter applies only if the act of the defendant is committed suddenly upon a provoking event, that does not require you to ignore past behaviour by the deceased, since an incident which is trivial when examined in isolation might nonetheless be one which might cause a reasonable man to react explosively in the context of provocation over an extended period.

* 如果有‘最終使人無法忍受的事’這個爭論點[ 請看註 5]：

雖然，只有當被告人遇到挑釁事件而突然作出有關行為，才可以用激怒這個辯護理由將謀殺減輕至誤殺，但這不是要你們不理會死者以往的行為，因為儘管一宗事件單獨看來是微不足道的，但如果持續一段長時間被激怒也可能使到一個合理的人在這樣的情況下作出爆炸性的反應。

Notes:

1. The relevant conduct need not be that of the deceased: R v Davies [1975] 65 Cr App R 253. As to ‗self-induced‘ provocation see Archbold Hong Kong (2012) 20-68.

2. As to the causal chain connecting the alleged provocation, the loss of self-control and the act resulting in death see R v Ibrams and Gregory [1981] 74 Cr App R 154; R v Davies (above); R v Whitfield [1976] 63 Cr App R 39.

Issued September 2013 51.6

3. There may be a need in a particular case to refer to the defendant‘s personal history (or to an aspect of it) and/or the circumstances in which a defendant was placed at the relevant time, which history or circumstances the jury might think could have affected the gravity of the provocation upon an ordinary person of the defendant‘s age and sex. See DPP v Camplin (above). In R v Morhall [1996] 1 AC 90; [1995] 2 Cr App R 502, the House of Lords held that any unusual characteristics should be taken into account for the ‗reasonable person‘ test (under section 4 of the Ordinance) in so far as they affected the gravity of the provocation in question. It is particularly important that the judge, before final speeches are made, should discuss with counsel how he proposes to direct the jury so that counsel may be invited to comment on any further characteristics they consider should be included in the direction.

4. The Privy Council in Luc Thiet Thuan v R [1997] 1 AC 133 held that in a case where the defendant suffered from brain damage and was prone to respond to minor provocation by losing self-control and reacting violently, that the defendant‘s impaired mental condition could not be incorporated into the characteristics of a notional ―reasonable man‖ for the purposes of the test under section 4 of the Homicide Ordinance.

The judgment doubted the correctness of English Court of Appeal cases which suggested that all the characteristics of the defendant including the defendant‘s mental infirmities should be attributed to the notional ―reasonable man‖ (see R v Newell (1980) 71 Cr App R 331 which was subsequently approved in R v Campbell (1997) 1 Cr App R 199 and R v Morgan Smith (1999) 1 Cr App R 256). The Privy Council in A-G for Jersey v Holley (2005) 2 Cr App R 36 (485) and [2005] 2 AC 580, affirmed in Ho Hui Shing (applied in R v James & R v Karimi (2006) 1 Cr App R 29 (440) said the majority judgment in Morgan Smith was wrong and approved the approach in Luc Thiet Thuan and DPP v Camplin [1978] A.C. 705 and (1978) 67 Cr App R 14 (HL). See para 22 of Holley per Nicholls LJ which suggests the ―reasonable man‖ is an ordinary person of the age and sex of the defendant though without any other special characteristics. But see also the judgment of Lord Diplock in DPP v Camplin [1978] 67 Cr App R 14 at 21: ―… the reasonable man referred to … is a person having the power of self control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused‘s characteristics as (the jury) think would affect the gravity of the provocation to him.‖

So, as opposed to characteristics which affect the defendant‘s self-control, the ―reasonable man‖ can and should be notionally clothed with such characteristics of the defendant which have a bearing on the gravity of the provocation as perceived by him (see also R v Cox (1995) Crim LR 741).

The Court of Appeal in Hong Kong has followed Luc Thiet Thuan (supra) in HKSAR v Kong Kwong-san CACC 135/1998 and in that case leave to appeal on the point was refused by the Appeal Committee of the Court of Final Appeal (see also Kong Kwong-san v HKSAR (FAMC 4/1999) and reference to that in HKSAR v Mok Tsan Ping & Ors [2001] 2 HKLRD 325. See also HKSAR v Wong Hing Pui CACC 189/2001).

Issued September 2013 51.7

5. Provocation is not ruled out as a matter of law either because the provocative conduct has extended over a long period of time or because there has been a delayed or ‗slow burn‘ reaction. Thus, the jury can consider alleged provocative conduct giving rise to loss of control in the light of the deceased‘s conduct leading up to the killing. This may involve a period of minutes or a period of years: R v Ahluwalia 96 Cr App R 133, though see also R v Vu Van Thang (1991) 2 HKC 90. It is the loss of control which must be ‗sudden‘, which does not mean ‗immediate‘; see R v Thornton [1996] Cr App R 108. There may be evidence to go to the jury that the temporary loss of control continued through a series of deliberate acts: R v Baille [1995] 2 Cr App R 31. Note too the suggestion in Thornton, at page 116 that Battered Woman Syndrome might also affect a defendant‘s personality so as to constitute a significant characteristic.

6. The issue of provocation must be left to the jury (providing there is evidence of it which is fit for them to consider) regardless of whether the defendant actually claims that he was provoked and regardless of the wishes of defence counsel : see R v Coutts (2007) 1 Cr App R 4(60). Determining whether the evidence is such as to warrant a direction upon provocation is not always easy: see R v Cambridge [1994] 99 Cr App R 142 and R v Stewart [1996] 1 Cr App R 229; but a defence of provocation may never be withdrawn on the ground that no reasonable jury could possibly find that a reasonable man would have been provoked to do as the defendant did : see R v Gilbert 66 Cr App R 237.

Archbold Hong Kong (2013) 20-55 to 77

Note: The Coroners and Justice Act 2009 abolished the common law defence of provocation in England and Wales and repealed s.3 of the Homicide Act 1957 with effect from October 4, 2010.

Archbold (2013) 19-54 to 65 Blackstone (2013) B 1.33 to 47

Issued September 2013 52.1

52. INTOXICATION – SELF-INDUCED OR VOLUNTARY 神智不清— 自己導致的或自願的

Offences requiring a specific intent

Refer to the specific intent and continue:

You must not convict unless you are sure that the defendant, when he did the act, intended [X]. In deciding whether he intended [X] you must take into account the evidence that he was [drunk][affected by drugs]. If you think that, because he was so [drunk][affected by drugs], he did not intend or may not have intended [X], then you must acquit him. But if you are sure that, despite his [drunkenness] [the effect of the drugs], he intended [X] then this part of the case is proved against him. A [drunken] [drugged] intent is still an intent. [What is more it is not a defence for the defendant to say that he would not have behaved in this way had he not been [drunk/affected by drugs.]] (see Notes 2 & 3).

需要特定意圖的罪行

除非你們肯定被告人作出這行動時是有[X] 意圖的，否則就一定不可以裁定他有罪。要決定他是不是有 [X] 意圖，你們必須考慮關於被告人 [ 醉酒][受藥物影響 ] 的證據。如果你們認為，因為他 [ 醉酒][受藥物影響] 到如此程度，沒有或可能沒有 [X] 意圖，你們便必須裁定他無罪。但如果你們肯定，雖然他 [ 醉酒][受藥物影響] ，他是有[X] 意圖的，那麼，控方案情針對他的這個部分便得到證實了。 [ 醉酒][受藥物影響] 下的意圖仍然是意圖。[ 還有一點，被告人不可以辯稱，如果他不是[ 醉酒/ 受藥物影響]，他就不會這樣做，這種說法不是辯護理由。] （請看註 2 和註 3 ）。

Offences not requiring specific intent

Offences requiring ‗malice‘ (e.g. sections 19 and 22 Offences Against the Person Ordinance, Cap. 212 upon which the following direction is based) and offences of basic intent, e.g. criminal damage and rape.

You must be sure that the defendant, when he did the act, either:

1. Realised that it might cause some injury [not necessarily serious injury or wounding] to some person or

2. Would have realised that his act might cause such injury had he not been [drinking] [taking drugs].

It is not a defence for the defendant to say that he would not have behaved in this way had he not been [drunk] [affected by drugs] or that he failed to foresee the consequences of his act because he was [drunk] [affected by drugs].

Issued September 2013 52.2

不需要特定意圖的罪行

你們必須肯定，被告人作出這行動時是下列兩種情況的其中一種：

1. 他知道他的行動可能會使某人受到某程度的損傷[ 不必是嚴重損傷，或傷人] ，或

2. 如果他沒有[ 喝酒][食藥] ，他是會知道他的行動是可能會做成這種損傷的。

被告人不可以辯稱，如果他不是[ 醉酒][受藥物影響] ，他就不會這樣做，也不可以辯稱他沒有預見他這樣做的後果是因為他 [ 醉酒][受藥物影響] ，這兩種說法都不是辯護理由。

Notes:

1. For a brief summary of the law of the relevance of drink/drugs to crimes of specific and basic intent, when (a) voluntarily (b) involuntarily consumed, see Direction 14 above.

2. For guidance on what to do in a specific intent case when the defendant says that he had consumed a lot of alcohol but knew what he was doing, see R v Groark (1999) EWCA (Crim) 207; [1999] Crim LR 669.

3. In R v McKnight [2000] All ER (D) 764, it was said that this direction need not be given in every specific intent case in which alcohol played a part. It need only be given where the evidence, taken at its highest, justified the conclusion that the defendant might not have been able to form the necessary intention because of drink. See also R v Alden and Jones [2001] 5 Archbold News 3.

4. Self-induced intoxication by drink or drugs is no defence, except potentially to offences requiring a specific intent. Note R v Allen [1988] Crim LR 698, CA, where the defendant knew that he was drinking alcohol, the drinking of it did not become involuntary merely because he did not know or may not have known the precise nature or strength of the alcohol. See also DPP v Majewski [1977] A.C. 443 HL.

5. For self-induced intoxication and the defence of honest belief within section 64 of the Crimes Ordinance, Cap. 200, see Jaggard v Dickinson 72 Cr App R 33, Archbold Hong Kong (2013) 24-33; Archbold (2013) 23-48. For mistake of fact induced by voluntary intoxication see Archbold Hong Kong (2013) 16-13.

6. Concerning drugs see R v Bailey [1983] 77 Cr App R 76, R v Hardie [1985] 80 Cr App R 157, Archbold (2012) 17-89. Where the prosecution case is that the defendant was reckless: see Archbold Hong Kong (2013) 16-74; Archbold (2013) 17-105.

Issued September 2013 52.3

7. The onus of proof of intent in cases requiring specific intent still rests on the prosecution when the issue of intoxication arises: see Bruce & McCoy, Criminal Evidence in Hong Kong III [53]; R v Kimley [1994] Crim LR 944, and R v Ip Chong Fun [1996] 1 HKC 597 at pages 602, 603 (Caution - headnote (2) of the report of Ip Chong Fun appears to be inaccurate).

Archbold Hong Kong (2013) 16-72 et seq. Archbold (2013) 17-102 et seq. Blackstone (2013) A3.15 to 22

Issued September 2013 53.1

53. SEXUAL OFFENCES - CONSENT, ―DOMESTIC CIRCUMSTANCES‖

In the case of R v Mohammad Zafar 18th June 1993 (92/2762/W2) the English Court of Appeal remarked that the following passage from the summing-up of Pill J ‗… deserves to stand as a model for summing-up in a case of this nature‘. (Rape. Parties had been living together. Issue-consent; but the following directions could also be usefully adapted to cases of indecent assault etc.).

The Learned Judge commenced his summing-up with the words:

‗Members of the jury, the defendant and X had a long standing relationship, they lived together in Cardiff, they had two children and they had many acts of sexual intercourse.‘

Later, he went on to say:

‗It is a relevant fact (you may think) that they lived together (the defendant and Miss X) in a long standing relationship, relevant that is to the charge. When sexual intercourse occurs between a man and a woman your approach to the questions of consent which arise may well be different in a situation where the parties live together and have lived together for a long time from a situation where, for example, they have just met. The questions on the law of rape are the same in each case; but the answers will be given in the light of all the circumstances and all the evidence, including the fact that they have had a long standing relationship …‘

‗In law a husband or a long-term or a short-term partner for that matter … can be convicted of rape of his partner if the constituents of the offence are proved notwithstanding his relationship with the victim …‘

‗In considering whether it is proved that the complainant Miss X did not consent, bear in mind when considering the evidence the relationship between them. When people enter into long-term relationships either within or outside marriage they usually contemplate regular sexual relations. In most partnerships, even not entirely happy ones, there is often give and take between the partners on sexual as on other matters. A female partner may not particularly want sexual intercourse on a particular occasion but because it is her husband or her partner who is asking for it she will consent to sexual intercourse. The fact that such consent is given reluctantly or out of a sense of duty to her partner, is still a consent.‘

Issued September 2013 53.2

‗However, a woman is entitled to say ‗no‘ and to refuse to consent even to her husband or long-term partner. There is a dividing line between a real consent on the one hand and a lack of consent or mere submission on the other. It is for you to decide whether the absence of consent is proved in this case applying your combined good sense, experience and knowledge of human nature and modern behaviour to all the relevant facts of the case.‘

Issued September 2013 54.1

54. DEFENCE AVAILABLE BUT NOT RAISED

Where there is evidence from which a jury could reasonably infer that a defence might be available which has not been relied upon by the defendant or his counsel it must be put before the jury. Sometimes a defence may not have been put by inadvertence; sometimes it may not have been put for tactical reasons, for instance that it would be inconsistent with, or weaken the force of, some other defence specifically and primarily relied upon. But there is no duty to leave to the jury defences which have not been put and which are fanciful or speculative (as to which see in particular R v Coutts (2007) 1 Cr App R 6 (60) and see Note 6 to Direction 51, R v Acott [1997] 1 WLR 306 and Zeng Liang Xin [1997] HKLRD 1204). See also HKSAR v Ho Hoi Shing FACC 1 of 2008; HKSAR v Lau Chi-ming FAMC 31 of 2005 and R v Foster [2008] 2 All ER 597. See, generally, R v Critchley [1982] Crim LR 524 and R v Bonnick [1978] 66 Cr App R 266. Particular care should be taken to ensure that where appropriate, Self Defence (Direction 48), Duress (Direction 49) and Provocation - Murder (Direction 51) are left to the jury.

Note:

See R v Conway [1989] 88 Cr App R 159 CA and Coutts (supra), in which, on the facts, it was held in both cases that the judge was obliged to put a defence (duress and provocation respectively) to the jury, despite the defendant‘s counsel‘s submissions to the contrary. See also generally the comment by Winn LJ in R v Kachikwu 52 Cr App R 538 at 543. See also R v Watson (1992) Crim LR 434. For an example of a case where the evidence of a potential defence was so tenuous as to not require the defence to be left with the jury see R v Elliott (2000) Crim LR 51CA. See also: Von Starck v The Queen (2000) 1 WLR 1270 PC.

Archbold Hong Kong (2013) 4-191 Archbold (2013) 4-442 and 532; 19-62 Blackstone (2013) D.19-58 and 62 Bruce & McCoy, Criminal Evidence in Hong Kong III [5] to [50]

Issued September 2013 55.1

VI VERDICT / JURY MANAGEMENT 裁決／陪審團管理

55. CONCLUDING DIRECTIONS 結案指引

1. Each of you has taken an oath or affirmation to return a true verdict according to the evidence. This is a responsibility you must fulfil. Each of you takes into the jury box your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening and giving due consideration to the views of others. There must necessarily be discussion and debate, as a result of which an individual may be persuaded to accept a view which he or she did not previously hold. But, of course, you must at all times stay true to your oath or affirmation to give a true verdict according to the evidence. [See Note 1]

2. You should strive to reach a unanimous verdict, that is, a verdict upon which you are all agreed; whether guilty or not guilty. If however you are unable to do so, then I am entitled in law to accept from you a verdict upon which at least five of you are agreed, in other words, a verdict of six-one, or five-two. A verdict of four-three either way does not constitute a verdict, and should that position arise inform the court by a written note of the fact of that split, but not the numbers in favour of and against a particular verdict, and I shall direct you further. [See Note 2]

3. On your return to court, your foreman will be asked a series of questions in order to bring out your verdict(s) in a manner designed to avoid any mistakes or misunderstandings. The clerk will now hand to each of you for your assistance a sheet of paper upon which the questions have been typed, and it may help if before you return to court you note against those questions the answers which have been agreed between you and which will be given by the foreman on your behalf. Please bring the papers back to court with you and if any mistake arises when the answers are given orally by your foreman, you should immediately draw it to my attention. (See 55.5 for Questions to assist the return of a verdict/s.)

4. When you retire you will be taken by the jury usher to your deliberating room. If after your retirement you require assistance upon a matter of law, or wish to be reminded of some evidence, your foreman should write your question or request on paper and hand that paper to the usher. I shall need to recall counsel and discuss the issue raised with them in open court. You will then be called back to court for me to deal with the matter. So, there may be a little delay before you are brought back and your question or request is addressed.

5. The jury usher will at all times be outside you room. Please do not, on any account, discuss with her any aspect of the case or procedure nor ask her any questions unless it be to ask her to deliver an exhibit to you or to deliver a written question to me.

6. Refreshments and lunch will be brought to you, and it would be irregular for you to split up or go out for lunch or for any other purpose. Nor may you telephone from the jury room. Please leave mobile telephones with the jury usher and do not take them into the jury room with you.

Issued September 2013 55.2

7. When you retire, take with you the notes which you have been making as well as [the album of photographs/records of interview (and such other exhibits as the jury have before them and will obviously wish to take along)]. Other exhibits such as ... are available for you if you wish to see them, and if you do, please ask for their delivery to your room.*

1. 你們每一位都曾作出宗教式或非宗教式宣誓，表明會根據證據作出真實的裁決，這是你們必須履行的責任。你們每一位把個人經驗和智慧帶到陪審團席上，應當互相借鑒彼此的經驗和智慧。為收集思廣益之效，你們除了發表自己的意見外，亦應當聽取和適當地考慮他人的意見。你們必須進行討論和辯論，在經過這些討論和辯論後，有人可能會被說服而接納他或她之前所沒持有的看法。不過，你們在任何時間都當然必須履行你們的宗教式或非宗教式宣誓中的誓言，根據證據作出真實的裁決。

2. 你們應當力求達成一致裁決，即一個／項你們所有人都同意的裁決，不管是有罪或無罪的裁決。如果你們未能達成一致裁決的話，則本席有權依法接納一項至少經你們其中五人同意的裁決，即六對一或五對二的裁決。四對三的有罪或無罪的裁決都是無效的。如果出現這種情況的話，請以字條形式通知法庭出現四對三的局面，但不必說明同意或反對某項裁決的人數。本席屆時將會作出進一步指示。

3. 你們返回法庭後，書記便會向首席陪審員提出一連串問題，目的是使首席陪審員在宣告裁決時避免發生任何錯誤或誤會。為了協助各位，書記現在會向你們每一位派發一份印有上述問題的紙張，在返回法庭之前，你們應把經大家同意和會由首席陪審員代你們讀出的答案寫在相關的問題旁邊，這個做法可能會有用處。請你們在返回法庭時帶同上述紙張，如果首席陪審員在讀出答案時出現任何錯誤的話，你們便應立即通知本席。（關於有助於作出裁決的問題，請參閱 55.5 ）。

4. 你們退席後，會由傳達員帶到陪審團的商議室。如果你們在退席後有法律上的問題需要協助，或希望就某些證據獲得提示的話，便應由首席陪審員把你們的問題或要求寫在紙上並交給傳達員。由於本席須要召回雙方的大律師，與他們在公開法庭討論你們所提出的問題，然後才把你們召回法庭處理有關的事宜；因此，法庭可能須稍作延遲才能召你們回法庭處理你們的問題或要求。

5. 傳達員會一直留在你們的房間外，但請你們無論如何不要與她討論任何與案件或程序有關的事宜，也不要向她提出任何問題。不過，你們可以要求她為你們傳遞證物或遞交書面問題給本席。

Issued September 2013 55.3

6. 法庭會為你們提供茶點和午餐，你們不可以分開，也不可以為了吃午餐或其他目的而外出，因為這是不合常規的。此外，你們也不可以在陪審員室內打電話，請你們把電話交給傳達員，不要帶進陪審員室內。

7. 請你們在退席時帶同你們所作的筆記和[ 相片簿/ 會見紀錄（和其他已呈交給你們而你們又顯然想帶進陪審團室的證物）]。其他證物如……等，亦可隨時供你們查看。如果你們想要查看任何證物的話，可要求傳達員把有關的證物送到你們的房間。

* It is not appropriate for drug exhibits to be delivered to the jury room and the jury should so be informed. If they wish to examine them, then the court should reconvene for them to do so. If any exhibits have blood, the jury should be given plastic gloves and be advised to wear them when examining them.

‗4:3 Split‘

If the jury respond to the direction above by indicating that they are split 4:3 on a count or counts and if, in the circumstances of the particular case, it is appropriate, the jury might be invited to discuss the matter further :

― I am going to ask you to give further consideration to your verdict/s on count/s [..] and I repeat the direction I gave earlier. Each of you has taken an oath or affirmation to return a true verdict according to the evidence. This is a responsibility you must fulfil. Each of you takes into the jury box your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening and giving due consideration to the views of others. There must necessarily be discussion and debate, as a result of which an individual may be persuaded to accept a view which he or she did not previously hold. But of course you must at all times stay true to your oath or affirmation to give a true verdict according to the evidence. However, if after full discussion you cannot reach agreement, you must say so‖.

四對三的分歧

‚本席要求你們再考慮你們就第 [ ……] 項罪名所作的裁決，並重覆一項本席較早前所作出的指示：你們每一位都曾作出宗教式或非宗教式宣誓，表明會根據證據作出真實的裁決，這是你們必須履行的責任。你們每一位把個人經驗和智慧帶到陪審團席上，應當互相借鑒彼此的經驗和智慧。為收集思廣益之效，你們除了發表自己的意見外，亦應當聽取和適當地考慮他人的意見。你們必須進行討論和辯論，在經過這些討論和辯論後，有人可能會被說服而接納他或她之前所沒持有的看法。不過，你們在任何時間都當然必須履行你們的宗教式或非宗教式宣誓中的誓言，根據證據作出真實的裁決。不過，如果你們在經過全面討論後仍未能達成協議，則必須如實告訴法庭。”

Issued September 2013 55.4

Notes :

1. The direction at paragraph 1 above is taken from the judgment of Li CJ, with whom all the other judges agreed, in Tam King Hon v HKSAR (2006) 9 HKCFAR 206 at 216, para 29. . Of the desirability of giving such a direction Li CJ said (at page 217, para 30) :

― Whatever may be the position in relation to the giving of the specimen directions in full, judges may well consider that it would usually be of assistance to the jury to direct them as part of the summing up on how they should go about deliberating as a jury. It should be borne in mind that jurors are often serving for the first time and such directions may be helpful to them.‖

2. There has been a significant number of cases in which judges have told the jury, either expressly or by clear implication, that a four-three result is not acceptable. It is one thing to tell a jury that such a split cannot constitute a verdict, quite another to give the impression that a split is not open to them. Not only is that wrong in law but it is likely to create improper pressure. It is therefore vital that both in the original summing-up and in the event of a need to give a further relevant direction, it be made clear that they are not precluded ultimately from reaching a 4-3 position. Therefore, the relevant parts of these directions should not be omitted. See also Chan Kar Leung v HKSAR [2006] 9 HKCFAR 827, Pun Luen Pan v HKSAR [2008] 2 HKLRD 404 and Lam Chi Kwong v HKSAR FACC 2/2008.

3. The second direction has been drafted mindful of the observations made by Li CJ in the remaining part of paragraph 30 :

―… where such a direction has been given, if the jury subsequently asks questions on the same subject matter, that is, the jury‘s decision making process, it would be prudent for a judge to repeat or stay as close to the directions previously given where possible. If in response to such questions, a judge then uses different terms to convey the same meaning, depending on the circumstances, the risk of confusion or misunderstanding may arise.‖

Issued September 2013 55.5

Questions to assist the return of a verdict/s.

Suitable questions are set out below. There should be a separate sheet for each count and each defendant. Questions 4 to 6 inclusive will not be appropriate unless you have indicated to the jury that there is a possible alternative offence to consider.

1. On count…….. against………. have you reached a verdict?

If ―No‖ the judge will deal with the matter.

If ―Yes‖ then:

2. Is the verdict one upon which you are all agreed ?

If ―Yes‖ go to Question 3.

If ―No‖ then:

2A. By what majority have you arrived at that verdict?

Then:

3. What is your verdict?

[If ―not guilty‖ and there is a possible alternative verdict:

4. Have you reached a verdict on the possible alternative offence of……

If ―No‖, the judge will deal with the matter.

If ―Yes‖ then:

5. Is the verdict one upon which you are all agreed?

If ―Yes‖ go to Question 6.

If ―No‖ then:

5A. By what majority have you arrived at the verdict?

Then:

6. What is your verdict?]

7. [In a murder case when alternative bases for a manslaughter verdict have been left for the jury‘s consideration, add (as appropriate)] On what basis do you find the defendant guilty of manslaughter :

Issued September 2013 55.6

(1) manslaughter by an unlawful and dangerous act or (2) manslaughter by reason of provocation or (3) manslaughter by reason of diminished responsibility?]

Issued September 2013 55A.1

55A. WRITTEN MATERIAL FOR JURORS: DIRECTIONS; ‗STEPS TO VERDICT‘

The trial judge must decide whether to reduce his directions of law, or some of them, into writing and/or whether written ‗steps to verdict‘ are to be provided to the jury1. Before doing so, the judge ought to raise the matter with counsel, disclosing to them the proposed written draft, prior to closing speeches and the summing up. If, as will usually be the case, the written directions do not cover all of the directions of law the judge ought to direct the jury that is the case and that, in any event, the directions of law given orally are of equal weight to those given in writing. Finally, the judge must ensure that a copy of the written material provided to the jurors is preserved on the court file.2

1 For example, see the judgment of Lord Bingham in the House of Lords in R v Rahman [2009] 1 AC 129 at paragraphs 17-18 and 27. 2 See the judgment of the Court of Appeal of England and Wales delivered by Judge LCJ in Thomson & Ors v R [ 2010] 2 Cr. App. R. p.259 at p.267, paragraph 13.

Issued September 2013 56.1

56. VERDICTS ON ALTERNATIVE COUNTS

1. Alternative counts fall into two categories:

(i) genuine alternative charges -

theft with the alternative offence of handling is the obvious example. The accused cannot be guilty of both offences.

(ii) an alternative lesser charge-

the greater usually, but not always, includes the lesser. For example, unlawful wounding is an alternative to a charge of wounding with intent.

2. The approach to taking a verdict from the jury varies between (i) and (ii) above.

(i) Genuine alternative charges.

It is possible to have a guilty verdict to one of the alternatives only. The jury should be discharged from giving a verdict on the alternative count once a verdict of guilty on the other is entered.

The reason for proceeding in that way is to leave open to the Court of Appeal, in the event of a successful appeal in respect of the count on which a guilty verdict has been returned, the alternative of substituting a verdict of guilty in respect of the alternative count. That cannot be done if a verdict of ‗not guilty‘ has been entered in respect of that alternative count.*

There is a difficulty if the verdict is not guilty on the first charge and guilty on the second charge.

This difficulty is avoided by asking the jury at the appropriate stage whether they find the accused guilty on either.

For example:

Q. ―Do you find the accused guilty of either theft or handling?‖

A. ―Yes.‖

Q. ―On which count do you find him guilty?‖

A. ―Handling.‖

The handling charge is then put in full (i.e.: ―On count [the handling count] have you reached a verdict … etc.‖) and the verdict of guilty is taken. The jury is then discharged from bringing in a verdict on the first charge of theft.

[If the judge is sitting alone, the procedure is simpler but the judge must discharge himself from bringing in a verdict on the alternative count if he finds the accused guilty of one of them.]

Issued September 2013 56.2

(ii) Alternative lesser charges.

The jury should be asked for verdicts in the order of the gravity of the offences. So, on a count of wounding with intent a verdict should be sought on that count first. If the verdict is guilty the jury should be discharged from bringing in any verdict on the lesser alternative charge. Of course, if the verdict is ‗not guilty‘ of the count of wounding with intent then a verdict ought to be sought on the alternative count of unlawful wounding.

* See the statement of Mortimer J. A. in his judgment in the Court of Appeal in R v Tsui Fung (No.1) [1996] 2 HKC 77 at 86 H-87A:

― This court has frequently pointed out that when a verdict of guilty is recorded upon a count or charge and there is an alternative, the jury ought to be discharged from giving any verdict upon the alternative. Similarly, judges should excuse themselves from giving any verdict upon an alternative. The reason is that if the case goes on appeal and it is demonstrated that the applicant is not guilty of the count upon which he was convicted but is guilty of the alternative, an acquittal on the alternative prevents the Court of Appeal from substituting the proper verdict.‖

Archbold Hong Kong (2013) 4-255

Issued September 2013 58.1

58. OVERNIGHT RETIREMENT 在法院過夜

It is the essence of the jury system that you should reach a verdict when you are together in your jury room, with the jury usher outside to ensure your complete privacy. It follows that now that you will be separating to retire for the night you should not discuss the case amongst yourselves. No discussion about the case should resume until you all return to your jury room tomorrow.

In the morning you will be provided with breakfast, and we will resume in this court at 9:30 a.m., at which point I will ask you to return to the jury room to continue your deliberations.

陪審團制度的基本精神是你們應當一起在陪審團室內達成裁決，而傳達員則留守在陪審團室外，以確保你們完全不受干擾。因此，你們現在分開後，晚上應各自休息，不應再討論與案有關的事情。你們應當在明天全部回到陪審團室後才繼續討論本案。

明天早上，法院會為你們提供早餐，然後我們將於早上九時半回到法庭，屆時本席會請你們回到陪審團室繼續商議。

Of the time at which the jury ought to be invited to cease their deliberations see the observations of Bokhary PJ in Chan Kar Leung and others v HKSAR (2006) 9 HKCFAR 827 (at paragraph 15) :

―As to that, we endorse the broadly held view that jurors should generally cease deliberating by about 8 o‘clock at night and then rest overnight before resuming their deliberations together after breakfast the following morning. That is the view on which trial judges should act.‖

Issued September 2013 59.1

VII SPECIFIC OFFENCES 明確控告的罪行

59. ARSON 縱火

Arson with intent to endanger life [Count 1]

(section 60(2)(b) Crimes Ordinance)

Before you may convict a defendant on Count [1], you must be sure of all the following matters :

1) that on [date] [property] was destroyed [or damaged] by fire;

2) that the defendant committed the act which destroyed [or damaged] that property by fire;

3) that the defendant did so without lawful excuse;

4) that at the time that he committed the act the defendant intended

(a) to destroy [or damage] the property; and

(b) he intended that the destruction of [or damage to] the property would endanger [the life or lives of insert name or names][a human life or lives].

The direction in respect of the alternative count [Count 2] of arson being reckless as to whether life will be endangered is set out on the next page.

意圖危害生命而縱火 [ 第 1 項控罪]

你們必須肯定下列所有事情都是真確，才可以裁定被告人第[ 1 ] 項控罪成立：

1) 於 [ 日期] ， [ 財產] 被火摧毀[ 或損壞] ；

2) 用火摧毀[ 或損壞] 這些財產的行為是被告人所作出的；

3) 被告人是在無合法辯解的情況下作出上述行為；

4) 被告人作出上述行為的時候，意圖

a) 摧毀[ 或損壞] 這些財產；和

b) 意圖藉摧毀 [ 或損壞 ] 這些財產以危害 [(加上一人或多過一人的姓名) 的生命][他人或多過一人的生命 ] 。

Issued September 2013 59.2

If you are sure that the defendant is guilty on Count [1] (arson with intent to endanger life), you will be discharged from returning a verdict on Count [2] (arson being reckless as to whether life will be endangered).

If, however, you are not sure that the defendant is guilty on Count [1] you should find him not guilty of that count and then go on to consider the case on Count [2].

Before you may convict the defendant on Count [2], you would have to be sure of all of the following matters :

1) that on [date] [property] was destroyed [or was damaged] by fire;

2) that the defendant committed the act which destroyed [or damaged] that property by fire;

3) that the defendant did so without lawful excuse;

4) that at the time he committed the act the defendant intended to destroy [or damage] the property, or was reckless as to whether the property would be destroyed [or damaged]; and

5) that at the time he committed the act the defendant was reckless as to whether [a human life or lives] [the life or lives of (insert name or names)] would be endangered by the destruction of [or damage to] property by fire.

The prosecution will have proved that the defendant was reckless as to whether the property would be destroyed [or damaged] if, having regard to all the evidence, you are sure:

(1) that he was aware of a risk [identify the evidence relevant to the issue] that property would be destroyed [or damaged]; and

(2) that in the circumstances known to him it was unreasonable to take that risk[identify the evidence relevant to these issues].

The prosecution will have proved that the defendant was reckless as to whether [the life or lives of (insert name or names)] [a human life or lives] would be endangered if, having regard to all the evidence, you are sure:

(1) that he was aware of a risk that the destruction or damage to the property would endanger [the life or lives of (insert name or names)] [a human life or lives] [at an appropriate stage identify the evidence relevant to the issue]; and

(2) that in the circumstances known to him it was unreasonable to take that risk [at an appropriate stage identify the evidence relevant to these issues].

However, if due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions he was not reckless.

Issued September 2013 59.3

So if you find that the defendant did not appreciate or foresee or may not have appreciated or foreseen the risk that property would be destroyed or the risk that the destruction or damage to the property would endanger a life or lives, then he is not guilty.

如果你們肯定被告人第[ 1 ] 項控罪（意圖危害生命而縱火）成立，你們便無須就第[ 2 ] 項控罪（罔顧是否會危害生命而縱火）作出裁決。

但是，如果你們不肯定被告人第 [ 1 ] 項控罪成立，便應該裁定他這項控罪不成立，跟着考慮第[ 2 ] 項控罪的案情。

你們必須肯定下列所有事情都是真確，才可以裁定被告人第[ 2 ] 項控罪成立：

1) 於 [ 日期] ， [ 財產] 被火摧毀[ 或損壞] ；

2) 用火摧毀[ 或損壞] 這些財產的行為是被告人所作出的；

3) 被告人是在無合法辯解的情況下作出上述行為；

4) 被告人作出上述行為的時候，意圖摧毀[ 或損壞] 這些財產，或罔顧這些財產是否會被摧毀[ 或損壞 ] ；及 5) 被告人作出上述行為的時候，罔顧 [ 他人或多過一人的生命 ][（加上一人或多過一人的姓名）的生命 ] 是否會因這些財產被火摧毀[ 或損壞] 而受到危害。

你們考慮過所有證據後，如果肯定下列事情都是真確，控方便證實了被告人‚罔顧這些財產是否會被摧毀[ 或損壞] ＂：

( 1 ) 他知道存在一項風險，即是財產會被摧毀 [ 或損壞][指出和這個爭論點有關的證據] ；及

( 2 ) 在他所知的情況下去冒這個險是沒有道理的 [ 指出和這些爭論點有關的證據] 。

你們考慮過所有證據後，如果肯定下列事情都是真確，控方便證實了被告人‚罔顧[（加上一人或多過一人的姓名）的生命 ][另一人或多過一人的生命] 是否會受到危害＂：

( 1 ) 他知道存在一項風險，即是摧毀或損壞這些財產會危害 [ （加上一人或多過一人的姓名）的生命 ][他人或多過一人的生命 ][適當時指出和這個爭論點有關的證據 ] ；以及

( 2 ) 在他所知的情況下去冒這個險是沒有道理的 [ 適當時指出和這些爭論點有關的證據] 。

Issued September 2013 59.4

但是，如果被告人由於他的年紀或個人特徵而真的不了解或不預見他的行為會引致的風險，他就不是罔顧危險。

因此，如果你們裁定被告人不了解或不預見，或者可能不了解或不預見這個危險，即是這些財產會被摧毀，或者一人或多過一人的生命會因這些財產被摧毀或損壞而受到危害，他便罪名不成立。

These directions have been re-drafted in light of the decision of the Court of Final Appeal in Sin Kam Wah v HKSAR [2005] 2 HKLRD 375 approving the decision of the House of Lords in respect of the word ―reckless‖ in R v G [2004] 1 AC 1034 and overruling R v Chau Ming Cheong [1983] HKC 68 and R v Dung Shue Wah [1983] 2 HKC 30.

― Henceforth juries should be directed in terms of the subjective interpretation of recklessness upheld in R v G [2004] 1 AC 1034. So juries should be instructed that, in order to convict for an offence under s.118(3)(a) of the Crimes Ordinance, it has to be shown that the defendant's state of mind was culpable in that he acted recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk. Conversely, a defendant could not be regarded as culpable so as to be convicted of the offence if, due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions.‖ Sir Anthony Mason, NPJ page 391 C-E, paragraph 44.

(See also, HKSAR v Tang Yuk Wah CACC 132/2005-14 September 2005)

Note :

Where the prosecution rely on the alternatives of intention or recklessness as to whether life is endangered it must be reflected in a separate count : see R v Hoof 72 Cr App R 126 and R v Hardie 80 Cr App R 157.

Archbold Hong Kong (2013) 16-45; 24-6 et seq. Archbold (2013) 23-8 et seq.

Issued September 2013 60.1

60. BLACKMAIL 勒索

(Section 23 Theft Ordinance)

A person commits blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes an unwarranted demand with menaces.

Before you may convict the defendant, you would have to be sure of all of the following matters :

1) that he made a demand of [Mr X];

2) that when the demand was made, it was made with menaces;

3) that it was an unwarranted demand; and

4) that he made the demand with a view to gain for himself or another.

I do not need to define for you the word ‗demand‘. You are to give it its ordinary meaning. It is to be distinguished from a mere request. It can be constituted by speech or by conduct or by a combination of both. It can be explicit or implicit. It arises where the words used or the demeanour of the defendant and the surrounding circumstances are such that an ordinary reasonable man would understand that a demand was being made of him.

‗Menace‘ is also an ordinary English word which needs no definition. If someone demands that you pay him money and states or clearly implies by words or action that if you do not, he will assault you or cause harm to your family or your property, he is reinforcing his demand, is he not, with menaces.

As for the requirement that the prosecution must prove that the demand with menaces was unwarranted, some threats, unpleasant to the person to whom the threat is addressed might nonetheless be warranted. For example, it is not blackmail for a creditor to threaten court proceedings in respect of a debt which is due. That is a warranted demand; not an unwarranted demand. So the law provides that if a person making the demand believes that he has reasonable grounds for making it, and he believes that the use of menaces is a proper means of reinforcing the demand then he is not guilty of the offence of blackmail. It would be for the prosecution to make you sure that he had no such belief.

任何人為了使自己或另一人獲益，或意圖使另一人遭受損失，而以恫嚇的方式作出任何不當的要求，即屬犯勒索罪。

你們必須肯定下列所有事情都是真確，才可以裁定被告人罪名成立。

1) 被告人曾向 [X 先生] 作出要求；

2) 他作出這個要求時，是以恫嚇的方式作出的；

Issued September 2013 60.2

3) 這是不當的要求；及

4) 他作出這個要求是為了使自己或另一人獲益［或意圖使另一人遭受損失］。

本席無需告訴你們‘要求’這個詞的定義是甚麼。你們是要以這個詞通常的含義來理解它。要求和單純的請求是不同的。要求可以由言語或行為，或由兩者混合而構成。它可以是明示的，也可以是暗示的。如果被告人使用的言詞或神情舉止和周圍的情況會使到一個明白事理的普通人了解被告人正向他作出要求，那就是作出要求了。

‘恫嚇’也是一個普通的詞語，無需多講它的定義。如果某人要求你付錢給他，並且聲明或者以言詞或動作清楚表示如果你不照做，他便會襲擊你或者傷害你的家人或毀壞你的財物，他便正是以恫嚇的方式加強他的要求。

法律規定，控方必須證明這個以恫嚇的方式作出的要求是不當的要求。但有時對某人施加某些威脅，雖然這些威脅使到受威脅的人不好受，卻可能是正當的。舉個例子，債權人就一筆到期須要償還的債項威脅說會提出訴訟，這可不是勒索。這是正當要求，不是不當要求。因此法律規定，如果作出要求的人相信他有合理的理由作出這個要求，並且相信使用恫嚇是加強這個要求的正當方法，他就不是犯勒索罪。控方須要使你們肯定他沒有這些想法。

Note:

See the comments of the Court of Appeal in HKSAR v Chen Wei Li CACC402/2004 to the effect that victims of blackmail cases should be identified, not by their names, but alphabetically unless they consent to their names being used.

Archbold Hong Kong (2013) 22-204 et seq. Archbold (2013) 21-256 to 269 Blackstone (2013) B5.42 et seq.

Issued September 2013 61.1

61. DANGEROUS DRUGS 危險藥物

Trafficking in a dangerous drug : see section 4(1)(a) of the Dangerous Drugs Ordinance.

―Trafficking‖

The defendant is charged with unlawful trafficking in a dangerous drug, namely [the drug]. Trafficking in a drug means supplying it to others, or selling it, or exporting it [etc.] or possessing it for such a purpose.

‚販運‛

被告人被控非法販運危險藥物，即 [ 本案有關的藥物 ] 。販運藥物是指供應該藥物給他人，或售賣，或出口該藥物 [ 等等] ，或管有該藥物作販運用途。

―Unlawful‖

Unless a person is authorised by law to traffic in a dangerous drug it is a crime to do so. Some people such as doctors and chemists are authorised by law to supply drugs to people, and although therefore they traffic in those drugs it is not unlawful for them to do so. The Dangerous Drugs Ordinance provides that [specify drug] is a dangerous drug. It is not suggested in this case that this defendant was authorised either to possess or traffic in that dangerous drug.

‚ 非法‛

除非在法律上獲授權販運危險藥物，否則任何人販運危險藥物便是犯了刑事罪。某些人，例如醫生和化驗師，是在法律上獲授權可以供應藥物給其他人，所以雖然他們販運這些藥物，但他們這樣做不是非法的。《危險藥物條例》規定 [ 指出哪一種藥物] 是危險藥物。本案裡，控辯雙方都不是說這個被告人是獲授權可以管有或販運這種危險藥物。

The following direction assumes the prosecution allege the defendant possessed dangerous drugs for the purpose of trafficking. It will need to be amended if the allegation is of actual trafficking (e.g. sale to another).

In this case the prosecution allege the defendant possessed dangerous drugs for the purpose of trafficking in them. You may not convict the defendant unless you are sure the prosecution have proven [at the place and on the date alleged] that :

Issued September 2013 61.2

1. the defendant possessed dangerous drugs;

2. he knew they were dangerous drugs; and

3. he possessed them for the purpose of [supply to another/ xport/sale].

The prosecution must prove each of those matters so that you are sure.

本案裡控方指稱被告人管有危險藥物作販運用途。你們必須肯定控方已證實[ 在控方指稱的地點和日期 ] 被告人做出下列事情，才可以判被告人罪名成立，這些事情是：

1. 被告人管有這些危險藥物；

2. 他知道這些物件是危險藥物；及

3. 他管有這些危險藥物是為了[ 供應給別人／出口／售賣] 。

控方必須把這些事情每一項都證明到使你們肯定是真確的。

―Possession‖

A person is in possession of an object if it is in his actual physical custody, e.g. in his hand or in his pocket, or is otherwise within his control e.g. kept in his desk or in his bedroom, and he knows it is there and has the intention to exercise custody or control over it.

‚管有‛

如果某人實際上隨身保管着某物件，例如這物件是在他手裡或在他的衣袋裡，或他以其他方式把這物件置於他的控制之中，例如他把這物件放在他的書桌裡或他的睡房裡，而他知道這物件是在那裡，並且意圖保管或控制這物件，那麼，此人便是管有這物件。

The following specific points, or some of them may require mention and expansion :

Please note that you should not equate ownership with possession. In other words, one may possess an object even though one does not own it.

An object may be possessed by more than one person at the same time. If two or more people agree to keep a pool of articles or a particular product in one place and that any of them may go there to take or move some of the articles as and when they see fit, then all are in control of the product in the sense that I have described ‗control‘, and all are in possession of it.

Issued September 2013 61.3

But a person‘s mere presence in the vicinity of an object is not of itself possession of it. If a person is invited for dinner to a friend‘s home, he is not in possession of the objects in that home simply because he is there and knows that the objects are there. The objects are not in his physical custody and he has neither the intention nor the authority to exercise control over them.

請注意，你們不可以把管有等同於擁有。換言之，即使某人不是擁有某物件，他也可以管有這物件。

一件物件可以同時被多過一人管有。如果兩個人或多過兩個人同意把一批物品或某一物品存放在某個地方，而他們其中任何人都可以在他們認為是合適的時候和情況下到那個地方拿走或移去部分物品，那麼，按照本席對‘控制’一詞所作的解釋，他們全部都是控制着這物品，也是全部都管有這物品。

不過，如果某人僅僅身處在某物件的附近，單憑這點不構成管有這物件。如果某人應邀前往朋友家中共進晚餐，他不會僅僅因為身在朋友家中和知道朋友家中有哪些物件，而被視為管有朋友家中的物件，因為他不是隨身保管着這些物件，也沒有意圖，亦沒有權力控制這些物件。

‗Shut eye‘, or constructive, knowledge :

Where there is an issue about knowledge of the contents of a container, the jury must be told that suspicion does not suffice and that knowledge must be proved. In such cases, judges must be very careful not to suggest that, by itself, failure to take an opportunity to inspect is to be, or may be, equated with knowledge of the contents. In appropriate cases, it is a fact that may be taken into account and from which, with all the other circumstances, guilty knowledge may be inferred. In essence, guilty knowledge may be inferred where the custodian has evidently ‗avoided getting confirmation which he neither wanted nor indeed needed‘ and where ‗in common sense and in truth, he knew.‘ (See Law Wai Choi (1996) Criminal Appeal No. 279). Directions about means and opportunity to inspect are not to be imported into all drugs cases, but only where the issue so warrants (see R v Cheung Kwok Kuen CACC 51/1996). See also Law Wai-choi, FAMC 24/1998.

The Alternative Verdict : Simple Possession (A suggested direction for cases where the alternative arises. The alternative is often not applicable — e.g. where there is a large quantity in weight and value. Unless the alternative obviously applies, the issue is one which the judge should discuss with counsel before closing speeches.)

If you are sure that the defendant was in possession of a dangerous drug, but you are not sure that he had possession of it for the purpose of trafficking, you will find the defendant not guilty of trafficking in dangerous drugs, but guilty of the lesser charge of possession of dangerous drugs.

The law allows you to convict of this lesser offence if :

Issued September 2013 61.4

1. you acquit of the more serious offence; that is if you find him not guilty of trafficking, but

2. you are nevertheless sure that he was in possession of the dangerous drug.

3. and that he knew it was a dangerous drug

如果你們肯定被告人管有危險藥物，但不肯定他是否管有這些危險藥物作販運用途，你們便應裁定被告人販運危險藥物罪不成立，但罪責較輕的控罪，即管有危險藥物罪成立。

在下列情況下，在法律上你們可以就這項較輕的控罪判被告人罪名成立：

1. 就較嚴重的罪行你們裁定被告人罪名不成立，即是說，如果你們裁定他販運危險藥物罪不成立，但

2. 你們肯定他管有這些危險藥物，

3. 而且他知道這些物件是危險藥物。

Note : The presumptions contained in section 47(1) and (2) of the Dangerous Drugs Ordinance now place only an evidential burden on the defendant rather than a persuasive burden : see HKSAR v Hung Chan Wa and Another (2006) 9 HKCFAR 614 at 648. There is no need for judges to trouble the jury with this issue.

Manufacture of a dangerous drug : see section 6(1)(a) of the Dangerous Drugs Ordinance.

―Manufacture‖

Manufacturing a dangerous drug means any act connected with making, adulterating, purifying, mixing, separating or otherwise treating a dangerous drug.

‚製造‛

製造危險藥物是指製作、摻雜、提純、混合、分離或以其他方法處理危險藥物的相關行為。

The following direction will often suffice :

In this case, you may not convict the defendant of manufacturing a dangerous drug unless you are sure [that on or about (date) at (place)] :

Issued September 2013 61.5

1. he manufactured a substance;

2. the substance was a dangerous drug;

3. he knew the substance was a dangerous drug; and

4. he was not licensed, or authorised by law, to manufacture the dangerous drug.

本案裡，你們必須肯定 [ 於或約於（日期）在（地點） ] ，被告人做出下列事情，才可以判被告人製造危險藥物罪成立，這些事情是：

1. 被告人製造了某物質；

2. 該物質是危險藥物；

3. 被告人知道該物質是危險藥物；以及

4. 被告人在法律上沒有得到許可也沒有獲得授權而製造該危險藥物。

Issued September 2013 62.1

62. KIDNAPPING 綁架 (Forcible Detention with intent to Procure a Ransom) （強行禁錮意圖取得贖金）

(section 42, Offences Against the Person Ordinance, Cap 212).

Before you may convict the defendant of this offence, you would have first to be sure of each of the following :

1. that the defendant detained Mr X. To detain a person is actively to prevent that person from leaving a place.

2. that the detention was effected by force; in other words, by violence or by threats of violence;

3. that such detention was against Mr X‘s will;

4. that the defendant knew that the detention was against Mr X‘s will; and

5. that the defendant intended at the time of the forcible detention to procure a ransom for Mr X‘s release. A ransom is the sum of money, or the price, for someone‘s release.

[It does not matter from whom or through what route it was intended to procure the ransom. Nor does the prosecution have to prove that the defendant intended to release Mr X once the ransom was secured, and it matters not whether the money was owing to the defendant or not. It suffices also if the demand is made to the victim himself, to obtain the money howsoever he may, rather than directly to a member of his family.]

你們必須先肯定下列事情每項都是真確，才可以裁定被告人這項控罪成立。

1. 被告人禁錮 X 先生。禁錮某人的意思是積極阻止那人離開某個地方；

2. 這禁錮是以武力進行的；換言之，是使用暴力或威脅要使用暴力；

3. 這禁錮是違反 X 先生的意願的；

4. 被告人知道這禁錮是違反 X 先生的意願的；及

5. 被告人進行武力禁錮時意圖取得為求釋放 X 先生而交出的贖金。贖金是為求釋放某人而交出的金錢或代價。

Issued September 2013 62.2

[ 被告人意圖從何人或者透過甚麼途徑取得贖金都不重要。控方無須證明被告人意圖一旦贖金到手便會釋放 X 先生。那筆錢是不是欠被告人的欠款亦不重要。就算交出贖金的要求不是直接向受害人的家人提出，而是向受害人本人提出，要他無論用甚麼方法也要籌得這些錢，這已足夠構成這罪行。]

(The common law offence of kidnap.)

In R v D [1984] AC 778 the House of Lords identified the ingredients of the common law offence of kidnap as being:

(i) the taking or carrying away of one person by another; (ii) by force or fraud; (iii) without the consent of the person so taken or carried away; (iv) without lawful excuse; and (v) so as to be deprived of his liberty.

It is to be noted that there is an absence of any reference as an ingredient to gain or reward. In the absence of any penalty having been specifically provided for in any Ordinance, section 101 I of the Criminal Procedure Ordinance, Cap. 221 provides that the maximum punishment is seven years imprisonment and a fine.

Archbold Hong Kong (2013) 20-336 et seq; 20-357 et seq. Archbold (2013) 19-418 et seq. Blackstone (2013) B2.95 et seq.

Issued September 2013 63.1

63. MANSLAUGHTER — BY A DANGEROUS AND UNLAWFUL ACT 誤殺— 由危險和非法行為導致

(BECAUSE INTENT TO KILL OR CAUSE REALLY SERIOUS BODILY HARM IS NOT PROVED) （因為證實不到殺人的意圖或造成非常嚴重的身體傷害的意圖）

A killing is manslaughter if it is the result of an unlawful act by a defendant where the unlawful act is one which all sober and reasonable people would inevitably realise must subject the victim to the risk of some harm — albeit not serious harm — whether the accused realised this or not.

The burden of establishing manslaughter on this basis is, [once again and as always], on the prosecution. You may not convict the defendant of manslaughter on this basis unless you are sure that:

1. the defendant committed an act which caused the victim‘s death;

2. the act was intentional;

3. the act was unlawful; and

4. the act was dangerous in the sense that it was one which all sober and reasonable people would realise must subject the victim to the risk of some harm.

如果被告人作出某個非法行為，引致受害人死亡，而非法行為，是所有神志清醒、明白事理的人都會必然察覺到是帶有令受害人受到某種程度的傷害的風險的，這樣的殺人就是誤殺。至於被告人本人是否察覺到這個風險，又或受害人可能受到傷害嚴重與否，都不重要。

證明以上述原則為基礎的誤殺罪的責任，由始至終都是由控方承擔的。除非你們肯定以下各項事情皆屬真確，否則一定不能裁定被告人誤殺罪成立：

1. 被告人的行為導致受害人死亡；

2. 該行為是蓄意的； 3. 該行為是非法的；及

4. 該行為是危險的，意思是所有神志清醒、明白事理的人都必然察覺到是帶有令受害人受到某種程度的傷害的風險。

Issued September 2013 63.2

Note:

In Sze Kwan Lung and others v HKSAR [2004] 7 HKCFAR 475 the CFA, on the particular facts of that case, declined to embark on the question of whether the result would differ if the issue was approached on the basis of the test identified by the High Court of Australia in R v Wilson 174 CLR 313, namely that the accused realized that the unlawful act exposed the victim to an appreciable risk of serious injury, rather than the direction set out at (4) taken from the judgment of the House of Lords in R v Newbury [1977 ] AC 500.

Archbold Hong Kong (2013) 20-102 et seq. Archbold (2013) 19-112 et seq. Blackstone (2012) B 1.75 et seq.

Issued September 2013 63A.1 63A. MANSLAUGHTER BY GROSS NEGLIGENCE 由嚴重疏忽導致誤殺

Before you may convict the defendant of the offence of manslaughter by reason of gross negligence in respect of [count 1] on the indictment you must be satisfied so that you are sure of the following ingredients:

(1) that the defendant owed a duty of care to the victim ;

(2) that the defendant was in breach of that duty of care;

(3) that the breach of the duty of care caused the death of the victim; and

(4) that the breach of the duty of care constituted gross negligence, in that the circumstances were such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death* so that you, the jury, consider the defendants actions justify a criminal conviction.

It is for you to decide which facts you find proved: whether or not there was a duty of care owed by the defendant to the victim; whether or not there was a breach of that duty of care by the defendant; whether or not that breach caused the death of the victim and whether or not a breach of the duty of care owed by the defendant to the victim constituted gross negligence that justifies a criminal conviction

你們必須信納和肯定下列各元素都是真確，才可以裁定被告人公訴書上 [ 第一項控罪] ，即嚴重疏忽導致誤殺罪成立：

( 1 ) 被告人對受害人負有履行謹慎的責任；

( 2 ) 被告人違反了這個謹慎的責任；

( 3 ) 違反這個謹慎的責任引致受害人死亡；及

( 4 ) 違反這個謹慎的責任是嚴重疏忽，意思是案中情況會使合理謹慎的人預見一個重大和明顯的危險，就是受害人不只會受到傷害甚至嚴重傷害，而且是會死亡的 * ，以致各位陪審員，你們會認為被告人作出如此行為理應被判犯了刑事罪。

哪一部分的案情被證實為真確，由你們決定：即被告人是否對受害人負有履行謹慎的責任；被告人是否違反了這個謹慎的責任；違反這個謹慎的責任是否引致受害人死亡；及被告人違反他對受害人須履行謹慎的責任是否嚴重疏忽以致他理應被判犯了刑事罪。

* See the judgments of the Court of Appeal of England and Wales in R v Misra [2005] 1 Cr App R 21 at paragraph 52, followed in R v Yaqoob 2005 EWCA Crim. 2169 at paragraphs 28 and 29). See also R v Adomoko 99 Crim App R 362; R v Evans (Gemma) [2009] 2 Cr App r 10 and Direction 15 above at footnote (6).

Archbold Hong Kong (2013) 20-114 et seq. Archbold (2013) 19-122 et seq. Blackstone (2013) B1.85 et seq. Issued September 2013 64.1

64. MURDER 謀殺

Murder is committed when a person unlawfully kills another and, at the time of doing so intends either to kill that other person or to cause that other person grievous bodily harm (really serious bodily harm).

The burden is throughout on the prosecution to prove each ingredient of the offence beyond reasonable doubt.

So, before you may convict the defendant of the murder of Ms [X] you would have to be sure of each of the following matters :-

1. that the defendant committed an act or acts which caused the deceased‘s death;

2. that the killing was unlawful; and

3. that at the time of the act or acts which caused Ms X‘s death the defendant either intended to kill her, or intended to cause Ms X grievous bodily harm — in other words, really serious bodily harm.

If you are not sure of any one of those ingredients, then the defendant is not guilty of murder.

If you are sure of all these ingredients, then (subject to the question of provocation/diminished responsibility which can, in the circumstances about which I will direct you in due course, reduce a finding of murder to one of manslaughter) the defendant is guilty of murder.

如果某人非法殺死另一人，而他這樣做的時候意圖殺死那人或者意圖使那人身體受嚴重傷害，他便犯了謀殺罪。

自始至終，控方都承擔舉證責任，必須要把控罪的每個元素證明至沒有合理疑點的程度。

因此，你們必須肯定下列事情每項都是真確，才可以裁定被告人謀殺[X] 女士罪名成立： —

1. 被告人作出的某個或多個行為導致死者死亡；

2. 殺死死者是非法的；及

3. 被告人作出導致 X 女士死亡的某個或多個行為時，被告人意圖殺死她，或意圖使 X 女士身體受嚴重傷害。

如果你們對這些元素的任何一個不肯定是真確的，被告人的謀殺罪便不成立。

Issued September 2013 64.2

如果你們肯定這些元素全部真確，被告人的謀殺罪便成立。（除非激怒／減責神志失常這個辯護理由適用，令謀殺可減輕為誤殺。這些辯護理由是否適用我稍後會向你們講述。）

Archbold Hong Kong (2013) 20-4 et seq. Archbold (2013) 19-1 et seq. Blackstone (2013) B1.1 et seq.

Issued September 2013 65.1

65. RAPE 強姦

(Section 118, Crimes Ordinance, Cap 200)

A man commits rape if he has sexual intercourse with a woman who at the time does not consent to it and, if at the time he has sexual intercourse with her, either he knows that she does not consent to it, or is reckless as to whether she consents to it.

Sexual intercourse is penetration by a man‘s penis into a woman‘s vagina. The slightest degree of penetration is enough, and it is not necessary to prove that ejaculation took place.

Before you may convict the defendant, you have to be sure of each of the following matters :

1. that the defendant had sexual intercourse with Ms [X];

2. that at the time of that act of sexual intercourse, Ms [X] did not consent to it; and

3. that at the time of sexual intercourse, either the defendant knew that Ms [X] did not consent or was reckless as to whether she consented to sexual intercourse.

The defendant was reckless as to whether Ms [X] consented to sexual intercourse if you are sure that he knew that there was a risk that she was not consenting and carried on anyway [when in the circumstances known to him it was unreasonable to do so].

Add, where appropriate:

任何男子與一名女子性交，而該女子當時是不同意這行為的，及他與該女子性交時知道該女子不同意這行為，或罔顧該女子是否同意這行為，就是犯了強姦罪。

性交是把男性的陰莖插入女性的陰道內。最些微的插入便已足夠，無須證明有射精。

你們必須肯定下列事情每項都是真確，才可以裁定被告人罪名成立。

1. 被告人與[X] 女士性交；

2. 這性交行為進行時，[X] 女士不同意這行為；及

3. 性交進行時，被告人知道 [X] 女士不同意性交，或者罔顧她是否同意性交。

Issued September 2013 65.2

如果你們肯定被告人知道有一個風險，即是這個女子是不同意性交的，但被告人不管怎樣仍然繼續下去 [ 而在當時他所知的情況下，他是沒有道理這樣做的 ] ，那麼，被告人就是罔顧 [X] 女士是否同意性交。

如適用，加上：

不過，如果被告人因為他的年紀或個人特徵 [ 詳細說明 ] ，而真的不了解或不預見有一個風險，即是[X] 女士是不同意性交的，被告人就不是罔顧[X] 女士是否同意性交。

See the Notes to Direction 17.

Where honest belief is a live issue :

If it is or may be the case that the defendant believed that she was consenting, then he cannot be guilty of rape. It is not for the defendant to prove that he believed that she was consenting; rather, it is for the prosecution to prove, so that you are sure, that he did not believe that she was consenting to sexual intercourse. And what if he held that belief but was mistaken? Well, if it is or may be the case that he held a genuine but mistaken belief that she was consenting, then you must acquit him. In deciding whether or not he believed or may have believed that she was consenting, you should have regard to the existence or absence of reasonable grounds for such a belief, and to all the surrounding circumstances. But the question must always be whether you are sure that he himself did not hold such a belief.

如果雙方爭論被告人是否真誠地相信受害人同意：

如果被告人相信或可能相信受害人是同意性交的，他的強姦罪便不成立。被告人無須證明他相信受害人同意性交，而是由控方證明，使你們肯定他並不相信受害人同意性交。如果被告人相信受害人同意，但這個相信其實是誤會，那便如何？如果被告人真的或可能真的相信受害人同意性交，但其實是他誤會了，你們必須判他無罪。你們決定被告人是否相信或可能相信受害人同意性交時，必須要顧及被告人是否有合理的理由如此相信，還須要考慮周圍所有情況。但問題始終是：你們是否肯定被告人本人沒有這樣相信過。

(See R v Adkins [2000] 2 All E.R. 185 for the limited circumstances in which such a direction may be required.)

Archbold Hong Kong (2013) 16-45 to 46 and 21-2

Note:

The Sexual Offences Act 2003, which is now in effect in England and Wales, provides a different statutory definition of rape.

Issued September 2013