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JUDGMENT – EX TEMPORE (REVISED)

1. Mr Pei Lui stands trial for murder. The trial has been progressing with a jury since Monday 18 May 2026.

2. Senior Counsel for the accused seeks that the following direction is included in my Summing Up:

“You heard evidence that the accused John Henry pleaded guilty to manslaughter, on the basis that he took part in a joint enterprise with the accused Pei Lui to steal from Mr Cheng, and that as part of that joint enterprise, the accused Pei Lui committed an unlawful and dangerous act, namely assaulting the deceased, which caused his death. Of course, the case for the accused Pei Lui is that he did not assault the deceased at all. I direct you as a matter of law that Mr Henry’s plea of guilty involved an admission, amongst other things, that he intended to steal from the deceased, at the time he took the credit card of the deceased.”

Background

3. In short, it is alleged that Mr Pei Lui and Mr John Henry were the only other people in a stairwell with the deceased, Mr Tao Cheng, when he was brutally bashed to death on 4 December 2022. Mr Cheng was a 25-year-old man who had fallen into financial hardship and was saving money by living in a stairwell located near a gaming café in a building in Sydney’s Central Business District. The deceased’s body was not discovered until about 2:50pm on 7 December 2022.

4. Mr Henry has already been tried for murder in relation to Mr Cheng’s death, but in his trial the jury was discharged after it was unable to agree on a verdict. Around three weeks after the jury was discharged, Mr Henry pleaded guilty to manslaughter and the Crown accepted that plea in full satisfaction of the indictment. Mr Henry has been called by the Crown as a witness in this trial.

5. It is relevant to note that by way of agreed facts, the following has been put before this jury in relation to the basis of Mr Henry’s plea of guilty:

[46] “The plea was accepted on the basis of responsibility at law for the unlawful and dangerous act of another arising from an extended joint criminal enterprise (i.e to steal with the risk of serious injury being caused by another).”

6. It is also relevant to note that Mr Henry was cross-examined by Senior Counsel for the accused on this topic. The cross-examination included the following:

“Q. Did you intend to steal from Mr Cheng?

A. No.

Q. At any stage, did you intend to steal from him?

A. No.”

7. Senior Counsel for the accused then put to Mr Henry that that answer was a lie, which Mr Henry denied.

Submissions

8. Senior Counsel for the accused contends that without this direction, the case for the accused is prejudiced.

9. The Crown submits that the direction is not necessary and will cause unnecessary complication. The Crown further submits that not giving the direction would not prejudice the accused, but would rather give rise to unfairness to the Crown case. The Crown submits, that having particular regard to the witness’s apparent understanding (or lack thereof) of the legal terminology used, it is not, on balance, in the interests of justice that the direction be given.

Consideration

10. In my view, it is not appropriate to include the direction sought by Senior Counsel for the accused, simply because it does not correctly reflect the law or at the very least, would create confusion for the jury.

11. First, the direction sought is not a complete statement of what is involved in an extended joint criminal enterprise (which I will explain further below). Second, it is not correct to state that as a matter of law, Mr Henry’s plea of guilty involved an admission, amongst other things, that he intended to steal from the deceased at the time he took the credit card which was in possession of the deceased at the time of his death. As noted, Mr Henry pleaded guilty to a charge of manslaughter, based on an unlawful and dangerous act arising out of an extended joint criminal enterprise.

12. The agreed facts at sentence in Mr Henry’s matter, marked MFI 20 in this trial, stated at [5]-[6]:

“There was an implied agreement to steal which was at least in effect at a time that Mr Henry held things for Mr Lui including a bank card. Prior to this, Mr Lui had said ‘Money Money’. Mr Henry, who gave evidence at his trial that he thought Mr Lui was joking, made a gesture and said ‘Money’ at that time.

Based on comments made by Mr Lui prior to Mr Henry's conduct, Mr Henry reasonably foresaw the real possibility that Mr Lui may act beyond or outside the agreement to steal, by assaulting the deceased and exposing him to a risk of serious injury.”

13. Further at [36] of Mr Henry’s agreed facts at sentence:

“In recounting the events in the stair well on those occasions, Mr Henry indicated that Mr Lui had said ‘Money Money’, and thinking Mr Lui was joking, Mr Henry said ‘Money’ and made a hand gesture. Mr Henry described that Mr Lui passed him certain items when Mr Lui was assaulting the deceased, including a bank card. The physical actions in holding these items make out an implicit agreement with Mr Lui to steal from the deceased. Although Mr Henry did not agree to Mr Lui assaulting the deceased, at the time of his conduct, Mr Henry foresaw that Mr Lui may use violence on the deceased in seeking to take money or other valuables from him”.

14. It is important to remember that a joint criminal enterprise exists where two or more people reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all of the facts and circumstances surrounding the commission of the offence that are found proved on the evidence. The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime, the participants have agreed that the crime should be committed by either one of them. It does not matter whether the agreed crime is committed by only one of the participants in the joint criminal enterprise.

15. In general terms, participation in an agreement can be proved, for instance, by presence or by assisting or in some other way which furthers the agreement, with knowledge that the crime is to be or is being committed by another: Huynh v The Queen [2013] HCA 6 at [38]ff; (2013) 228 A Crim R 306; R v Tangye (1997) 92 A Crim R 545 at 556-557. Thus, in my view, it is simply not correct or at the very least, it would cause confusion for the jury, to say that as a matter of law, Mr Henry’s plea of guilty necessarily involved an admission, amongst other things, that he intended to steal from the deceased.

16. Further, to be guilty of manslaughter on the basis of an extended joint criminal enterprise, it is necessary to prove the accused had foresight of a real possibility that in carrying out the agreed crime, the other person might commit a further crime. In Mr Henry’s case, the further crime is an assault which was objectively unlawful and dangerous, and Mr Henry continued to participate with the relevant foresight. That particular aspect of what is involved in an extended joint criminal enterprise is not contained within the proposed direction. In that way, it is incomplete, and in my view, therefore incorrect.

17. Finally, for completeness, I note that, as a matter of evidence in this trial against Mr Lui, Mr Henry did not consistently give the same account in relation to holding a bank card in the stairwell, as was recorded in the agreed facts in Mr Henry’s sentence proceedings. This is a matter which may, no doubt, be addressed by Senior Counsel for the accused in his closing address.

18. I decline to make the direction sought by the accused.

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