HKSAR v. Cheung Moon Keung

CACC000179/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.179
(Criminal)

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Coram: Hon. Power, V.-P., Mortimer, V.-P. and Stuart-Moore, J.A.

Date of Hearing: 3 June 1998

Date of Delivery of Judgment: 30 June 1998

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant faced one count of robbery, two counts of murder and two counts of preventing a lawful burial. He pleaded guilty to the robbery but not guilty to the other counts. He was, after trial before Saied J. and a jury, found guilty on each of those counts and sentenced to eight years on the robbery, to life on each of the murder counts and to two years on each count of preventing a lawful burial. All of the sentences were ordered to be served concurrently. He now seeks leave to appeal against his conviction on the two murder counts. He has abandoned his appeal against conviction on the two counts of preventing unlawful burial.

2. It was not in issue that the victims Yung Tze-lun, aged 21 and his girlfriend Chan Chik-yee, aged 16, were lured to an unoccupied hut on Lantau Island on 7th October 1995 by Lo Yau-fuk ("Lo"), also known as Fei Chai, so that they could be robbed. Lo enlisted the assistance of a man called Lam Chung ("Lam") and of the applicant to assist in the robbery. During the robbery, the victims were tied up and then killed by Lo who used a wooden pick-handle to strike repeated blows to their heads.

3. It was the applicant's version, both in his video statements to the police and in his evidence, that he and Lam had agreed with Lo, who was a former schoolmate, to commit a robbery. He says that he agreed to participate with some reluctance. Knives were purchased, the two victims were ambushed, tied up and robbed and Lo then, unexpectedly, beat the man and then the girl to death. When he came to give evidence he said that he had tried to stop the attack on the victims which was entirely outside the contemplation of the plan to rob. It is to be noted that only Lo was known to the victims and so only he could have been identified by them. The applicant said that Lam had told him that, after the robbery, the three men would return to Hong Kong and would then ring the police telling them to go to the hut where the victims had been left.

4. In order to appreciate the nature of the evidence upon which the prosecution was relying and to understand the grounds of appeal, it is necessary to look with particular care both at the video taped interviews under caution made by the applicant and at his evidence.

5. The first interview (Exh.27(b)) was made, almost five months after the incident, in the office of the Regional Crime Unit, New Territories North. It was taken by Detective Sergeant 68 Fung Kwok-chuen. It commenced at 1.07 p.m. on 29th February 1996 and was completed at 2.09 p.m. In the passages which follow, the questions have been omitted so that what was said by the applicant can be more easily understood. In the first interview, the applicant said that Lo had phoned him on 5th October 1995:

"Then Ah Fei Chai, i.e. Lo Yau-fuk. Then he found me. He phoned my company. He said he spent all the money in Kwai Shan. Had no money to come back to Hong Kong. Well then told me to take a vessel, told me to look for a vessel to take him back to Hong Kong. Well, I went to Tai O. Well, took a vessel to look for a friend called 'Sam Chiu'. Well, look for a vessel to go to Kwai Shan, then saw Lo Yau-fuk. Well, after having meal with him in Kwai Shan, then returned to Tai O by vessel. The Tai O in Lantau Island. Well, he then went to Mui Wo, then got to Mui Wo, then. Upon arrival at Mui Wo, he said he wanted to rent a bungalow house. Then a friend would come to play. I asked who the one was, and he said it's Lam Chung. I also came to know Lam Chung. He said he came to play. Then I rented a bungalow house and played with him. Then, on that night, i.e. on the night of 5th of October. I stayed over one night with him in the bungalow house. He said that on the next morning, he went to look for Lam Chung. After looking for Lam Chung. On the next morning, took a vessel to look for Lam Chung. Well, after looking for Lam Chung, I cannot recall where we had dated. Later, went with him to see doctor, to see doctor in an unknown hospital. I cannot recall. After seeing doctor, I walked around with them, for a while. Then went back to Lantau Island by vessel. In that night, there was nothing. Over there, played in Lantau Island. Well, even borrowed a vehicle to have a joy ride. There was nothing when we had meal. There was nothing in the place of bungalow house. On Saturday. Saturday. Fei Chai told Lam Chung and I. Went to Lai Chi Yuen, awaited him at Lai Chi Yuen. He said two friends had come and told us to go to the place of Lai Chi Yuen. Upon arrival at Lai Chi Yuen, the people of Lam Chung told me saying would go to rob. When Fei Chai took two persons, one male and one female." (Emphasis supplied.)

6. We pause here to note the admitted extent of the applicant's involvement with Lo. It was he who brought him from China and it was he who rented the bungalow. He admitted spending the two days prior to the robbery and murders with Lo. He appeared to be saying that only after arrival at Lai Chi Yuen was he told that there would be a robbery. The interview went on as follows:

"At the time, it was dark at night. I couldn't see which one ... After coming, he said robbery, then robbed the two. Fei Chai (Lo) then got a rod. A rod of such length, hit the male and female to death ... Then took them to the places of ditches and left there .... I did as a lookout at the outside .... Then they went back to the cemetery, took some spade, etc. down ... Then dug a hole ... While he was digging, then I, told me to go to assist in digging ... Then dug a hole and buried the two, one male and one woman ... Then, we returned to the bungalow house ... Then, past one night, on the next morning, returned to Hong Kong by vessel. Then, upon arrived at Hong Kong, Lam Chung left himself by vessel ... Well, Fei Chai, went with me to Wan Chai, by taxi. I recall that he got off the taxi in Southorn playground. Then took a cash withdrawal card, pressed for money in the place of cash withdrawal card ... Well, you people have said pressing for money. People have pressed Yung Tze-lun's code account, because he, at the time, while he was robbing, he asked people for the card ... Well, asked something about the account ... Then, he gave me one odd thousand dollars, then .... He had a meal with me .... Also he had had hair cut. He had hair cut. Then he said he had a friend who was arrested by public security in Ling Ting .... Then told me, went back to Tai O with him, then looked for a vessel to send him to Ling Ting. That is it." (Emphasis supplied.)

He then agreed to take the police to the place of burial.

7. We pause here to note that in this passage the applicant admits that he remained with Lo after the murder; that he accompanied him to Hong Kong; that he accepted part of the money that was drawn from the male victim's account; that he then accompanied Lo to Tai O and booked a vessel to send him to Ling Ting.

8. Leaving to one side what the applicant said about the robbery and the murders we think it proper to underline the admitted intimate involvement with Lo on the days preceding and following the offences.

9. The second interview (Exh.P1(b)) took place in the interview room of Mui Wo Police Station. Again Detective Sergeant Fung was the interviewer. It commenced at 5.28 p.m. on 29th and was completed at 11.04 p.m. The applicant agreed that he was willing to reconstruct the case at the scene and the party then proceeded to the scene.

10. When the party arrived at the scene, the applicant said:

"Look, this house is an unattended house. Nobody lived there. Well, on that night, Lo Yau-fuk brought one male and one female to this place.... Then a robbery took place here ... Following that Lo Yau-fuk suddenly fetched a pole from behind ... and struck the male and female to death with it ... Following that they were removed to that place and buried there."

11. The third interview (Exh.P10(b)) was again taken by Detective Sergeant Fung at 12 noon on the next day 1st March. It was completed at 4.04 p.m. The initial questions took place in the interview room at Mui Wo but the party then returned to the scene where the applicant said when describing the robbery:

"Well, on that night, it was, Lo Yau-fuk, I only heard him say, say, took a taxi with a man and a woman to go to Lai Chi Yuen there and then took the two of them down here ... Then, asked me and Lam Chung to wait for him here saying to rob the two of them ... Well the sequence was, following that, I saw them and then Lo Yau-fuk walked in front ... After that, the man and the woman, I don't remember the sequence. The 4th one was Lam Chung. I walked at the rearmost. Well, approximately came to this spot, then Lo Yau-fuk walked to the front most here and then stood on the embankment there asking the man and the woman to go in, like this. Lam Chung had a knife. I had a knife, and used them to rob them ... Then Lam Chung threatened the two of them with the knife. Well, I also helped to push the two of them in. After pushing the two of them in, we asked them to crouch down, crouch down and then found some adhesive tapes to bind their mouths .... Having come inside, having come inside here, told the two of them to crouch down and then found some adhesive tapes for sealing the cartons to stick on their mouths and eyes ... Well, pushed them in here like this, at this spot, like this I and Lam Chung pushed them in. Fei Chai said to go in ... Then, the two, I pushed him in from behind like this ... Then, Lam Chung held the woman down ... I held the man down ... Then, Lo Yau Fuk took some adhesive tapes which were the adhesive tapes for sealing cartons ... Then stuck on the mouths as well as the eyes of the man and the woman ... both of them were tied up by Lo Yau-fuk.... Then, Lo Yau-fuk walked outside again ... When walking back .... was holding a stick of a pickaxe ......When reaching here, he asked Lam Chung ..... to find an electric torch ... To throw the light on Yung Tze-lun's head ... took the stick of the pickaxe ... to hit the boy's head...... told Lam Chung to throw the flash light on his head ... Following that, the electric torch was switched off. Then he, from here, hit on it like this ... suppose he had hit approximately 4-5 times. Following that, threw the flashlight on him again and saw that he had no response. Then, he came over here. He stood here and then told me to throw the flashlight on the girl's head.... Threw the flash light on the girl's head. He stood here, like this, used the stick of the pickaxe, also to hit on the girl's head like this... Hit the girl. After hitting, he again, again went out .... Looked around like this, looked around ... Walked forward and backward like this, looked around ... Following that, he said, 'Alright, carry the two of them down.' After that, he told the two of us to give a hand to move the female one." (Emphasis supplied.)

12. The applicant went on to tell of the movement of the bodies and then said:

"Only I remained here. I picked up all the plastic bags and the two knives and the stick of the pickaxe."

The applicant took the police officers to the place where the knives and the pick handle were discarded and to the burial place.

13. There was a clear admission in this interview that, having seen Lo beat the male victim into unconsciousness and having seen him use the flashlight to confirm that this was so, the applicant complied with Lo's direction to throw the flashlight on the girl's head and witnessed Lo beating her to death. When considering these three interviews it must be borne in mind that they were given almost sequentially from 1:07 p.m. on 29th February to 4:04 p.m. on 1st March and that they give every indication of what appears to be a clear recall by the applicant of the details of the incident.

14. His fourth interview, Exh.P41(b) at the office of the Regional Crime Unit, New Territories. Again the interviewer was Detective Sergeant Fung. It commenced at 3.07 on 6th March, five days after the previous interview.

15. In this interview the applicant told, in greater detail, how, on Thursday 5th October 1995, he obtained a boat and went in it to China to pick up Lo and how on their return he, at Lo's request, had rented a holiday bungalow at Mui Wo. He said that on Friday 6th October they went to Hunghom and met Lam, that Lo went to see a doctor and that they bought two knives and bandages to wrap the handle of the knives that they then returned to Mui Wo and:

" On arrival at Mui Wo, (we) went to the holiday bungalow. On arrival, (we) went to the holiday bungalow. After that Lo Yau-fuk started telling the two of us. He said that later on, not later on, he said he had made an appointment with someone to come here on Saturday. He said that he had made an appointment with someone to come here. (He) said, 'robbery'. (He) said 'robbery'. At that time, on hearing what he suddenly said, (we) did not know what he was going to do. He said the situation was like this, like that. It was said that he had departed. He said that these persons that he wanted to rob were not known to LAM Chung and me. If (we) robbed him, he went to find me. (He) went to find me but (I) had departed. He could not have evidence. He would be alright. In addition, you two did not know him. It was dark. By that time, it was dark at night, he could not recognize you two. You two would be alright. Furthermore, based on what I knew about his character, if he told you something, you refused to work with him; he would definitely, whether he would just kill you to prevent you from disclosing a secret, I dare not say. He would definitely trouble your family members and also you. I am absolutely sure about that. At that time, I did not know what Lam Chung would think about it. I did not know whether LAM Chung was aware of it either. At that time, (I) really did not have any other means but to go to rob with him. After that Lam Chung related the same things to me. (He) said the same things to me. He said that (he) did not know whether we, Lo Yau-fuk and I, had made an arrangement beforehand that if he ran away, (he) was afraid that we would harm him. I also had such an idea at that time. I also had such an idea that if I did not promise him at that time, I did not know whether Lam Chung and Lo Yau-fuk would harm me. I also had such an idea."

16. The applicant here states, for the first time, that the robbery was discussed on the previous evening in the bungalow. He seems to be suggesting that it was Lo's plan to absent himself at the time of the robbery and that if Lo was absent there was no danger that he would be recognized and there was, therefore, no reason for the applicant to suspect that Lo might have intended to do away with the victims. There had been no such suggestion in the earlier statements. He also, for the first time, makes mention of his fear of Lo and suggests that he and Lam were, to an extent, coerced into participating. He goes on to describe the incident itself:

"We pressed the two of them to go in...... Lo said he was going to rob and then gagged and tied them and then all their valuables were taken..... Lo went out and then came back holding 'a piece of pick pole'...... When he entered, he told either Lam Chung or me, anyway only one (of us), because I, Lam Chung and I both were holding an electric torch in our hands. (He) either told me to hold an electric torch to shine on the head of the man or (he) told Lam Chung (to do it). In any event, the position was switched because at that time one (of us) was pressing one (of them). He told someone, he told the two of us to shine on the head, to switch on the torch to shine on the head, and then to switch off the electric torch. Then Lo Yau-fuk picked up the piece of 'pick-pole' and hit on the man's head first. He hit on the head like that for about 4 to 5 times. Then (he) took the electric torch to shine on (it) and to take a look. (He) switched off the torch after taking a look. (He) then hit (him) again. The total number of times he hit the man should about 8 to 10 times. Then he turned around and told either me or Lam Chung to shine on the woman's head first. Then the electric torch was switch off, (she) was hit like that. (He) then took the piece of 'pick-pole' to hit on the woman in such a manner for about 4 to 5 times. (He) then shone on the two heads and saw that there was no response. I saw that these two persons who were still alive were beaten to death at that time. (He) shone, (he) took a look at the two of them and saw that there was no response."

17. The applicant went on to tell how he assisted in the burial and disposed of the weapons. He again detailed how Lo had withdrawn money from the automatic teller and given him a share and how he had later accompanied Lo to China.

18. There are significant differences between this interview and the third interview. He here states that the robbery was discussed the evening before it occurred and has added a suggestion that there was some degree of coercion. He is, further, now saying that he is not sure who was asked to shine a torch on the victims.

19. When the applicant came to give evidence in March of 1997, some 12 months later, his version was very different:

"Q. Yes. Go on then. You say that he called to you.

A. He told me to hold the torch...

Court: To?

Interpreter: To hold the torch.

A. ...to shine the light on it.

Q. Shine the light on it.

A. Yes. He told me to shine the light.

Q. You said 'on it', what do you mean by 'on it' ?

A. I also asked him what was the purpose of holding the torch and to shine the light.

Q. What did he say?

A. And he said the two persons were not yet firmly tied up, they were only just lying on the ground.

Q. Go on.

A. I then pick up a torch from the ground and I then shone the light onto the boy as instructed by him.

Q. And then what?

A. I switched on the torch, however, he said to me very quickly, 'Switch it off'.

Q. Any idea why he said that?

A. No idea.

Q. What happened next?

A. At that time, when I heard him say 'Switch it off', at the same time I did so, I switched it off.

Q. Go on.

A. Once the torch was switched off, I then heard several sounds of a pole hitting on the ground.

Q. Go on.

A. I felt that he was hitting on the boy.

Q. Could you actually see that?

A. Even though it was dark, but I could still see his silhouette. He was hitting like that (Demonstrates) ....

Court: Bringing both hands down from his head.

A. ...causing a sound, thump, thump thump.

Q. Did you react to that at all?

A. Seeing that, I shouted to him. Once, I said, 'Wai'..(indistinct) .. two words.

Interpreter: W-A-I, Romanisation.

Court: It would be what, how do you spell it? O-U-I or what, something like that?

Mr. Dinan: W-A-I, I think

Interpreter: W-A-I or W-E-I.

Mr. Dinan : A-I or E-I.

Court: WAI. All right, W-A-I. Yes, all right.

Q. Yes, go on.

A. And after I had uttered this shout, I could not utter anything else and I wanted to rush forward.

Q. Go on.

A. I wanted to rush forward to knock him away with my shoulder. (Demonstrates).

Court: Yes.

Q. Yes, go on.

A. When I rushed forward, he just slapped away my torch with his hand. (Demonstrates).

Q. Yes, go on.

A. He then said to me, 'You walk away. Don't move'.

Q. Well, that seems like a slight contradiction in instructions. What do you think he meant by that?

A. He meant to tell me to walk away first and then I should not make any move to prevent him.

Q. What happened then?

A. And then he shouted out, 'Ah Chung, keep watch over him'.

Q. Yes, go on.

A. I then stepped back several steps or paces until I reached the corner of this doorway ....

Interpreter: Referring to photo - photo 1 of P52.

A. ...right next to this window. I was still inside the fencing area.

Q. Right.

Court: Yes.

Q. Yes, go on.

A. I then saw Lo Yau-fuk switch on the torch and then I could see blood.

Q. And what did you see?

A. Lo Yau-fuk shone the light on the spot where the boy was.

Q. Yes.

A. I was not looking at the spot where the light was shone on, I was looking at the faces of Lo Yau-fuk and Lam Chung.

Q. Why was that?

A. Because at that time, I was very frightened. I was looking at them. I, in fact, wanted to ask him questions but I was not able to speak out.

Q. And why were you not able to speak out?

A. I really don't know why I was not able to speak out even though I wanted to say something, but I was not able to do so.

However, I could still see that LAM Chung had switched on the torch.

Q. Yes.

A. Once he had switched on the torch, again Lo Yau-fuk very quickly said, 'Switch it off'.

Q. Yes, go on.

A. It was about one or two seconds between the time he had switched on the torch and the time he switched the torch off.

Court: Yes.

Q. Yes, go on.

A. Again, I saw Lo Yau-fuk hit the girl with great force with the pole.

Q. Yes, go on.

A. I saw that Lo Yau-fuk hit the male and female to death when they were still alive with the pole.

Q. Could you briefly describe your feelings at this time?

A. At that time, my feeling was that I was not able to save the two of them.

Court: I was not?

Interpreter: Able to save.

Court: Yes.

Q. At this stage, did you feel in any danger yourself?

A. Yes, I could feel that.

Q. And what did you think would happen if you'd tried to intervene?

A. My fate may -- might be the same as these two persons, the male and the female.

Q. Why didn't you run away at this time?

A. I wanted to - I wanted to run away, however, I was not able to. I could not walk. It seems that my both legs could not move.

Q. Right. To put it perhaps in an English colloquial way, you were frozen to the spot by what you were observing at the time.

A. Right."

20. This evidence is strikingly different from what was said in the third and fourth interview. In the third interview, the applicant said that Lam shone the torch on the boy and that, after seeing Lo strike the boy, he had complied with a request from Lo to shine the torch on the girl, after which Lo commenced to beat her. In the fourth interview, he had said that he was not sure who had shone the torch on the man and on the girl. In his evidence, he is saying that he shone the torch on the victims but only after he was told that it was to see whether they were properly tied up.

21. Strikingly in neither interview was there any suggestion that, far from being involved in the killings, he had, at risk to himself, tried to intervene to save the victims.

22. It seems to us that the judge was indicating to the jury that they could approach the evidence in the following three ways:

(i) If the evidence of the applicant was or might be true?

They were, quite properly, told that if they considered that "the defendant's version is true or might be true ... find the defendant not guilty".

(ii) If all of the exculpatory matter in the evidence and interviews of the applicant was rejected?

They could properly have been told that they could, leaving aside the exculpatory matters, upon the basis of what was proved and otherwise admitted, ask themselves whether they were prepared to infer that the applicant had, from the outset, allied himself to a plan to rob and to murder. They could have been told to take into account not only his admissions of what occurred at the time of the robbery and murders but also what the applicant admitted took place in the days preceding and following the incident.

(iii) If the least involvement of the applicant was as indicated in his third statement?

They could have been told how to consider the matter if they accepted as true what might be termed the high water mark of his admissions, namely those made in his third interview. The direction could properly have been that if they rejected his exculpatory evidence and the exculpatory matters in the fourth interview but accepted his admission in the third interview that, having seen Lo strike the male victim, he had, at Lo's direction, shone the torch on the girl's head that was evidence upon which it was open to them to be satisfied that he was involved, at least, to an extent that would be sufficient to establish guilt of the murder of the female victim.

We turn now to the directions which were given.

23. The judge, early in his summing up, told the jury:

"murder requires intention, nothing less will suffice. That is, murder is a crime requiring specific intent. You simply have to decide whether the defendant intended to kill YUNG Tze-lun, the victim in count two, or to do him serious bodily harm, so also with Chan Chik-yee, the victim in count three, whether he intended to kill her or do her serious bodily harm. In order to reach that decision you must have regard to all the relevant circumstances including what the defendant himself said and did."

24. He had already told the jury that irrespective of the fact that evidence comes from the same source, they must consider each count separately. Having reviewed the evidence, he told the jury it was the prosecution case that the applicant was equally responsible for the deaths of the two victims on the basis of his involvement with the other two in a joint enterprise to rob and to kill the victims.

"You may think on the basis of the defendant's own admissions and his evidence that there clearly was a common design to rob and I must make it quite plain that that would not suffice to convict this defendant of murder unless the common design included the use of whatever force was necessary to achieve the robber's object or to permit escape without fear of subsequent identification even it involved killing or the infliction of serious bodily injury on the victims."

25. The prosecution case, as the judge plainly put it to the jury, was that there was "a joint enterprise to rob and to kill the victims".

26. The judge then directed the jury that:

"where two or more persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, and that includes liability for unusual consequences, if they arise from the execution of the joint enterprise, but if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of the unauthorized act."

27. He then told them:

"It is for you to decide whether what was done was part of a joint enterprise, or went beyond it and was, in fact, unauthorized by the joint enterprise."

28. Given what had gone before, the jury must clearly have understood those words to be a direction that if the joint enterprise was only to rob and Lo went beyond that embarking upon the two killings, then they would be unauthorized acts for which the applicant would not be liable.

29. The judge then, at p.44 of his summing up, gave a foreseeability direction along the lines of that set out in R. v. Powell & Daniels (1998) 1 Crim.App.R. 261. We will come later to an objection to the form of this direction, which is the subject of Ground 2. Suffice for present purposes to say that the judge told the jury that if one offender realized, without agreeing to such conduct being used, that another offender might kill or inflict serious injury and, nevertheless, continued to participate, that would amount to a sufficient mental element for him to be guilty of murder if the other party had the requisite intent to kill in the course the venture. This direction would clearly have application to (iii) above. It would not apply to the first murder as there was no evidence to suggest that there had been any realization of an intent to kill or do serious bodily harm at some point during the attack prior to Lo's striking the male victim.

30. The judge then said:

"You must understand that it is possible that a defendant whilst being a participant in a joint enterprise and responsible for the unintended consequences of the acts done in the course of the carrying out of the joint enterprise may lack a specific intent possessed by another participant, that murder is a case of specific intent, as I explained earlier, that intention to kill or to cause actual bodily harm must be there. So that is the specific intent, and here the law says that it is possible that a defendant whilst being a participant in a joint enterprise and responsible for the unintended consequences of the acts done in the course of the carrying out of the joint enterprise, may lack a specific intent possessed by another participant. In any given case the issue may arise what was the scope of the joint enterprise. And depending upon what answer is given to that question, a further question may arise where a crime of specific intent as in murder is charged, what was the state of mind of the defendant?"

31. The judge then went on:

"Quite clearly, if the act was not committed in the course of carrying out the joint enterprise in which the defendant was a participant, and that is a matter of fact for you, then the joint enterprise ceases to provide a basis for a finding of guilt against such a defendant and he ceases to be responsible for the unauthorized act. You must understand this.

I will read that again. Quite clearly if the act was not committed in the course of carrying out the joint enterprise in which the defendant was a participant, and that being a matter of fact for you, then the joint enterprise ceases to provide a basis for a finding of guilt against such a defendant and he ceases to be responsible for that unauthorised act which went beyond the joint enterprise. But, and I emphasize this, it does not follow that a variation in the intent of some of the participants at the time the critical act is done precludes the act from having been done in the course of carrying out the joint enterprise.

It does not follow that a variation in the intent of some of the participants at the critical time the act is done, does not preclude the act from having been done in the course of carrying out the joint enterprise."

32. The judge after dealing with the defendant's evidence that a robbery was intended said:

"Up to this point you may consider what the defendant's state of mind was. You may say, and it is a matter for you, that clearly he was saying that his involvement finished as soon as the robbery was completed for that is what he had agreed with the principal, Lo Yau-fuk, but he stayed on and was preparing to leave when he saw Lo Yau-fuk walking up and down and then return inside within one and half minutes holding a pickaxe handle."

33. He reminded the jury of the applicant's evidence of an 'innocent' explanation for the shining of the torch, of his evidence that he had tried to intervene. He pointed out that neither of these matters had been mentioned in the interviews. He then said that the jury might be assisted when considering the scope of the joint enterprise by comparing his evidence in-chief, in which he said Lo had asked him to shine the torch on the man first, and what he said in his third interview, which was that Lo had told Lam to shine the torch on the man. He also reminded the jury that the applicant had said that his evidence in-chief was correct as the time he spent awaiting trial enabled him to clear up his mind. He reminded the jury also of the version in the fourth interview as to the shining of the torch which was in conflict with the version in the third interview.

34. The judge then identified for the jury what he seems to have considered was the crucial admission made by the applicant. He said:

"You may think, and it is a matter for you, that the defendant seems to have realised that those answers coming as he provided them in his interview indicate that he must have realised in terms that I explained earlier when asked by Lo Yau-fuk to shine the torch on the girl's head, what Lo Yau-fuk was going to do having seen what he had done to the young man a very short while ago." (Emphasis supplied.)

35. The judge was here indicating to the jury that the applicant must have been aware of Lo's intent after he had seen what he had done to the male victim. The judge then said:

"It is for you to assess his veracity and his reliability and his credibility and keeping all this in mind, if you reach the conclusion that these contradictions go to his credit and affect his reliability and credibility, you will then proceed to consider what, in those circumstances, where the defendant had also omitted to mention that Lo Yau-fuk, upon being asked by the defendant why he wanted to shine the torch on the two victims said, they were not firmly tied up, whether he was being truthful as to the scope of the joint enterprise, and if you find that he was in fact told to shine the torch on the girl's head after what Lo Yau-fuk had in his presence and sight done to the boy's head, then what inference would you draw to the defendant's state of mine. That also was a matter for you." (Emphasis supplied.)

36. The judge is again indicating to the jury that evidence which might establish the applicant's realization of Lo's intent was his admission that he had seen what Lo had "done to the boy's head".

37. We now come to the passage towards which criticism is directed in the first ground of appeal. This passage is as follows:

"At this stage, you may also consider why on the defendant's account, having assisted Lo Yau-fuk to sneak out of Hong Kong from Tai O, in Sam Chiu's boat on the same day after this incident, he had to go and see him in China the same night just to ask why Lo Yau-fuk had killed the couple. You will keep in mind his explanation that he had asked him this question at the holiday house but Lo Yau-fuk had refused to answer.

Do you as men and women experienced in the ways of life think that in the circumstances in which this defendant found himself, in the light of the evidence as a whole, whether his conduct was consistent with his actions earlier that day in Ngau Kwu Wan? If you reach the conclusion that his actions immediately following the robbery and his obvious willing compliance with his friend's call to shine the torch on the girl's head, if you find it to be so, whether that was with full realisation of what Lo Yau-fuk might do to the girl, having already seen what he had done to the young man, then you may find that the scope of the joint enterprise in which the defendant and his two friends were engaged in, extended to the use of such extreme force to achieve the robbers' object which, in the light of Lo Yau-fuk's reply to the defendant when he said, 'If I did not kill them do you think I could go up to the moon?', you may think was to permit escape without fear of subsequent identification." (Emphasis supplied.)

38. The first ground of appeal reads:

"The Learned Trial Judge was wrong in law in directing the jury that they could find that the Applicant knowingly participated in a joint enterprise to rob and kill and so convict the Applicant of the murder of male Yung Tze-lun if they found that the Applicant shone a torch on the head of female Chan Chik-yee, fully realizing then what Lo Yau-fuk may do to female Chan Chik-yee, the Applicant having already seen what Lo Yau-fuk had done to male Yung Tze-lun."

39. Mr. Ross, who appears for the applicant, contends that the judge was here directing the jury that if they accepted the applicant's admission that he had willingly shone the torch on the girl's head with the realization of what Lo had just done to the man, this would be evidence to establish a joint enterprise to rob and kill both victims. He argues that this logically cannot be so as the evidence would do no more than establish a realization of the intent of Lo after the attack on the first victim.

40. The judge did, it must be said, in the passage set out above refer to the applicant's continued contact with Lo after the murders and did tell the jury to look at the matter "in the light of the evidence as a whole". It is, however, not clear whether this was meant to be a direction along the lines suggested in (ii) above as the judge goes on to pinpoint one piece of evidence from which he suggests the jury might draw an inference that the applicant was party to an agreement to rob and murder both victims. This evidence is the admission by the applicant that he had seen Lo attack the man before he had complied with his request to shine the torch on the girl. Directions of the kind suggested in (ii) and (iii) above appear to have been run together. We are satisfied that the jury may have been misled by the direction given as the evidence pinpointed by the judge would not have been sufficient to establish the applicant's participation in a joint enterprise to rob and murder both victims. The admission would, however, have been sufficient to establish that he had allied himself to Lo's intention to murder the girl and to sustain a conviction of her murder. Indeed it was not argued to the contrary.

41. Mr. Ross's second ground is that:

"There was a material misdirection to the jury as the Learned Trial Judge directed in terms that the Applicant would be guilty of murder if Lam Chung realized that Lo Yau-fuk may kill or intentionally inflict serious injury during the robbery and subsequently the Applicant and Lam Chung continued to participate in the robbery and Lo Yau-fuk did kill during the robbery intending to do so or to inflict serious injury."

42. After the jury had been deliberating for some time, they sent the following note to the judge:

"My Lord, we would like to inquire the following:

(1) the definition of murder, joint enterprise - especially individual's liability, manslaughter.

(2) your logic of the inability to apply manslaughter in this case."

43. The judge, when answering the first question, said:

"The law goes further and adds this: if B or C realized, without agreeing to such conduct being used, if they realised that A may kill or intentionally inflict serious injury, if they realise that but they didn't agree to that, but they realised that this might happen and they nevertheless continue to participate with A with that realisation they continue to participate in the venture, that will amount to a sufficient mental element for B and C to be guilty of murder, if in the course of the - if A kills, having that requisite mental intention that it - to kill or to cause serious injury. And that would be so because in those circumstances, B and C will have lent themselves to the enterprise, and by so doing, given assistance and encouragement to A in carrying out an enterprise which they realised may involve murder. And I told you what is the meaning of to realise, to realise something might happen, that means, is to contemplate it as a real and not a fanciful possibility."

44. It was the third time that the judge had given this direction. We have already referred to the first time he gave it (page 44 of the summing up) when he used the phrase "B or C". He gave it again at page 45 when he used the phrase "B and C". On this third occasion, he reverted to "B or C". The complaint is that the jury may well have thought that it was a direction that if Lam realized that Lo might kill and if Lam and the applicant continued to participate in the robbery and Lo did kill, the applicant would, because of Lam's realization, be guilty of murder. The use of the disjunctive was clearly wrong. There was, however, no evidence to suggest that Lam had ever had any realization that Lo might kill. Further the whole thrust of the summing up was directed towards the realization held by the applicant. We think it fanciful to suggest that the jury might have convicted the applicant, even though it was not established that he had any realization of an intention by Lo to kill, if they thought that Lam, about whose realization there was no evidence, realized that Lo had such an intention. The jury cannot but have been fully aware that the issue before them was the state of mind of the applicant. There is nothing in this ground.

45. Grounds 3 and 4 can be dealt with together.

46. Ground 3 is that the judge failed to direct the jury on the findings of fact by which the applicant may be acquitted of one count of murder. Mr. Ross relies upon the passage, the subject of Ground 1, which we have set out. We have already indicated that the direction that the evidence which was pinpointed by the judge could support a conviction of the murder of the male victim was wrong. Ground 4 is that both convictions were, on all of the matters of which complaint has been made, unsafe and unsatisfactory. There was certainly a misdirection as is indicated above. However, the jury's mind was clearly directed towards what the judge considered was the vital admission by the applicant, i.e. that he had shone the torch on the head of the girl. They were wrongly told that if they accepted this admission, they could be satisfied that the scope of the joint enterprise included both murders. They should have been told that that admission could do no more than establish adherence by the applicant, after the murder of the male victim, to Lo's intention to murder the female victim. Given the judge's direction that that evidence was crucial in establishing the guilt of the applicant, we are satisfied that the jury, when convicting, must have accepted that the applicant had made that admission. We are satisfied, therefore, that there was evidence upon which the jury could have properly have convicted of murder of the female victim and that, following the judge's direction, they must, when convicting, have accepted that evidence.

47. We give leave to appeal. Treating the hearing of the application as the hearing of the appeal, we quash the conviction on Count 2. We dismiss the appeal on Count 3 as we are satisfied that that conviction was both safe and satisfactory.

Representation:

Mr. Chapman, S.A.D.P.P. for the Respondent.

Mr. Phillip Ross instructed by Messrs. Hobson & Ma for the Applicant.