R. v. Wai Wing-sang and Another

CACC000276A/1990

Headnote

Non direction on effect of lies: Claim of right where robbery includes murder:  Hostile witness arrested for perjury recalled.

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Coram: Yang, C. J., Silke, V.-P., & Macdougall, J.A.

Dates of Hearing: 18, 19 & 20 March 1992

Date of Judgment: 23 April 1992

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. The two applicants were convicted after trial of two counts of murder and one count of robbery. They now seek leave to appeal against their convictions.

The Evidence

3. The Crown case began with events that took place in March and ended in early April 1989.

4. The deceased named in count one, Lo Kwok kwan "Jimmy" - was a part-time manager of a nightclub, whose duties included that of recruiting personnel for the nightclub such as floor captains and hostesses. He was last seen alive by the club manager Mr. Ng and the club proprietor Mr. Tung between 1.00 a.m. and 2.00 a.m. during the night of the 30th and 31st March 1989. Earlier in the month, on the 11th, Jimmy had introduced the deceased named in count two, Leung Choi kuen, "Miss Leung" to work in the nightclub, and she was last seen alive at the club by the mamasan at about 3.00 a.m. on the 1st April.

5. Miss Leung was married, and was reported by her husband as a missing person on the 5th April, he having last seen her on the morning of the 30th March when she returned home from work. According to the husband, his wife had owned a Tudor watch for some five years. An employee of the King Ngai Jewellery and Watch Company was able to confirm that this same watch had been sold on the 3rd June 1984 as shown in the cash sale receipt which the husband produced in evidence. There was evidence that this watch was in the possession of the 2nd applicant not long after the killing of the two victims.

6. About ten days before his death, Jimmy had borrowed two cameras from a friend, a Mr. Kam. One of the cameras was a Polaroid and the other a Ricoh. The Polaroid was returned a few days later, and Jimmy told him that he had taken some nude photographs of his girlfriend. This girlfriend was a teenage girl called Cheung Sau man (PW7 "Miss Cheung" of whom more later.

7. As Jimmy had failed to contact Mr. Kam, Mr. Kam went up to Jimmy's apartment on the evening of the 6th April to make a check. His knocks on the door and shouts were unanswered, and he detected a foul smell coming from a slit in the door. He became suspicious and reported the matter at the Yaumati Police Station. The police then arrived, forced open the door of the apartment and the bodies of Jimmy and Miss Leung were discovered.

8. The flat appeared to have been ransacked, the drawers were pulled out and things tipped onto the floor.

9. The pathologist who examined the bodies said that they were in a state of moderate decomposition. Jimmy's wrists and ankles were tied with a greyish tie and a white towel respectively, and then tied together with nylon string from behind. His eyes and mouth were covered with adhesive tape. Miss Leung's wrists and ankles were tied together with nylon strong from behind, and her whole face was covered with adhesive tape.

10. Apart from three bruises and a superficial cut wound, Jimmy also suffered three stab wounds : one to the centre front of his neck; one to the left of his threat, completely serving the jugular vein; one to his chest which penetrated the upper lobe of the left lung and the posterior wall of the aorta, severed the adjacent gullet, and penetrated the posterior aspect of the lower part of the upper lobe of the right lung. Death was caused by the stab wounds to the throat.

11. Miss Leung died from a single stab wound to the neck with injury to the right carotid artery.

12. The pathologist estimated the time of death of both deceased at about one week prior to the 6th of April.

13. The trial judge in directing the jury suggested that they might find that the very nature of these wounds and the parts of the bodies on which they were inflicted indicated beyond any doubt that the perpetrator was driven by the intention to kill the two deceased persons. The only issue in the case was the identity of the murderer or murderers.

14. Police enquiries soon focussed on Miss Cheung who had lived with Jimmy for a time. She worked at Jimmy's nightclub where the 1st applicant had come to know her. She left Jimmy and began living with the 1st applicant in mid-February 1989.

15. Miss Cheung recalled one occasion before her break with Jimmy when she had taken some LSD pills and became unconscious. On the following day Jimmy showed her some nude photographs which he had taken of her. Some of these photographs were instant, others were printed.

16. She asked Jimmy for the return of these photographs because she was unhappy at what he had done and did not know what he intended to do with them. Despite his promises to give them to her she never received them.

17. Three or four days after moving in to live with the 1st applicant, Miss Cheung told him about the nude photographs. When he promised to get them for her she gave him Jimmy's address in Kwun Chung Street. Subsequently, he made two unsuccessful attempts to obtain them. There was evidence that, at about 4.00 a.m. on the 21st March, two police constables, PC14071 and PC10463, stopped the 1st applicant, the 2nd applicant and a man called Yu Hing yat in Kwun Chung Street. The constables searched them and allowed them to leave after they had produced their identity cards.

18. We turn now to the evidence which implicated the 1st applicant in the murders and robbery. It consists almost entirely of admissions that he made to Miss Cheung.

19. She testified that on the evening of the 31st March, the 1st applicant went out after telling her he was going to obtain the photographs for her and that she was not to worry but should go to bed. He returned at 6.00 a.m. the next day looking very frightened, and asked her to hug him. When she asked him about the photographs he replied that he could not find them. He then told her that the girl "died of innocence", and that "Ah Yat and Ah Yeung killed the girl and Jimmy." He changed into a pair of pyjama trousers and a T-shirt and asked her to throw away the clothes he had been wearing, namely, a pair of white sports shoes, a long sleeved T-shirt, and a pair of light blue jeans. She put these into a plastic bag and placed it outside the door. They went to bed. A little later she woke up and found that the plastic bag containing the clothes was missing.

20. Upon being questioned by Miss Cheung, the 1st applicant told her that Ah Keung had prepared adhesive tape and two knives and that he, together with Ah Keung and Ah Yat, had laid an ambush at the staircase to Jimmy's apartment. When a woman arrived and was about to open the door the other two men seized hold of her and forced their way into the apartment. Having gained entry, the two men then overpowered Jimmy and tied him up. Miss Cheung said that she gained the impression from the 1st applicant's description to her of what had happened that he had grabbed hold at the woman and had pushed her into a room where she was tied up. He told her that the men had taken away a whist watch, one gold ring, three cards and over $1,000 in cash, that the string used to tie up the victims had been obtained from within the apartment and that after Jimmy had died the woman was killed. He did not tell her how the victims' had been killed.

21. Under cross examination by counsel for the 1st applicant, Miss Cheung conceded that, although she could not remember it, it was possible that at the time when the 1st applicant had hugged her he had said that Ah Keung had gone "mad" or "crazy" and had killed Jimmy and a woman.

22. The double murder was reported in the Chinese press. Later Miss Cheung's father invited her and the 1st applicant to dinner where he showed her a newspaper and told her that the police were looking for her. He advised her to contact the police. Miss Cheung and the 1st applicant then went to the Airport Police Station on the 10th April where Miss Cheung gave a statement to the police while the 1st applicant waited for her. She later admitted that what she had said in this statement was not true, and that she had lied to the police because she was very frightened She explained, "If I told the truth I was afraid I might do Ah Sang (the 1st applicant) harm, but if I did not I felt quite uneasy in my heart."

23. On the 15th April she was again interviewed by the police at the Airport Police Station. She said that on this occasion she told the police about the whole incident. Late in the evening of the same day the 1st applicant called at the Airport Police Station looking for Miss Cheung, and in the early hours of the 16th, was invited by a detective constable, DPC22868, to make a statement, which he did. The 1st applicant was arrested at 2.15 a.m. His statement, Ex.P48, forms the subject matter of the fifth ground of appeal. It contained a number of lies upon which the Crown sought to rely.

24. Later in the afternoon of the 16th the police, with the 1st applicant's assistance, arrested Yu Hing yat, alias Ah Yat or Yat Chai. At 4.00 a.m. on the 17th the and applicant was arrested, and a number of youths who were with him were also detained, one of whom being Lau Man to PW14 "Mr. Lau". Mr. Lau made some statements to the police at the Airport Police Station.

25. The evidence against the 2nd applicant consisted of Mr. Lau's evidence of what the 2nd applicant had told him, and the possession by the 2nd applicant of the Ladies' Tudor watch belonging to Miss Leung.

26. A man named Chan Lik, a fellow employee of the 2nd applicant, testified that on the 2nd of April, the 2nd applicant had telephoned him and asked him to meet him at a noodle stall. There the 2nd applicant asked Chan to pawn a ladies' Tudor watch for him as he, the 2nd applicant was under age. Chan agreed to do so and pawned it for$1,500. This was the watch which belonged to Miss Leung.

27. Mr. Lau, the main prosecution witness against the 2nd applicant, proved to be a difficult witness. He resiled from the statements which he had made to the police on the 17th April and the 6th May. Prosecuting counsel was given leave to treat him as a hostile witness and to cross examine. On being confronted with his statements Lau asserted that they were fabricated by the police who had assaulted and maltreated him.

28. In his statement of the 17th April, Mr. Lau had said that on several occasions in late March the 2nd applicant had told him that he and two others had robbed a man and a woman of a ladies' Tudor watch, a gold ring, a gold bracelet and $1,000 in cash, and that two knives had been used. He said that the 2nd applicant had asked him to go to Jordan Road to retrieve two knives. On another occasion the 2nd applicant had told him that a man and a woman had been killed in the robbery; that it was he, the 2nd applicant, who had stabbed the female deceased in the throat with a knife and had then twisted the knife once; that he had also stabbed the male deceased in the chest with a knife and had punched him on the chest; that he and his companions had taken the property of the two deceased, cleaned the bloodstains off the floor and then departed. When Mr. Lau asked him why he had been so foolish as to kill people for such a small amount of money, the 2nd applicant made no reply.

29. In his statement of the 6th May, Mr. Lau said he had made a mistake in the dates, and that it was not March when the killings had occurred, but the 1st and 2nd of April.

30. After Mr. Lau had concluded his evidence he was promptly arrested for perjury by the police outside the court upon instructions of Counsel then appearing for the Crown. Later the judge granted the prosecution leave to recall Mr. Lau as a witness. Upon recall, he admitted that what he had said in his earlier evidence was not true and said that he had told the truth in the statements which he had made to the police. He explained that he had lied when he first gave evidence in court because he wanted to help the 2nd applicant. He then proceeded to narrate what had happened in line with the statements he had made.

31. The following is an extract from Mr. Lau's evidence, as set out in the summing up, as to what the 2nd applicant had told him:

"They entered the premises and then they tied up their hands and feet. One of them took away the proprieties. The other one told Ah Keung that one of the deceased persons could recognise him and that person asked Ah Keung to kill him or her. That person caught hold of the deceased person and told Ah Keung to kill him or her. Ah Keung at that time did not know what the matter was. Ah Keung asked that person why. That person said that the deceased person could recognise him. So he told Ah Keung to kill the deceased person. Ah Keung then killed the deceased person. As to the other deceased person I do not know how that deceased person was killed nor did he tell me whether that deceased person was a male or a female. He also said that a knife was used to stab him or her throat and chest."

32. When Mr. Lau asked the 2nd applicant why he had been so stupid to do such a thing, the 2nd applicant replied, again as recited in the summing up:

"He said that the other person was acquainted with him or her, therefore that person told him to do that"

The 2nd applicant also told him that after the killings they cleaned up the floor, and "the other person" said to him.

"If you do not kill him or her he or she can identify me. If I implicate you, that would be too bad."

33. Neither applicant gave evidence.

The 1st applicant's Grounds of Appeal

Mr. McCoy, who appeared for the 1st applicant in this court but not in the court below, pursued only three of his original eleven grounds of appeal. These were grounds 2, 5 and 7.

Ground 2, reads :

"The learned judge in summing-up failed to direct the jury adequately, in all the circumstances of the case, that the evidence of PW14 (Lau Man-to) as to what the 2nd applicant told him after the killings was inadmissable against the 1st applicant."

34. The passages in the summing up relevant to this ground are as follows. AT page 8, the judge directed the jury to give separate consideration to the position of each defendant, and told them that what may be evidence against one defendant may not necessarily be evidence against his co-accused.

At page 26, the judge went on :

"Having said that, I will remind you again that each defendant has to be considered separately, just as evidence on each count as it affects the individual defendant has to be considered separately. The prosecution case against D1 relies heavily on what he is alleged to have told CHEUNG Sau-man and likewise against D2 on what he is alleged to have said to LAU Man-to. Whatever a party says is evidence against himself. It is not evidence against any other who may be mentioned by that party. It is for you to decide whether a statement thus made does amount to an admission, having considered the whole statement including any passages that contain qualifications or explanations favourable to the defendant that bear upon the passages relied upon by the prosecution as an admission."

35. During the course of her cross-examination by counsel for the 1st applicant Miss Cheung had conceded that it was possible that, when the 1st applicant had returned home and asked her to hug him, he might have told her, as we have indicated, that Ah Keung had gone "mad" or "crazy" and had killed Jimmy and the woman.

In referring to this evidence the judge said this to the jury:

"While it is not evidence against Ah Keung, I hasten to say, it seems it would apparently coincide with the unembellished version of what D2 himself is alleged to have said to Lau Man-to."

36. Mr. McCoy submitted that, contrary to his earlier "textbook perfect" direction, that whatever a party says is evidence against only himself and is not evidence against any other person who may be mentioned by that party, the judge, by making the observation we have just quoted, had invited the jury to in fact compare what Miss Cheung had conceded the 1st applicant might possibly have told her an to what the 2nd applicant had done at Jimmy's apartment with the evidence from Mr. Lau as to what the 2nd applicant had told him that he had done there.

37. We accept Mr. McCoy's submission that, notwithstanding both his earlier correct direction and his later admonition that evidence from Miss Cheung was not evidence against the 2nd applicant, the judge unfortunately contradicted himself, the effect of which was to invite the jury to compare Miss Cheung's evidence with that of Mr. Lau on this issue.

38. However, we do not think that this error operated to the 1st applicant's prejudice. Its only effect as far as he was concerned would have been to lend weight to the possibility that he might have told Miss Cheung that the 2nd applicant had gone "mad" or "crazy" and killed the two deceased, thus bolstering the contention, made on the 1st applicant's behalf to the jury, that the killings were the result of a sudden aberration on the part of the 2nd applicant which he, the 1st applicant, had not foreseen as a possible consequence of the joint venture.

39. The same cannot be said in respect of the 2nd applicant. The jury could only have been confused by the judge's observation. On the one hand they had been categorically told that what the 1st applicant might have told Miss Cheung about the 2nd applicant having killed the two victims was not evidence against the 2nd applicant; yet, on the other hand, they were invited to have regard to the congruence of Miss Cheung's hearsay evidence with that which Mr. Lau said as to the 2nd applicant's confession to him.

40. What the jury would have made of this it is impossible to say. However, we think that it is very likely that they followed the natural but forbidden path and compared the two pieces of evidence. The consequence of this could only have been to the detriment of the 2nd applicant. We shall return to this aspect later when we consider his application.

41. Next: ground 5. It reads as follows:

"The learned trial judge failed to direct the jury on their approach to the 1st applicant's lies in the statement (Ex P. 48), when such direction was necessary in view of the prosecution's reliance upon such lies in the circumstances of the case."

The Crown placed particular emphasis on these "lies" in its opening, counsel saying :

".... I am going to ask you to find as a fact that the first accused told those lies to the police out of a consciousness of guilt. Because he knew he was involved he deliberately told the police lies to try and distance himself from the killings."

42. Later, in closing, he said this:

"The further thing of course is when he is (sic) interviewed by the police - you know that statement (Exbt P.48), you have got it in front of you - he told the police officer a straight out series of lies."

43. In his summing up, the judge said this:

"The Crown relied also on the submission that the first defendant lied in his statement to the police which was a denial of knowing the residential address of Jimmy or ever going to there.

and no more.

44. Mr. McCoy submitted that since the Crown had made the 1st applicant's lies such an important issue in the case and the judge, by making reference to them, had suggested that they were of significance, it was essential that he should have gone on to give a direction along the lines suggested by Lord Devlin in Broadhurst v. R. [1964] AC 441 at 457:

"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness. This is the sort of direction which it is at least desirable to give to a jury."

45. Mr. Bruce, counsel for the Crown, with the fairness, we have come to expect from him, agreed that this was a case in which the judge ought to have given a Broadhurst direction. He submitted, however, that in the light of the "uncontested evidence" of Miss Cheung and the fact that the lies were so manifest, no injustice was done and the proviso should be applied.

46. With the greatest of respect to the judge, whose task in summing up was far from easy, we are of the view that because of the weight which the Crown sought to attach to the lies of the 1st applicant, this was a case in which a Broadhurst direction was essential.

47. In order to find the 1st applicant quilty of murder the jury had to be sure that he was party to a joint enterprise to kill or that he foresaw that one or other of his companions might use a knife to kill Jimmy or anyone else who happened to be present. The account which the 1st applicant gave to Miss Cheung of what happened at the apartment did not amount to an admission that he had participated in the killings or that he had actually foreseen that a knife might be used to kill someone. There was, however, sufficient evidence from which the jury could have properly concluded that he had the necessary mens rea for murder.

48. The evidence that the 1st applicant had admitted that he knew that his two companions were armed with knives and adhesive tape, that both victims had been stabbed to death while bound and helpless, that Jimmy, against whom the 1st applicant harboured a sense of grievance, suffered multiple stab wounds, and that valuables had been stolen from the apartment, did not lie easily with the 1st applicant's avowed purpose of going there merely to obtain the photographs.

49. The fact that the 1st applicant had lied to the police was therefore a matter which may well have greatly influenced the jury in deciding what weight, if any, they should give his exculpatory assertion to Miss Cheung that Ah Keung had gone "mad" or "crazy" and had killed Jimmy and Miss Leung. While it is true that the jury would have been entitled to give much less weight to the exculpatory than to the inculpatory parts of the account of the incident which the 1st applicant gave to Miss Cheung, there was a danger that, unless they were directed as to the proper use they could make of lies, they might have thought that the telling of lies was consistent only with guilt. If so, they might then have dismissed out of hand the 1st applicant's assertion to Miss Cheung that he was not responsible for the killings.

50. The lack of the necessary direction was fundamental. We have come to the conclusion that this would not be a proper case for the application of the proviso.

51. Before turning to the submissions made on behalf of the 2nd applicant we think we should briefly refer to ground 7 of the 1st applicant's grounds which is :

"The learned judge erred in law in never leaving to the jury the fact that the 1st applicant's intention was to obtain the return of the photographs, and that he was entitled to assert a claim of right, and lacked the mens rea for robbery, or for an unlawful joint enterprise. Further the judge never directed the jury that there was no evidence that the 1st applicant intended to take anything from the flat other than the photographs."

52. Mr. McCoy submitted that there was evidence suggesting that the 1st applicant believed that he had a right, on behalf of either himself or of Miss Cheung, to deprive Jimmy of the photographs. If this might reasonably have been true, his intention to appropriate the photographs could not, in the light of section 3 of the Theft Ordinance Cap. 210, have been regarded as dishonest. Consequently, since theft is an element of robbery, he could not be guilty of robbery.

53. In support of this ground Mr. McCoy cited R. v. Skivington [1968]1 QB 166. Lord Parker, in delivering the judgment of the English Court of Appeal said as at p. 170:

"It is quite clear, and it is sufficient only to mention Rex v Bernhard, [ [1938]2 K.B. 264] that a Claim of right exists whenever a man honestly believes that he has a lawful claim, even though if may be completely unfounded in law or in fact. The question is whether that defence to larceny applies equally when the offence with which one is concerned is really an aggravated larceny such as in this case, robbery, or whether the honest belief must extend to being entitled to take the money by force.

In the opinion of the court, both on principle and upon the case, it is clear that it can be a defence ......"

54. We note that in Skivington the appellant gave evidence to the effect that he had his wife's written authority to collect her wages, and that he has also claimed his wages which he believed had accrued due. The wages were the subject of the charge of robbery with aggravation.

55. The applicant here, as we have indicated, gave no evidence.

56. Lord Parker went on at p.171:

"In the opinion of this court this matter is plain, namely, that a claim of right is a defence to robbery or any aggravated form of robbery, and that it is unnecessary for the defendant to show that he had an honest belief not only that he was entitled to take the money but also that he was entitled to take it in the way that he did."

57. While we accept that a raised claim of right - and there was none here - may well be a defence to a charge of theft or robbery we do not agree that it can be an answer to a charge of murder or to any offence of which theft is not an element. In the light of the conclusinos we have come to in the 1st applicant's appeal we do not think this point to need further consideration.

The 2nd applicant's Grounds of Appeal

58. Mr. Poll, who appeared for the 2nd applicant in this court but not in the court below, advanced five grounds of appeal.

59. For the sake of convenience we shall deal with the first two grounds together. They may be summarised as follows:

1. ".... the judge erred in law or alternatively wrongly exercised his discretion, or alternatively there was a material irregularity in that he allowed the Crown to recall the witness Lau Man-to" and

2. ".... the judge erred in law in that he failed to direct the jury that the evidence of Lau Man-to was unreliable and that the effect of his evidence was negligible or alternatively that little weight should be given [to his evidence]."

60. Mr. Poll placed reliance on R. v. Kellett (1975) 61 Cr. App. R. 240. The relevant part of the headnote reads:

"A threat or a promise to a witness, if made with the intention of persuading him to alter or withhold evidence, amounts to an attempt to pervert the course of justice, whether or not what was threatened or promised was otherwise a lawful act and whether or not the defendant had any other intention. The prosecution are under no obligation to prove that the threat was empty or not bona fide. It is immaterial whether the defendant really intended to do the act threatened if the evidence was not altered or withheld."

61. That case has no direct applicability to the situation with which we are now concerned for no one was charged with attempting to pervert the course of justice in the court below. However, Mr. Poll's contention appeared to be that the police, with the intention of persuading Mr. Lau to alter his evidence, had perverted the course of justice, and that the judge should not have permitted the prosecution to recall a witness where his recall had been brought about by means of a crime. This argument, however, begs the question. It is founded on the assumption that by arresting Mr. Lau on the basis that he had committed perjury, the police had thereby threatened him and with the intention of persuading him to alter his evidence.

62. At the conclusion of lengthy submissions the judge gave a ruling in which he considered all relevant factors. In our view he properly exercised his discretion to permit Mr. Lau to be recalled. The mere fact that the police had arrested Mr. Lau after he had given evidence did not debar him from being recalled as a witness.

63. The credibility of a witness is a matter which a jury is pre-eminently equipped to determine. We can think of no good reason why the judge should not have permitted them to hear the further evidence and decide what weight, if any, they should attach to it in the light of all the circumstances. When in his summing up the judge came to Mr. Lau's evidence he dealt with it in considerable detail, making sure the jury was aware of all those circumstances, and told the jury that they were free to accept or reject it. There was no further burden on him to direct them that it was unreliable or that its effect was negligible.

64. Ground 3 reads as follows:

"The learned trial judge in summing-up failed to direct the jury adequately, in all the circumstances of the case, that the evidence of PW7 (Cheung Sau-man) as to what the 1st applicant told him after the killings was inadmissible against the 2nd applicant."

65. When dealing with ground 2 of the 1st applicant's grounds we stated that, notwithstanding the judge's direction to the jury that Miss Cheung's evidence was not evidence against the 2nd applicant, he in fact invited them to consider that her evidence - that the 1st applicant had told her that the 2nd applicant had gone "mad" or "crazy" and had killed Jimmy and Miss Leung - coincided with that which Mr. Lau had said that the 2nd applicant had told him. The almost inevitable effect of this, as we have already observed, would have been to reinforce Mr. Lau's testimony as to the 2nd applicant's admissions to him that he had killed both victims. This unfortunate error was fundamental.

66. The 4th and 5th grounds read as follows:

4. "The learned trial judge erred in law in that he directed the jury as follows: 'This doctrine of recent possession is one of fact and applies to all crimes. If you find that this doctrine of recent possession of the female deceased's watch applies then you may go on to find that it puts the 2nd defendant (the applicant) at the scene.' "

5. "The learned trial judge erred in law in that he failed to direct the jury that the so called 'doctrine of recent possession' was no more than evidence of fact from which a reasonable inference could be drawn but that such an inference must be one that no reasonable man could fail to draw from the direct facts proved and must not amount to mere speculation or guesswork."

67. The prosecution and the judge referred to the so-called doctrine of recent possession in respect of the 2nd applicant's possession of Miss Leung's Tudor watch 36 hours after the killing. The prosecution contended that his possession of that watch supported Mr. Lau's testimony regarding his confession to him that he had taken a watch in a robbery committed with two other men in the course of which he had killed two persons.

68. The so called doctrine is nothing more than the application of common sense. In our view the judge was correct in telling the jury that, if they were to find that the 2nd applicant was in possession of the watch shortly after the commission of the robbery, this was evidence which could assist them in finding that he was at the scene of the robbery. The Crown was not relying solely on the 2nd applicant's possession of the watch to convict him of robbery. The real significance of the possession of the watch was that it lent support to Mr. Lau's testimony that the 2nd applicant had confessed to him that he had participated in the robbery and the killings. In the light of the way in which the Crown case was presented we do not considered it to have been necessary to rely on the so-called doctrine at all. Nothing in our view turns on the directions given.

69. It only remains for us to consider the applications for leave to appeal against the convictions for robbery. We find it difficult to escape the conclusion that the outcome of these applications must be the same as those for the murder convictions. In the case of the 1st applicant the risk that the jury might well have thought that the telling of lies was consistent only with guilt existed to no lesser degree on the robbery count than it did on the murder counts.

70. Similarly, the judge's invitation to the jury to compare part of Miss Cheung's evidence with that of Mr. Lau was just as likely to reinforce Mr. Lau's credibility on the robbery count as it on the murder counts. We cannot say for certain that the jury would have found the 2nd applicant guilty on any of the counts had it not been for what they might well have thought to be evidence capable of confirming Mr. Lau's testimony.

71. We therefore grant the applications of both applicants in respect of their convictions for murder and for robbery and, treating the applications as the hearing of the appeals, allow the appeals, quash the convictions and set aside the sentences. This is clearly a case where an order for retrial should be made. We order that both appellants be retried on a fresh indictment in respect of the two counts of murder and the count of robbery.

Representation:

Mr. A.A. Bruce for Crown/Respondent

Mr. G.J.X. McCoy & Mr. A King (M/s Massie & Co.) for 1st Applicant

Mr. Michael Poll (DLA) for 2nd Applicant