Read the full judgment text of on BabelCite. was delivered on 23 April 1992 before Yang, C.J., Silke, V.-P., & Macdougall, J.A..
Criminal law – murder – robbery – joint enterprise – admissibility of co-accused's statements – failure to give Broadhurst direction on lies – claim of right – hostile witness recalled after perjury arrest – doctrine of recent possession – two victims Lo Kwok-kwan 'Jimmy' and Leung Choi-kuen 'Miss Leung' tied up and stabbed to death at Jimmy's apartment in Kwun Chung Street between late March and early April 1989; flat ransacked of Tudor watch, gold ring, cash and other items – applicants Wai Wing-sang (1st) and Ng Wai-keung 'Ah Keung' (2nd) charged with two counts of murder and one count of robbery – first applicant lived with Jimmy's ex-girlfriend Miss Cheung who wanted back nude photographs – first applicant allegedly told Miss Cheung that he and Ah Keung went with 'Ah Yat' to retrieve photographs and committed robbery and killings; second applicant allegedly confessed to Lau Man-to that he had stabbed both victims – first applicant lied in his police statement about knowing Jimmy's address – second applicant in possession of deceased's Tudor watch 36 hours after killings – whether judge's conflicting directions on admissibility of Miss Cheung's evidence against co-accused were fundamental error – held: error not prejudicial to first applicant but fundamental to second applicant – whether failure to give Broadhurst direction on lies fatal – held: yes, fundamental error and proviso not applicable – whether claim of right available as defence to murder or robbery – held: may be defence to robbery following R. v. Skivington, but cannot apply to murder or non-theft offences – whether recall of hostile witness after perjury arrest improper – held: no, proper exercise of discretion – whether directions on 'doctrine of recent possession' adequate – held: yes, doctrine merely common sense and not essential to Crown case – applications granted, convictions quashed, sentences set aside, retrial ordered on fresh indictment for both counts of murder and count of robbery.
Legal issues: Judge's conflicting directions on admissibility of Miss Cheung's evidence against co-accused · Failure to give Broadhurst direction on lies · Claim of right as defence to robbery and joint enterprise · Recall of hostile witness after arrest for perjury · Adequacy of directions on unreliability of recalled witness · Directing jury on 'doctrine of recent possession'
Outcome: Applications for leave to appeal treated as the hearing of the appeals; appeals allowed; convictions for murder and robbery quashed; sentences set aside; retrial ordered on a fresh indictment for both applicants on two counts of murder and one count of robbery.