HKSAR v. Yue Wai Fat

CACC000299/1999

CACC 299/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 299 OF 1999

(ON APPEAL FROM HCCC 303 OF 1998)

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Coram: Hon Stuart-Moore VP, Mayo VP and Wong JA

Dates of Hearing: 8 May & 12 June 2001

Date of Judgment: 7 July 2001

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1.On 14 May 1999, following a trial before Stock J (as he then was) and a jury, the Applicant was convicted on five counts. Counts 1 and 2 related to the murder and robbery, respectively, of the same victim. Counts 3 and 4 alleged the wounding with intent of two separate victims and on each of these the Applicant was convicted of the less serious alternative charge of unlawful wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212. On count 5, the Applicant was convicted under section 17 of that Ordinance of wounding another victim with intent.

2.The Applicant now seeks leave to appeal against conviction on all counts.

3.The broad basis on which the case was presented against the Applicant was not in dispute. On 20 March 1998, at about 4.00 p.m., two sisters named Chou Tai-chuan and Chou Tai-ting went to visit their mother, Chou Su Pao-chun, at Riveria Mansion in Paterson Street, Causeway Bay. They were followed into the building and then into the lift by two men. A third man, Wong Pui-kwan, who was staying in one of the apartments in the block, also got into the lift. When the lift reached the third floor, the two men who had been together produced knives and one of them announced their intention to rob. There then followed inside the lift, and later outside the lift, a series of acts which resulted in the wounding of the three lawful visitors to the building. The mother of the two sisters also came onto the scene and she was then also wounded.

4.Before the two robbers made their escape, one of them prised the diamond out of the ring being worn by Chou Tai-chuan (the deceased). Shortly afterwards, she died from a stab wound to her heart. This was one of nine wounds she received from the killer's blade, two of which were deep.

Issues at trial

5.The issues at trial were encapsulated by the judge early in his summing up when he told the jury that they had to decide firstly whether it had been proved that the Applicant was one of the two robbers. If this was established, they had, secondly, to decide whether the Applicant committed the act which caused the deceased to die with the intent which is required for murder. Likewise, on the remaining counts, the jury had to consider the issue of intent.

6.So far as this application is concerned, the directions as to intent are not criticised and we need say no more about that aspect of the case.

Prosecution's case

7.The prosecution adduced evidence of an identification of the Applicant by the surviving sister who, having looked through more than a thousand photographs kept in police records, then fainted when she saw and identified him in one of the pictures. The Applicant was then arrested and placed on an identification parade where the mother of the deceased was able to identify him as the man who had wounded her when she tried to rescue her daughter (the deceased) from attack by the Applicant. In due course, both these witnesses gave evidence that they had been able to see the Applicant's face clearly during the events they described.

8.In addition to this, following an initial denial of any involvement in his first video-recorded interview, the Applicant allegedly made a full confession of his guilt to the investigating officer. This confession was later confirmed in a second video-recorded interview. There was no other evidence to connect the Applicant to the scene of the crime.

Defence case

9.The Applicant, who chose to give evidence, testified that he had been at home on his own at the material time. The defence advanced on his behalf was that the identifications made by the two female witnesses were unreliable. So far as his confession was concerned, this was alleged to have been concocted by police officers who, following sustained assaults on the Applicant, were ultimately able to "coach" him into providing, in front of a camera and a senior officer, the answers he gave in the second video-recorded interview.

Grounds of appeal

10.Mr Haynes, who did not appear in the court below, has advanced on the Applicant's behalf seven grounds in his perfected grounds of appeal.

Grounds 1 and 2: Admissibility of the confession evidence

11.In grounds 1 and 2, Mr Haynes submitted that the judge had erred when he allowed the prosecution to adduce evidence of the second video-taped interview, the English translation of which was produced as Exhibit 6b. He submitted that aside from the Applicant's allegations of mistreatment, the whole form of the interview was oppressive. Further, he submitted that the ruling given by the judge did not state "any intermediate findings of fact or give any reasons beyond repeating that all was voluntary".

12.The background to the second video-recorded interview, about which complaint is made, was straightforward. The Applicant had been arrested during the early hours of 22 March 1998, little more than a full day after the offences were committed. He was taken to a police station and interviewed in the video interview suite where he denied any involvement in the offences and provided details of his whereabouts at the relevant time.

13.On 23 March 1998, during the afternoon, the Applicant was identified as one of the participants by the deceased's mother when she attended a formal identification parade. A number of other parades were also conducted where other witnesses either picked out actors on the parade or made no identification at all.

14.At 8.20 p.m. on the same day, the Applicant spoke to a sergeant investigating the case, allegedly saying to him after the caution had been administered: "This case was done by me". The Applicant was asked why he had not admitted his involvement before and he allegedly explained that it was because he had just been identified. He also named his accomplice as Tam Man-fai. The sergeant noted these admissions in writing and then interviewed the Applicant in circumstances which give rise to complaint. He was firstly spoken to by the sergeant in "Room 101A" about his role in the offences before being taken, at 1.07 a.m. on 24 March 1998, to the video interview suite so that the Applicant could confirm, in the presence of a Detective Senior Inspector, what he was said to have admitted earlier to the sergeant. The interview largely took the form of the sergeant reading out his written notes (which were not exhibited at trial) of what he had recorded the Applicant as saying in Room 101A, and asking for confirmation that he had correctly understood the Applicant. The Applicant confirmed his earlier admissions.

15.At trial, defence counsel submitted that the oral admission to the effect that "the case was done by (him)" should not be admitted into evidence as it was unworthy of belief. In relation to the second video-recorded interview (Exhibit 6b), it was submitted by trial counsel that it had been conducted in an "irregular" manner which was "not very fair". Mr Haynes complained that this was something of an understatement and he contended that there had been serious breaches of Rule V of the Rules and Directions for the Questioning of Suspects and the Taking of Statements (the Rules and Directions for Questioning Suspects). These breaches, he contended, which had occurred during the interview in Room 101A, tainted the subsequent interview, Exhibit 6b.

16.As far as Exhibit 6b was concerned, Mr Haynes complained that the sergeant's method of gaining the Applicant's agreement to his notes of interview was oppressive. This could hardly be called an "interview", he submitted, when the sergeant had effectively read over his notes to the Applicant merely seeking his agreement to them. Short of calling the sergeant a liar, it was suggested that the Applicant had been put in a position where he more or less had to agree with what was being put to him.

17.In this context, we were shown parts of the second video-recorded interview. On a superficial view, there was not in our judgment the remotest sign of any oppression. No doubt the trial judge formed the same impression.

18.However, it was Mr Haynes' further contention that defence counsel had never raised, as a matter of any concern, the breaches of the Rules and Directions for Questioning Suspects. Rule V states, amongst other things, that a contemporaneous written record must be made of any interview in a police station which:

"must immediately after completion be read over to the suspect, and he should be given the opportunity to read it. The suspect must also be given an opportunity to make any corrections, alterations or additions he wishes to the record, and afterwards he should be invited to write and sign ...."

19.It was agreed at trial that the Applicant had not been given an immediate opportunity to comment on the sergeant's notes of interview. Indeed, following the interview in Room 101A, the police had immediately gone on a search for further evidence in order to follow up the admissions made by the Applicant as quickly as possible. It was only when the police returned, having met with no success in their quest to find new evidence, that the Applicant was taken into the video interview suite for his second video-recorded interview.

20.The judge, in the course of a detailed ruling, admitted the evidence of this interview and the initial oral confession, having found that all the Applicant's answers had been given voluntarily. He described the style of the interview in Exhibit 6b, as having been "unusual" but not unfair.

21.Mr Saw, SC, on behalf of the Respondent, pointed out that the "unusual" format of the interview may have been accounted for to some extent because neither of the officers present at the interview, according to their evidence, was experienced in conducting video-recorded interviews. However, if this was so, Mr Haynes was able to make the point that the officers appeared to have been conversant with the procedure having only the previous day followed the correct procedure when the Applicant had denied involvement in the offences.

22.It was not without interest, as Mr Saw was able to demonstrate, that on no less than ten occasions the Applicant was reminded he was under no obligation to answer questions. This excessive use of the caution was, in itself, a highly unusual and wholly unnecessary procedure aside from the matters which the defence had been suggesting were unfair.

23.We reject Mr Haynes' submission that there was a failure on the part of the judge to focus on what he called the "crucial question", namely, whether the Applicant's sudden confession, following his initial denials, had occurred in the way the sergeant had described. The judge was concerned during the voir dire with the voluntariness of the Applicant's answers and, in resolving this issue, he was satisfied that the truth about what had taken place was to be found in the sergeant's testimony. The voluntariness of the Applicant's confession was the crucial issue to be determined and, in deciding it, we consider that the judge had addressed the relevant issues.

24.Whilst we do not seek to give any encouragement to police to conduct interviews in the manner adopted in the present case when the Applicant was taken to Room 101A instead of the room designed for video-recorded interviews, it is plain that the sergeant was trying, when he later took the Applicant into the video interview suite, to give the Applicant the same opportunity to correct anything he had noted which the Applicant would have had under Rule V of the Rules and Directions for Questioning Suspects (formulated long before video-recorded interviews became a standard procedure).

25.It may well be that a number of breaches of Rule V were never specifically addressed by trial counsel as a ground for excluding the confession evidence. This, however, is largely beside the point. As we have said already, the issue to be decided by the judge concerned the voluntariness of the Applicant's confession. The principles to be applied in such a situation were considered by the Court of Final Appeal in Secretary for Justice v Lam Tat-ming and Another [2000] 2 HKLRD 431 where at 439 Li CJ said:

"The prosecution must establish that the statement made is a voluntary statement in the sense that it has not been obtained from the accused either by fear of prejudice or hope of advantage excited or held out by a person in authority or by oppression. See Ibrahim v R [1914] AC 599 at p. 609; DPP v Ping Lin [1976] AC 574 at pp. 597G-598A, 600D-F, where Lord Hailsham read the word 'exercised' in Lord Sumner's classic test in Ibrahim v R to mean 'excited' and also added oppression to that test; R v Lam Yip-ying [1984] HKLR 419. Oppression in this context is conduct by a person in authority which tends to sap and does sap the will of the accused so that he makes the statement. See R v Prager ( No. 2) [1972] 1 WLR 260; Li Wai-fat & Others v R [1977] HKLR 531.

Further, a statement signed by the accused as a result of a fraudulent misrepresentation made by a person in authority as to the character of the document is involuntary. See Ajodha v Trinidad and Tobago [1982] AC 204 at p. 221F-G where a police officer had falsely informed the accused that he was signing a document of an entirely different character from that which he did sign."

26.The Court went on to consider the residual discretion to exclude otherwise admissible evidence and at p. 440 Li CJ said:

"The judge has the overriding duty to ensure a fair trial for the accused according to law. For this purpose, he has what should be regarded as a single discretion to exclude admissible evidence, including a voluntary confession, whenever he considers it necessary to secure a fair trial for the accused. The essential question is not whether the law enforcement agency has acted unfairly in a general sense. It is no part of the court's function to exercise disciplinary powers over the law enforcement agencies or the prosecution as regards the way in which evidence they seek to adduce at trial was obtained by them. See R v Sang [1980] AC at p. 436G (Lord Diplock); R v Cheung Ka-fai & Another [1995] 2 HKCLR 184 at p. 195 line 40 (Litton V-P). The court's function is to consider whether it would be unfair to the accused to use the confession though voluntary against him at his trial. "

27.We have been unable to see how, in the particular circumstances of this case and on the assumption that the police had breached Rule V, the use of the confession evidence could be described as unfair. It may very well be that experienced counsel who conducted the defence at trial took precisely the same view and chose not to adopt the line of argument Mr Haynes has pursued. Whether or not this is so, we can see no reason for any criticism of the judge's decision to admit this evidence.

28.In the course of his argument on these grounds, Mr Haynes also submitted that the judge was to be criticised for his "excessive interventions". These criticisms do not need to be dignified by any detailed consideration. They were wholly without merit and should never have been raised.

29.Grounds 1 and 2 fail.

Grounds 3 and 4: Evidence of identification

30.It was submitted by Mr Haynes in his 3rd and 4th grounds of appeal that the judge should have refused to allow evidence of identification to be given by the two prosecution witnesses who had, in different ways, identified the Applicant as one of the guilty culprits. This evidence, he argued, should have been excluded because of failures by the police to follow normal identification procedures. Mr Haynes also complained that, having allowed the evidence to be adduced, the judge gave directions which either failed to highlight the evidence which had weakened the identifications or failed to summarise the discrepancies between the prosecution witnesses as to the events at the identification parade where the Applicant was picked out by the deceased's mother.

31.The first identifying witness was, as we said earlier, the deceased's sister who had seen over a thousand photographs in police records before she set eyes on the face of the Applicant and passed out. The judge permitted this evidence to be adduced in the face of objection from the defence who complained, as Mr Haynes has done in these proceedings, that the photographic identification was not accompanied by a later attendance by this witness at an identification parade. Mr Haynes submitted that this was plainly in breach of guidelines which recommend that this should "normally" be done unless it is "unnecessary or impracticable for some reason".

32.All that we need to say in this respect is that there is no mandatory requirement in such circumstances for a formal identification parade to take place. Mr Haynes' suggestion that a failure to hold a parade for this witness should render her photographic identification inadmissible is contrary to authority. In R v Maynard (1979) 69 Cr App R 309 at 315, Roskill LJ made the following observations:

"It is obvious that an identification by photograph not followed by an identification parade may be a very weak identification. It can also be said, of course, that notwithstanding the recent amendment of the Home Office Circular, on Identification Parades, an identification by photograph followed by an identification parade may be unreliable, since the person asked to identify the suspect may well, consciously or subconsciously, be influenced by having seen the photograph rather than by anything which he recalls having seen at the material time."

33.The court went on to confirm the admissibility of identification by photograph where this had not been followed by an identification parade. Plainly, the judge was right to have allowed this evidence to be introduced and the quality and weight of the evidence was for the jury to determine.

34.In the present case, the judge's discretion to prohibit the prosecution from putting the evidence of identification by photograph was limited to a situation where the evidence was inherently weak. However, this could hardly have been an apt description where the witness had made an identification from over 1,000 photographs a few hours after the offences had been committed and had been in a good position to recognise the killer.

35.The second identifying witness was the deceased's mother who was accompanied by her son when she attended an identification parade on 23 March 1998. She picked out the Applicant by identifying him at position '4' on the parade. She spoke softly and was asked to confirm what she had said by viewing the line-up once more. Again she identified the Applicant.

36.One of the points made by Mr Haynes was that because another six witnesses were unable to identify the Applicant as one of the culprits, "the overall result of the identification parades tended to show that the Applicant was not one of the assailants". However, the judge dealt with this point when summing up to the jury. He said:

"The defence say these are all people who saw the robbers and were able to give descriptions of them to the police and if they could not recognise the defendant how can you safely rely on the identification of the deceased's mother and of the sister of the deceased who picked out the photograph from a thousand other photographs she was shown?

The prosecution, on the other hand, say there are two cardinal factors which distinguish the evidence of the two groups. The first is that the two relatives of the deceased were themselves at the robbery, engaged as it were with the robbers themselves, and other than Mr. Wong Pui-kwan, none of the others was present at the robbery itself. The second distinction is that, of all of the witnesses, the two who had the best opportunity, they say, of seeing the robbers and the longest opportunity were the two women. In all the other cases, save in the case of Mr Wong and the watchman Mr Tse, what the witnesses saw were two fleeing men." (Tr. p. 60J-T)

37.Mr Haynes sought to make out that the two witnesses who identified the Applicant had done so in circumstances which could properly be described as a "fleeting glimpse" situation. We disagree with this submission. The evidence showed that the deceased's sister had been in the Applicant's company at close quarters for some minutes. It is particularly difficult to see in this example how Mr Haynes' description could possibly be appropriate. The deceased's mother, it is true, only saw the Applicant for a short time but the circumstances in which she did so gave excellent lighting conditions in which to identify him. For a time, she had been face to face with her daughter's killer at very close quarters. There was no possible basis, in our judgment, for excluding the evidence of either witness on the grounds, as Mr Haynes suggested, of inherent weakness. Experienced trial counsel never, in fact, made such an application and although Mr Haynes has poured criticism on the Applicant's counsel at trial, falling short of alleging flagrant incompetency, we have not been able to detect that he had failed in his duty at all.

38.Mr Haynes went on to complain that the deceased's elderly mother had been able to speak to her son during the identification parade. This criticism is to some degree merited except that it is apparent that no prejudice was caused to the Applicant who was, in any event, legally represented at the parade. The legal representative took no objection to this minor irregularity. Indeed, the background to her son's attendance was explained by her when she was asked in cross-examination by defence counsel if she had talked to her son about what might happen at the identification parade. She replied:

"Before I actually attended the parade, my son said this to me, 'Mummy, the police have arrested somebody. We don't know whether that was him or not. Take your time, look at the line carefully, if that was the one, tell the police, otherwise, you should not identify anybody at random.' Then I viewed the line-up. With only one look, I could identify the robber. At the time of my identification of the robber, I was very agitated." (Tr. p. 382)

This passage was largely incorporated in the summing up at page 57 of the transcript, accompanied by several other pages setting out some of the weaknesses in the identification evidence and the caution with which it should be approached.

39.We are satisfied that the identification evidence was properly before the jury and that the judge fully and fairly dealt with all the material evidence in the course of summarising this evidence to the jury.

40.Grounds 3 and 4 fail.

Ground 5: Evidence of the Applicant's bad character

41.In ground 5, it was submitted that the prosecution were wrongly permitted to cross-examine the Applicant about his previous criminal record. It was contended that this evidence was more prejudicial than probative.

42.The evidence about the Applicant's character had been introduced because the protection afforded to the Applicant by virtue of section 54(1)(f) of the Criminal Procedure Ordinance, Cap. 221, had been forfeited by reason of the allegations advanced by his counsel against the police, and later, by the Applicant himself when he gave evidence.

43.The provisions of section 54(1)(f)(ii) are as follows:

"(f) a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless-

.....

(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution ;...."

44.The Applicant's previous offences involved dishonesty. The prosecution confined their application to the last two recorded offences, both of which were related to burglary. Defence counsel at trial very properly conceded that the authorities were against him when he attempted to persuade the judge that he should exercise his discretion in favour of the Applicant by refusing to permit cross-examination as to character. In making his ruling, the judge had this to say:

"The protection afforded by section 54(1)(f) of the Criminal Procedure Ordinance may be lost if the nature and conduct of the defence is such as to involve an imputation on the character of the prosecutor or the witnesses for the prosecution. In this case, there is no question but that the defendant has mounted an attack which at every turn has constituted an imputation contrary to the character of some of the prosecution witnesses.

The attack has been against the character of Detective Sergeant Kung, who interviewed the defendant, and also against Senior Inspector Lam, as he was at the time, and Senior Inspector Chua. Now, this attack has been prolonged and it has been sustained through hours of cross-examination, not only in its content but also in its manner. I was aware of the likely extent of the attack before it began and its importance in this case, which is why I decided to give the warning which I did about the danger that by it the defendant might expose himself to cross-examination.

It is suggested by Mr Forrest in his recent submissions to me that had I not given an intimation of that kind, that Mr Arthur, on behalf of the prosecution, would likely not have made this application. To that I have two comments: first, that the law requires me to give a warning of that kind whether or not I anticipate an application by the prosecutor; and, secondly, that I would have been somewhat surprised in this case had this application not been made.

The nature of the defence is that the police beat up the defendant, and, in addition, rehearsed him in a false story which they concocted with the advantage of the information to hand about the actual robbery. It is said that they threatened him and roughed him up; that they placed a hood over his head; that they were especially careful to make sure that areas where he was hit would not reveal themselves in marks on any viewing of the videotape; that they tutored and coached him with the false story, and that the reason it was known the defendant would not on tape retract his confession was that the police would in such an event beat him up again; that they forced him to invent a name of the accomplice; that the visits to Tai Kok Tsui and the search for the diamond and for the knives in the water was all an elaborate sham by the police.

The cross-examination was an attack on the honesty of police officers as strong as one is ever likely to encounter. This lengthy cross-examination was redolent throughout with a constant tone of incredulity and disbelief and suspicion, and a constant theme of improper purpose underscored with side comments such as that police are known occasionally to behave in this jurisdiction and others with impropriety. And in examination-in-chief of this particular defendant, we have also had comments about him being chained, still chained, still hooded, and the defendant in his evidence-in-chief has repeated the allegations against the police officers which were raised against them in cross-examination.

In other words, we have now had several days of evidence almost uninterrupted directed solely at allegations of impropriety, gross impropriety, and dishonesty by these police officers. The allegations of impropriety are sought to be rammed home with the fact that no diamond was found, no clothes were found and no knife was found.

In evidence-in-chief, the defendant has told the jury that he has lived at home with his parents and at the time of the offence he was regularly giving money to his family.

I am conscious of the risks which can arise from the admission of evidence of bad character. That said, the evidence of the police is central to this case and the attack on the police is central to this case. The jury's assessment of these allegations of dishonesty by the police, of this suggested attempt by them to pervert justice is at the very core of this case, and in my judgment, to deprive the jury of evidence about the character of the man who is making these allegations about the police would be to provide the jury with a wholly distorted armoury with which to judge a central issue in this case.

Now, it may be that armed with this evidence of the defendant's character they will nonetheless have doubts about the police evidence, but at least that then would be a decision taken when presented with a balanced picture. Without this evidence, the picture would be unbalanced to a serious degree and the process would be rendered again, whereby the concept of fairness was one directed only with the defendant's interests in mind, ignoring the interests of a fair trial as a whole.

I have no doubt at all in this case that the defendant has lost the shield provided by section 54(1)(f), and in my judgment, the interests of justice in this case actually require that the prosecution be permitted to cross-examine the defendant and to pose in that cross-examination questions which may show that he's been convicted of other offences ........" (Tr. pp. 430-432)

45.This was entirely a matter for the judge, in the proper exercise of his discretion, to resolve. None of the arguments put forward by Mr Haynes have come anywhere near establishing that the trial judge failed to exercise his discretion in a proper way. Furthermore, in giving directions to the jury later in his summing up, which we notice have not been criticised, the jury was fully and fairly directed as to their approach to the evidence about the Applicant's previous bad character. In particular, the judge said:

"In this trial, the fact that the defendant has previously been convicted has been given in evidence for a limited reason and it is this: he has attacked the character of police officers by suggesting that they beat him and threatened him and made him say untrue things and coached him and that they have conducted a charade in their eagerness to see him saddled with these offences." (Tr. p. 22)

Later, the judge went on to say:

"It is extremely important that you do not assume that the defendant is guilty of these offences or any of them or that he is not telling the truth because he has previous convictions. His convictions are not at all relevant to the likelihood of his having committed these offences or any of them. Indeed, you will wish to note that none of his previous convictions involved violence and it might, therefore, be said in his favour that he is a man whose history might suggest he is a person not given to violence." (Tr. p. 23)

46.Finally, in regard to this ground, Mr Haynes complained that no evidence had been adduced as to how the Applicant had pleaded to his earlier offences. However if the Applicant's counsel had chosen to ask any questions about this, he could have done so. He chose not to do so.

47.This ground fails.

Ground 6: Balance of the summing up

48.In ground 6, Mr Haynes contended that the trial judge's comments throughout the trial had a tendency to criticise points which had been made by the defence whilst finding excuses for the shortcomings of the police. This, he submitted, was also reflected in the summing up which he described as giving the appearance of unfairness to the defence. Mr Haynes complained in particular about a number of what he called "unwarranted interruptions" during the 4-day voir dire and to three such interruptions during the trial itself which lasted about seven further days.

49.We have already made some reference to this aspect when considering grounds 1 and 2. We do not propose to examine any of the passages to which we were referred as they revealed no merit whatever. Not only were the criticisms without any foundation, they were made, in our opinion, in flagrant disregard of the Practice Direction relating to Criminal Appeals to the Court of Appeal. Para. 5(a) reads:

"Where solicitor or counsel settles grounds of appeal, it is his duty to ensure that -

(a)	(i)	grounds are only put forward where he has satisfied himself that they are arguable; it is not his duty to put forward grounds merely because the appellant wishes him to do so;
	(ii)	grounds are not put forward unless they are 'reasonable', that is, they afford some real chance of success;
	(iii)	grounds are not put forward unless they are supportable by oral argument and are particularised; and
	(iv)	the grounds put forward are settled with care and accuracy."

50.A number of extremely minor criticisms were also levelled at the phraseology adopted by the judge in the summing up. Some of these criticisms were the result of Mr Haynes' inaccuracy and none of them, even in combination, could have amounted to a ground which stood any chance of success.

51.This ground was wholly misconceived.

Ground 7: Lurking doubt

52.Lastly, in ground 7, Mr Haynes suggested that a lurking doubt existed such as to render these convictions unsafe and unsatisfactory. He pointed to some of the features of the Applicant's confession which did not accord with the facts of the case. He took, as one example, the absence of a bite mark on the Applicant's arm which might have been expected to be found there having regard to the testimony given by the sister of the deceased that she had bitten him on the arm in the course of her struggle with the Applicant in the lift. Mr Haynes again reminded us of the weaknesses in the identification evidence, and made particular reference to the absence of anything to connect the Applicant to the scene of the crime aside from the evidence of identification and confession. The Applicant's confession had, amongst other things, stated where property connected to these crimes was to be found. Yet, when police followed up the leads given to them by the Applicant, nothing was discovered of any relevance to the investigation.

53.All of these matters were fully investigated and gone into during the course of the evidence at trial and, when summing up, the judge again reminded the jury of most of the salient points made by the defence.

54.The Applicant was convicted on evidence which provided a strong case against him. In our opinion, the verdicts of the jury are not open to valid criticism. Accordingly, this ground must also fail.

Conclusion

55.This application is dismissed.

Representation:

Mr D.G. Saw, SC, DDPP, and Mr Winston Chan, GC, of the Department of Justice, for the Respondent.

Mr John Haynes, instructed by Messrs Weir & Associates, for the Applicant.