Chau Cheuk Yin Alias Chau Chai and Others v. The Queen
Read the full judgment text of CACC 337/1973 on BabelCite. This Court of Appeal judgment.
1. The prologue to the crimes of which the five appellants were convicted is as sordid as were the crimes themselves and we do not propose to dwell upon it. Very briefly, in May 1972, a young lady endowed with more courage than sense, entered into an arrangement with two men whereby the two were to introduce her to work in a call-girl establishment operated by the female appellant, that is, the 4th appellant. The arrangement was a spurious one in that the girl had no intention of actually perfor
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CACC000337/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 337 OF 1973 -----------------
----------------- Coram: Pickering, Trainor and Cons, JJ. Date of Judgment: 2nd October 1973. ----------------- JUDGMENT ----------------- Pickering, J.: 1. The prologue to the crimes of which the five appellants were convicted is as sordid as were the crimes themselves and we do not propose to dwell upon it. Very briefly, in May 1972, a young lady endowed with more courage than sense, entered into an arrangement with two men whereby the two were to introduce her to work in a call-girl establishment operated by the female appellant, that is, the 4th appellant. The arrangement was a spurious one in that the girl had no intention of actually performing the services which would be required of her by the 4th appellant; the intention of the trio was to obtain an advance payment from the 4th appellant for the future services of the girl who would thereupon abscond. In fact an advance of $2,000 was agreed and, after $1,000 of this sum had been paid over, the girl made good her escape from the 4th appellant's premises without having entertained any clients of the establishment. 2. The reaction of the appellants to this deception was one of violence. Before recounting that aspect, however, it should be explained that each of the 1st, 2nd, 3rd and 5th appellants had some connection with the premises, Flat K on the 2nd floor of Po Ming Mansions, Foo Ming Street, Wanchai, from which the 4th appellant's call-girl ring operated. Thus the 1st appellant's girl friend worked as a prostitute from those premises; the 2nd appellant rented a cubicle there from the 4th appellant; the 3rd appellant was employed by the 4th as some sort of escort for the girls of the establishment as they went to and from their various assignments, and the 3rd appellant also took from the girls a portion of the money (on the evidence, one half) paid by any particular client and handed that over to the 4th appellant or her husband. The 5th appellant was a driver employed by the 4th to transport the girls to and from their various assignations. 3. On the evening of the day following the girl's abscondence, the 4th appellant sent a group of men by car across the harbour with instructions to bring back one of the two men who had introduced the girl to her; this group included the 1st and 5th appellants. The man they were instructed to bring across the harbour, one YEUNG Shing, having been called out from his place of employment as an usher in a cinema, was pushed into the middle rear seat of a car with a man, one of whom was the 1st appellant, on each side of him. The 5th appellant was the driver of the car which contained, in the front, another man, Hak Chai, and a girl. The car was driven to Chi Wo Street in Yaumati where YEUNG Shing was taken up to a flat in which there were already "some females and males". There, on the instructions of Hak Chai, Yeung attempted to telephone to the absconded girl but was unable to make contact with her. On his evidence, he was then beaten up by a group of five men including Hak Chai and the 1st and 5th appellants, all of whom used their fists and feet on him and one of whom hit him in the chest with a pair of pliers. This initial beating occupied about 10 minutes, after which Yeung was given a glass of water to drink. Having consumed the water, he was again beaten with fists and feet for a period of about 15 minutes and on this occasion was also hit with a stool. Following further refreshment in the form of water, two other men came in one of whom, on being informed that Yeung had been guilty of misappropriation, announced his intention of changing his shoes in order to kick Yeung and who did in fact change his shoes; Yeung was then again beaten, this time by the augmented group, and again given water to drink. 4. Following this third beating, Yeung was taken by car across the harbour to Flat K, Po Ming Mansions, the headquarters of the call-girl establishment where the 3rd and 4th appellants were present when he arrived. The 4th appellant asked Yeung where the girl had gone to and he replied that she was at the Singapore Ballroom, whereupon the 4th appellant instructed the others present to give Yeung "a few pieces of things to eat", a phrase which he understood to mean to beat him up. This understanding was confirmed when those present pushed him into another room and there beat him up with fists and feet. This group included the 1st, 3rd, 4th and 5th appellants and lasted for about 20 minutes, after which Yeung was again given a glass of water to drink, this on the instruction of the 4th appellant. The beating up was then resumed for a further 15 or 20 minutes, in the course of which, when somebody tried to hit Yeung in the face with a small stool, the 4th appellant instructed the attacker to hit him not in the face but in the chest. Having again been given a glass of water, Yeung lay down on the floor from which position he heard Hak Chai instruct a group of five, including the 5th appellant, to fetch a man known as Shanghai Chai, who in fact had been the accomplice of Yeung and the girl in the ruse to obtain money from the 4th appellant by the false pretence that the girl would work in the call-girl establishment. 5. Having been told to get up from the floor and sit down, Yeung was approached by the 2nd appellant who asked him what had happened but Yeung having difficulty in speaking, made no reply, whereupon the 2nd appellant punched him hard three times in the chest, knocking Yeung to the floor; from that position he heard somebody express the view that from his condition, he would soon die. Subsequently, at knife point, Yeung telephoned to Shanghai Chai, telling him where he was and asserting that he had gone there voluntarily in order to check certain accounts; Shanghai Chai, disbelieving that the caller was in fact YEUNG Shing, hung up the telephone. Yeung then lay down again on the floor and about an hour later Shanghai Chai was brought into the room by a group of men, invited to look at Yeung's injuries and told that he, Shanghai Chai, had caused Yeung to sustain those injuries. 6. Both Yeung and Shanghai Chai were then escorted to a building in Pak Sha Road, very near the Po Ming Mansions, Yeung, on his evidence, being assisted by a man on each side since he could not walk though such assistance was denied by the 5th appellant. In the Pak Sha Road building the two were taken into a sitting room where all five appellants were present together with Hak Chai and others including some girls. Shanghai Chai was kicked on to a sofa on which Yeung was sitting, whereupon Yeung was told to sit on another sofa; after which a group of more than ten persons including the five appellants, began to hit and kick Shanghai Chai, According to Yeung's evidence the 4th appellant appeared to be in charge during the beating up and it was she who, after 20 to 25 minutes, told somebody to give Shanghai Chai a glass of water, following which the same group again struck him and kicked him, one member of the attacking party hitting him on the back eight or ten times with a wooden pole. It was Yeung's evidence that Shanghai Chai had some difficulty in breathing and when he was struck and kicked he fell on a sofa from which he was lifted up and struck again; at some stage during the beating the 4th appellant ordered the group to remove Shanghai Chai's Hawajian shirt. After the second beating of Shanghai Chai which lasted for 15 to 20 minutes his face and limbs were motionless and, according to Yeung, he said in a very faint voice "You had better beat me up to death". At about this stage the 4th appellant told certain of the attackers to go out for a snack and there were then left in the flat the 1st, 2nd and 5th appellants together with Yeung and Shanghai Chai, each of whom was lying on a sofa. According to Yeung, at that time Shanghai Chai was motionless and his complexion had changed colour; as he lay on the sofa facing the wall Yeung heard a telephone ring and then heard somebody say "It seems that this guy has been nailed", which he understood to mean that Shanghai Chai was dead. While still on the sofa with his face to the wall Yeung heard a number of other people come into the room and sounds as of heavy objects being moved. When he turned away from the wall Shanghai Chai was no longer on the other sofa. 7. Shanghai Chai's body was subsequently found, wrapped in two bedsheets, down a hillside near Deep Water Bay. 8. At the time that Yeung noticed that Shanghai Chai was no longer on his sofa, the 1st, 2nd and 5th appellants, who had been left in the premises with Yeung and Shanghai Chai, were no longer in the flat but the 2nd appellant must have returned because at about day-break Yeung was escorted from the flat, into the street and to another flat by the 2nd appellant and another man whom he could not see clearly. The door to this flat was opened from within by the 1st appellant and the 5th appellant was also already inside that flat. The four helped Yeung to lie down on a rubber mat on the floor and then left the building. 9. Yeung, who described himself as unable to stand or even sit up, remained in that flat during that day; he was given food and water and a bone setter was brought to him to attend to his injuries. In the afternoon of the following day police arrived at the flat and Yeung was sent by ambulance to Queen Mary Hospital where he remained for four days. 10. The medical evidence upon his condition included tenderness on deep palpation over both sides of the lower chest wall, bruising over the whole of the anterior chest wall and on both shoulder and both wrist regions; multiple superficial abrasions at the back, on the abdomen and on both shins, a fracture of the right anterior ninth rib and a crack fracture of the axillary portion of the left ninth rib. 11. An autopsy was performed upon Shanghai Chai and revealed bruising and abrasions over the head, the front and back of the trunk and both upper limbs; some of the bruises were parallel with weals in between and were consistent with having been produced by an instrument such as a rod; there were multiple abrasions not of the sliding type; bruisings on the right forehead and left eyebrow; abrasions on the right eyebrow, the outer end of the right eye and the left side of the chin; both lips were swollen and bruised on the inside and the front of both the upper and lower gums were bruised as were the left arm, the back, the right forearm and the elbow. There were numerous other bruisings and abrasions. Internally there was generalised bruising of the tissues on the front of the chest with a blood clot of about two inches in diameter over the front of the lower part of the breast bone; 17 ribs were fractured, one of them in two places, and the bruising around all these fractures indicated that the fractures were sustained while Shanghai Chai was still alive; there was blood and blood clots in both the right and the left chest cavity, and lacerations on the two surfaces of the middle and lower lobe of the right lung and of the lower lobe of the left lung; there was bruising on the left back of the brain; the gullet, windpipe and smaller air passages contained vomitus and the immediate cause of death was asphyxia due to inhalation of vomitus but the doctor who conducted the autopsy was of the opinion that had the victim not died of asphyxia, the fracturing of the ribs and the injuries to both lungs had produced bleeding which would have resulted in death within an hour of the actual time of death. 12. The five appellants were charged with the murder of Shanghai Chai and with causing grievous bodily harm, with intent to do grievous bodily harm, to YEUNG Shing. In addition the 1st to 4th appellants were charged with the false imprisonment of YEUNG Shing. All appellants were found guilty upon the murder charge and, whilst found not guilty of inflicting grievous bodily harm with intent, all were found guilty of inflicting grievous bodily harm upon YEUNG Shing. The first four appellants were found not guilty upon the false imprisonment charge. All appellants now appeal against their convictions, Mr. Goodbody representing the first three appellants and Mr. Downey and Mr. Leung being respectively for the fourth and fifth appellants. 13. A ground of appeal common to the first four appellants was that the learned commissioner, whilst mentioning the topic of corroboration, failed to explain the meaning of the term to the jury and failed to indicate what evidence, if any, was capable of amounting to corroboration. 14. At the conclusion of a summing-up which had contained no reference to corroboration, Mr. Niamatullah, for the Crown, invited the learned commissioner to consider directing the jury on the position arising where the evidence of one accused implicates another, saying that this might be material in regard to the evidence of the 5th appellant against the 4th. Upon that the learned commissioner said:
15. On behalf of the first three appellants it is complained that although the learned commissioner mentioned the matter of corroboration, he "did not tell the jury what facts amounted to corroboration". We would observe at once that it is never for the judge to tell the jury what facts amount to corroboration: rather it is for him to tell them what matters are capable of amounting to corroboration thereafter leaving it to the jury to decide whether those matters do in fact so amount thereto. But that is not the nub of the matter in regard to the first three appellants. An essential feature of the evidence given by the four appellants who went into the witness-box, namely, the 1st, 2nd, 3rd and 5th appellants, is that nowhere in their evidence, with the exception of references by the 5th appellant to the 4th to which we shall come, was there any attempt by any of them to inculpate any of the other appellants; rather was their evidence exculpatory, and counsel for the first three appellants did not point out to us any single phrase of evidence on the part of any of the appellants which could be said to inculpate any of his clients. It follows that in the case of the first three appellants there was never any need for a direction as to corroboration and if the learned commissioner "did not tell the jury what facts amounted to corroboration", they have nothing to complain of on that score. 16. There is a little more justification for the complaint, on behalf of the 4th appellant, that "the learned commissioner failed to explain to the jury the meaning of corroboration and failed to indicate what, if any, evidence was capable of amounting to corroboration". The 5th appellant had said in evidence that during the attack on Shanghai Chai, he saw the 4th appellant holding a chair leg but did not actually see her use it on Shanghai Chai. He also said that at the time of the beating of Shanghai Chai it was the 4th appellant who was in charge in the premises. Similar assertions of the 4th appellant being "in charge" had been made by YEUNG Shing and a girl, Pik Kwan, and that in the context of questions and answers which leave us in no doubt that what they were saying she was in charge of, was the beating of Shanghai Chai. 17. Mr. Downey, for the 4th appellant, said that it was not strictly true to say that a co-accused is an accomplice - though the evidence might show that to be the case; the courts, counsel said, hesitated to describe a co-accused as an accomplice because that might prejudge the issue but where the fact was there the courts should give a warning as to corroboration and, whilst the warning had certainly been given, it was inadequate in that the jury had not been told the meaning of corroboration and not been told that it must be evidence which incriminated the accused person in a material particular. Having told the jury that there should be independent testimony and that they might well think that there was such testimony, it was then the duty of the commissioner to give the jury some inkling of what that independent testimony was. 18. In support of this proposition Mr. Downey cited the case of Russell(1). In that case Diplock, L.J., quoted Edmund-Davies, J. in the case of Prater(2):-
19. In the case of Stannard(3) it was said that it was at most a rule of practice that a judge, when summing up a case where two or more defendants have given evidence parts of which reflect on the case of one or of the other defendants should warn the jury in similar terms to those which, as a rule, are proper to be employed regarding the evidence of accomplices. 20. Thus the position is that it is desirable as a matter of practice, but not essential as a rule of law, to give the warning where an accused person has given evidence inculpating a co-accused. The purpose of the warning was expressly said in Russell to be "to remind the jury that an accomplice may have some purpose of his own to serve in throwing the blame on a fellow-accused". That purpose may or may not be apparent from the evidence. Indeed in the present case there is nothing to suggest any purpose that the 5th appellant might have thought he was serving unless he felt that by extending the number of those taking part he pro rata diminished his own responsibility. His evidence against the 4th appellant did not directly exculpate himself in any way. So clear is this that perhaps no warning at all was necessary in the circumstances, but be that as it may, we are inclined to adopt the further words of Diplock L.J. in the same case where he said:
Indeed this was not the only warning given by the learned commissioner in respect of the evidence of others as to the activities of the 4th appellant for in the course of his summing-up the learned commissioner said of the 4th appellant:
21. Moreover, quite apart from the warning given by the learned commissioner it is apparent that there was abundant evidence of corroboration in the recitals of events given by YEUNG Shing and Pik Kwan and this rendered apposite the words of Humphreys, J. in the case of Garland(4). The learned judge there said:
22. As we have said, we are of the view that there was no necessity for a direction in regard to corroboration in respect of any of the appellants but had the matter been otherwise we would, in view of the ample evidence of corroboration, have adopted the same course as did the court of criminal appeal in the case of Garland. 23. A ground of appeal common to all the appellants was that the learned commissioner failed adequately to direct the jury upon the matter of common intention. It was said that the direction given, failed to leave to the jury the question whether each accused had the same intention as the person or persons he was assisting. It was further complained that the commissioner was wrong to distinguish the present case from the Anderson & Morris(5) type of case where one of two persons taking part in a concerted attack, departed completely from the scope of the common design by using a weapon in a manner which the other party had no reason to suppose would occur, so causing death. Having referred to that type of case the learned commissioner said:
24. We think this was a realistic assessment of the situation in the present case and we are unable to agree with Mr. Leung that when the learned commissioner asked the jury to dismiss from their minds any question of a pre-arranged beating, he was asking them to dismiss from their minds the question of common intent and was, in effect, withdrawing common intent from the jury. There was, as we shall see, a perfectly adequate direction upon common intent. 25. It was further suggested that the commissioner should have asked the jury to consider whether the specific acts of specific individuals went beyond common intent but since there was no evidence that any specific act of any specific individual was the proximate cause of death, we are unable to see which particular specific acts should or could have been so referred to by the learned commissioner. A similar comment must apply to the beating of YEUNG Shing. 26. It was further Mr. Leung's contention "that the learned commissioner omitted to direct the jury that the death of Shanghai Chai was caused by an act of a person beyond the common intention or design of the (5th) appellant". As to this we merely observe that it was entirely a matter for the jury and it would have been wrong for the commissioner to direct the jury in the manner in which it is here complained that he failed to direct them. 27. The plain fact is that in respect of the assaults upon both men very considerable force was used and it must have been within the knowledge of anybody present, and certainly within that of anybody taking part actively or encouraging with their presence, that the intention existed on the part of some or all of the attackers to inflict, at the least, grievous bodily harm. This must have become progressively clear as the beatings persisted and the deceased visibly grew weaker. We have already referred to the medical evidence regarding the injuries sustained and those injuries were such as to constitute adequate testimony of such intention, an intention which must have been known to all who took part in these attacks. As to the fact that, upon the second count, the jury found the appellants guilty merely of inflicting grievous bodily harm rather than causing grievous bodily harm with intent, we would observe that this was an illogically lenient result. 28. Dealing with the matter the commissioner said:
29. That was a perfectly adequate direction as was the direction in regard to the second charge where the learned commissioner said:
30. The learned commissioner then went on to explain to the jury the alternative possible finding of inflicting grievous bodily harm under s.19 of the Offences Against the Persons Ordinance. 31. We do not consider that there is any merit in the various grounds of appeal which relate to the direction upon common intent. 32. A ground peculiar to the 5th appellant was the learned commissioner's refusal to hear his counsel upon a submission of no case to answer. The matter arose thus: at the conclusion of the case for the Crown no attempt was made by counsel for the 5th appellant to make such a submission and it was only after the evidence of the first three appellants had been heard (the 4th appellant did not give evidence) that counsel for the 5th appellant attempted to make a submission. The learned commissioner declined to hear such submission at that stage saying it should have been made at the conclusion of the prosecution's case. That, as we understand it, is certainly the practice in England and has been the practice in Hong Kong, although Mr. Leung was able to cite an Australian authority supporting the course which he wished to adopt. For our present purposes the point is academic for, upon a careful consideration of the evidence which existed with regard to the 5th appellant at the close of the prosecution's case, it is clear beyond a peradventure that any such submission must have failed. 33. A further ground of appeal common to the first four appellants was that at one stage of the summing-up the learned commissioner employed the phrase "this makes the burden on the accused somewhat lighter"; it was said that this may have led the jury to think that it was for the accused to prove their innocence. The phrase occurred after the learned commissioner's comment, already quoted, to the effect that the jury should deal with the matter on the basis that the beatings were not something which were really pre-arranged. In its context, the phrase complained of appears thus:-
34. Admittedly the reference to making the burden on the accused somewhat lighter was unfortunate; we are at a loss to understand what the learned commissioner had in mind at that point in his summing-up. However, the summing-up must be read as a whole and, if that be done, it becomes clear that the jury could not have been left with any impression that it was for the appellants or any of them to discharge any burden of proof. Thus, although we have not the advantage of a transcript of defence counsel's final speeches to the jury, it is apparent from the judge's summing-up that these speeches had contained references to the burden of proof; for at an early stage in his summing-up the learned commissioner said:
Two-thirds of the way down the same page of the transcript of the summing-up there occur the words:
35. We have provided the underlining. Immediately afterwards the learned commissioner said:
36. Here, in the space of one page of the transcript of the summing-up, occur three distinct references to the burden of proof and we are unimpressed by the suggestion that since there was an overnight adjournment in the course of the summing-up, and since her almost wholly exculpatory statements against the rest of the evidence and we have no doubt that this is what the jury did in arriving at a conclusion of guilt. 37. Finally, upon this ground of appeal, it is appropriate to recall the learned commissioner's direction to the jury when speaking collectively of the statements made by the first four appellants.
38. We need say no more upon this ground of appeal. 39. During the hearing of the appeal counsel for the 4th appellant sought and was granted leave to add an additional ground of appeal which was to the effect that:
40. The first specific complaint under this head was the commissioner's comment, in reference to the 4th appellant, that "you have to bear in mind what is expressed by one of the popular English poets that 'the female of the species may be more deadly than the male'. It is a matter for you to decide". 41. The reference was, we think, both unnecessary and unfortunate. Nonetheless we do not consider that this aside could have influenced the jury in their determination of the 4th appellant's guilt. 42. The next extract complained of was that the commissioner reminded the jury that YEUNG Shing had said that the 4th appellant "punched and kicked him and used her elbow against him and so on" and that when somebody wanted to hit him in the face with a stool, she ordered him to be hit on the chest rather than in the face. There was, counsel said, evidence from YEUNG Shing that the 4th appellant had elbowed him and given the instruction regarding using the stool upon his chest rather than the face, but there was no such evidence that she had punched and kicked him. The record shows that it had in fact been stated by YEUNG Shing that he had been beaten with fists and feet by a number of persons including the 4th appellant but when he was asked precisely how she had assaulted him, he modified his evidence to say that she had used her elbow to thrust against him. The learned commissioner does appear, in his remarks to the jury, to have overlooked this modification of the original evidence but, in the light of the evidence from YEUNG Shing that it was the 4th appellant who ordered his beating up and who, after he had been given water, ordered the resumption of the attack upon him, the slip cannot have had any effect upon the minds of the jurors. 43. Counsel next criticizes the commissioner's assertion that the girl Pik Kwan confirmed that the 4th appellant took an active part in the attack on YEUNG Shing at Po Ming Mansions. This evidence, he points out, was considerably diluted, if not contradicted, in cross-examination when the girl agreed with Mr. Goodbody that she only heard the sound of YEUNG Shing being beaten in a cubicle the door to which was open and into which she saw the 4th appellant go whilst the beating was going on. It is true that that contradiction in Pik Kwan's evidence existed, but equally true that, in re-examination, she was asked "Did you see YEUNG Shing being beaten at all?" and replied "I saw it when I cast a glance". These contradictions appear to have been overlooked by the learned commissioner who was faced with the task of recalling detail given by various witnesses in very lengthy evidence regarding a series of beatings. In the light of the evidence of YEUNG Shing himself however, we cannot consider that any prejudice to the 4th appellant ensued. 44. It was further alleged that the learned commissioner had gone too far in describing the evidence given by the 5th appellant about the activities of the 4th, as "pretty damning". The passage complained of was as follows:-
45. It was suggested to us that the phrase "pretty damning" was far too strong to apply to a situation in which all the 5th appellant had been able to say, was that he had seen the 4th holding a chair leg but had not seen her actually use it upon Shanghai Chai. In fact however the 5th appellant had said more than this. In cross-examination he had described the 4th appellant as the controlling interest, the "mastermind", behind the beatings. "Pretty damning" cannot be said to be an inappropriate description of such evidence. 46. The remaining ground of appeal w s on behalf of the 5th appellant and alleged that the learned commissioner failed to deal adequately with the case of that appellant. As presented, this ground of appeal had more apparent substance in regard to the finding of causing grievous bodily harm than in regard to that of murder. But even in regard to that lesser crime there was evidence upon which the jury could reach the conclusion of guilt, for the 5th appellant himself admitted punching YEUNG Shing as well as hitting Shanghai Chai. We are unable to agree that his case was not adequately dealt with. 47. We find no real substance in any of the grounds of appeal of any appellant and application for leave to appeal against conviction must accordingly, in each case, be refused. 48. We wish to say a particular word of thanks to two of the counsel engaged upon this appeal. Whilst we are indebted also to Mr. Downey for his careful and painstaking arguments, Mr. Goodbody and Mr. Leung went beyond the call of duty. It so happened that these clients were legally aided - but in regard to the murder conviction only. To have asked the 1st, 2nd, 3rd, and 5th appellants to present their own arguments upon the appeal against the conviction for causing grievous bodily harm would, in a case of this length and complexity, have placed an impossible burden upon them if complete justice was to be done to those appellants. We were both relieved and grateful when Mr. Goodbody and Mr. Leung, though not briefed by the Director of Legal Aid upon this aspect of the appeals, came to the assistance of these appellants and of this court, by volunteering to address the court upon the matter of the grievous bodily harm convictions as well as upon that aspect of the appeals in respect of which they had been briefed. We gladly acknowledge our debt to them. Representation: D.M. Goodbody (D.L.A.) assigned for 1st, 2nd & 3rd appellants. Downey (Alfred Lau & Co.) for 4th appellant H.Y. Leung (Henry C.K. Tung & Co.) assigned for 5th appellant. Niamatullah, C.C. for respondent. (1) (1968) 52 Cr. App. R. 147 (2) (1960) 44 Cr. App. R. 83 (3) (1964) 48 Cr. App. R. 81. (4) (1942-44) 29 Cr. App. R. 46n. (5) (1966) 2 Q.B. 110 |