Cheng Pak Hei and Others v. The Queen

Case No.CACC 42/1973

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000042/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 42 OF 1973

BETWEEN
	(1) CHENG PAK HEI	Appellants
	(2) KWAN YIP CHUEN
	(3) LAM KWOK HUNG
	(4) WONG TUNG SHING
	and
	THE QUEEN	Respondent

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Coram: Huggins, Pickering & Cons, JJ.

Date of Judgment: 22nd March 1974.

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JUDGMENT

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Huggins, J.:

1. The four Applicants were indicted for murder and the jury found the case proved against all of them. However, against the first Applicant they returned a verdict of Not Guilty of murder but Guilty of manslaughter on the ground of diminished responsibility. All applied for leave to appeal against conviction, the first Applicant having abandoned an application for leave to appeal against sentence and been granted leave to apply out of time for leave to appeal against conviction.

2. Notice was given by the first Applicant of eighteen grounds of appeal. The other Applicants at first gave notice in person but the grounds then stated were replaced by fourteen grounds. Subsequently notice was given of no less than twenty-nine additional grounds, which unfortunately were numbered from 1 to 29 instead of from 15 to 43 so that there has been repeated confusion in the course of the hearing as to which ground was under discussion. Of the grand total of sixty-one grounds of appeal one was formally abandoned, seven were not argued, one was in a form which made it purely academic and several were repetitious of earlier grounds. It was conceded by counsel for the Applicants that some of the others were not grounds upon which this court could properly interfere although the points raised therein might have been taken in support of a ground ...(illegible) that the verdicts were unsafe or unsatisfactory.

3. The circumstances of the alleged offence were as follows. The first Applicant was the son of the Deceased. He had a long-standing grudge against the Deceased and the case for the Crown was that he engaged the other three Applicants either to kill or to cause grievous bodily harm to the Deceased. The second Applicant was introduced to the first Applicant by a man called CHEUNG Chak-leung, who in turn introduced the third and fourth Applicants to the first Applicant. Before the fourth Applicant came on to the scene a man named MAN Kam-yuen had been associated with the others but his place in the alleged conspiracy was taken by the fourth Applicant. The case for the prosecution was that there was an agreement with the second to fourth Applicants to kill "a man", although it was not known to them until after the alleged offence that the "man" was in fact the father of the first Applicant. CHEUNG Chak-leung and MA Kam-yuen were witnesses for the prosecution and it was largely from them that the police obtained their information. They gave evidence of meetings at which the various Applicants were present. They said that a murder was discussed and that three photographs of the proposed victim were distributed. A reward of $20,000, a flat and some personal property was agreed upon. The first Applicant gave as the reason for the attack that the man had obstructed his business and he suggested that the crime should be made to look like a robbery. Another man, called KWAN Wai-on, was also in the conspiracy and he together with MA Kam-yuen, the second Applicant and the third Applicant went to reconnoitre the proposed scene, which was the Deceased's flat, where he lived with his wife. There was then another meeting when the second Applicant fabricated a story which they told to the first Applicant with the object of obtaining payments in advance, but this was declined. The killing took place on 21st February. The first Applicant had by that time removed himself to Lantau, but the other three Applicants are said to have carried out the crime upon the instructions already given by him. There was evidence that on 24th February the second to fourth Applicants were on Lantau and were describing how the killing had been done. Two days later the first Applicant gave $2,000 to CHENG Chak-leung to be handed on to the second Applicant, but Cheng in fact pocketed the money for himself. On 28th February the first Applicant gave $300 to KWONG Chi-ling for division equally between the second to fourth Applicants. Five days later the first Applicant gave Kwong another $300 for the same purpose. There was also evidence that the second Applicant asked the third Applicant to remove a knife from KWONG Chi-ling's residence and return it to the Miramar Cake Shop. Payment of $300 was made later and the first Applicant said he would pay the balance as soon as his father's estate was fixed up.

4. The Applicants did not deny that there was a conspiracy to the prejudice of the Deceased. The second Applicant's case was that there was an agreement to beat him up but not to cause as much as grievous bodily harm, the reason for the assault being stated to be that the Deceased was interfering with the first Applicant's smuggling business. The others said that robbery was the true purpose and that robbery was not merely to be a cover for a physical attack. The second Applicant admitted that he had armed himself with a knife, his reason being that he had been warned that the Deceased was experienced in Chinese boxing. There was evidence that the second Applicant had stolen a triangular file shortly before the incident and he himself said that the third or fourth Applicant had a triangular file. The first Applicant's defence was that he incurred gambling debts in the second Applicant's favour and that he suggested a robbery in order to make good these debts. He said the $2,000 he gave to Cheng had come from his mother to pay off the gambling debts and that when Cheng pocketed this sum he made the subsequent payments of $300 to be passed to the second Applicant for the same purpose. The second Applicant did not agree with all this. Both the third and fourth Applicants denied that they were present when the alleged offence was committed.

5. The first point argued on behalf of the second to fourth Applicants is that the learned judge failed to leave a possible verdict of not guilty of murder but guilty of manslaughter open to the jury save on a very restricted basis. It is submitted that if the evidence of the second Applicant were believed the jury would have found that these three Applicants had a common intent unlawfully to assault or to rob the Deceased but no intention to kill him or to do him grievous bodily harm: therefore the lesser verdict should have been left to them. There is, of course, no doubt that where the evidence would enable a jury to find facts establishing manslaughter they must he directed that a verdict of not guilty of murder but guilty of manslaughter is open to them. Cons, J. drew counsel's attention to a passage in the summing-up where the judge said:

"The only other circumstances in which a ve dict of manslaughter would be open on the evidence would be in the following circumstances: If you are satisfied that the three accused were present and actively participating and sharing in the common design, that common design being to rob and/or to assault the deceased short of causing him grievous bodily harm, and if you accept the evidence of the 2nd accused that when he left the bedroom the deceased was lying on the bed tied hand and foot and gagged and unhurt, and if you find the deceased met his death through the unlawful use by the 3rd and/or the 4th accused of such weapons as you find were in his or their possession, and that the use of such we pons was used within the common design, that common design being to do something which did not include at least grievous bodily harm to the deceased, then again all the three accused would be guilty of murder - of manslaughter, I am sorry".

Counsel replies that the passage is too vague and, indeed, meaningless. It could have been phrased with greater clarity and might be said, standing alone, to give a false impression as to the burden of proof, but it is only part of the direction on the crime of manslaughter: the learned judge had previously given a definition in these terms:

"Now, 'manslaughter' is the unlawful killing of a human being without any intention to kill or to cause grievous bodily harm. If a person unlawfully uses a weapon with the intention of threatening or frightening another or to cause some injury short of grievous bodily harm and death ensues as a result, then all the persons present, actively participating and sharing in that intention would be guilty of manslaughter. Thus if you are satisfied that the 2nd accused and the 3rd and/or the 4th accused and/or with another or others not in custody were present in the premises in question at the relevant time and that one or more of this group was armed with weapons and that the weapons, in the contemplation of the group at that time, would or even might be used in the execution of the common design, that common design being to rob and/or to assault the deceased, short of killing him or causing him grievous bodily harm and the deceased met his death during a struggle, than you will find the 2nd accused and such other accused as you find to have been present, actively participating and sharing in that common design not guilty of murder but guilty of manslaughter."

It was contended on behalf of the Applicants that this definition was insufficient because there might have been an agreement to cause grievous bodily harm without weapons and that that would not have justified a verdict of murder when the death was caused with a weapon. The argument seems to be that this would amount to a substantial departure from the common design, since the risk of death was greater when weapons were used. Counsel was unable to cite any authority for such a distinction and was forced to concede that the same distinction could not be drawn where, although the common design was to cause grievous bodily harm with a particular weapon, death was caused by a different kind of weapon. We see no justification in principle for drawing this distinction, which might lead to questions of degree of such nicety that a most undesirable element of uncertainty would be introduced into the law even if in practice it were possible to determine the nature of the common intent with such precision. We think the learned judge correctly defined manslaughter. The Applicants relied upon a dictum in Reg. v. Turner (1864) 4 Fost. & Fin. 339, 341 but, whatever may have been the position in 1864, we do not think that assists them. Nor do we find any support for counsel's contention in YU Sum-kwan v. Reg. (1956) H.K.L.R. 353.

6. The judge proceeded to expound his definition of manslaughter by discussing the possibility of a struggle and then, in the other passage cited, he sought to explain how, on the evidence, a verdict of manslaughter was not really open except on the basis of a struggle and he suggested that the second Applicant's case was inconsistent with the evidence. We think he was right. The number of wounds on the body of the Deceased was explicable on no other basis if the jury rejected the allegation of malice aforethought: it was inconceivable that the death resulted from the Applicants having by mischance struck the Deceased the fatal blows although intending merely to frighten him or to cause him some injury less than grievous bodily harm unless there was a struggle. Of course, if the second Applicant's evidence that the Deceased was trussed on a bed but unhurt when he left the bedroom had been believed, even the possibility of a struggle was ruled out, but the learned judge properly left the matter to the jury.

7. Counsel for the Applicants has submitted that a substantial part of the evidence against the Applicants was that of accomplices and that a careful warning should have been given to the jury about the danger of acting upon the uncorroborated evidence of accomplices. It is his contention that the warning given was insufficient. What the learned judge said was:

	"I now want to define to you what an accomplice is. Any person who is knowingly so closely associated with a crime, either before or after its commission, is an accomplice and this includes any person who knowingly instigates, participates, assists or renders encouragement or advice in a crime. It is my duty to direct and warn you that it is dangerous to convict on the uncorroborated evidence of an accomplice, but if, giving full weight to that warning, you come to the conclusion that without any doubt, an accomplice is speaking the truth, then the fact that there is no corroboration matters not at all, and you are entitled to convict if you are satisfied that the evidence so warrants. In one way or another you would do well to treat all the accused as accomplices and scrutinize their evidence very carefully, in the knowledge that each of them may have some interest of his own in trying to shift the blame from himself onto others. The evidence of one accomplice cannot corroborate the evidence of another accomplice nor can the evidence of an accomplice be corroborated by the evidence of any witness I shall direct you to regard as unreliable.
	Now, what is corroboration? It is some independent testimony which affects the accused by tending to connect him with the crime, that is, evidence direct or circumstantial which implicates the accused, which confirms in some material particular not only the evidence given by the accomplice that a crime has been committed, but also the evidence that the accused committed it. The kind of corroboration required is not confirmation by independent evidence of everything that the accomplice says, for in that case it would be unnecessary to call the accomplice. An accused's own evidence may afford the necessary corroboration, as may also a statement made by an accused to the police, provided you are satisfied that such statement is true. Of course, members of the jury, if when you come to consider the statement made by each accused and you are satisfied beyond reasonable doubt in respect of the accused to whom it relates that the statement is true, then it may well be - it is entirely a matter for you - that you will not have to look any further to reach your decision regarding to that particular accused.
	Now, with regard to accomplices. I direct you that you are to treat the witness MA Kam-yuen as an accomplice."

Subsequently he repeated the warning in similar terms. As we understand the complaint it is that by telling the jury that they were entitled to convict even in the absence of corroboration if entirely satisfied of the truth of the accomplices' evidence the learned judge so weakened the effect of the warning that the impression given was that corroboration was not really important. In our view the law is correctly stated in Reg. v. Prater 1960 2 Q.B. 464, 466 where Edmund Davies, J., delivering the judgment of the Court of Criminal Appeal, said:

"... in practice it is desirable that a warning should be given that the witness, whether he comes from the dock, as in this case, or whether he be a Crown witness, may be a witness with some purpose of his own to serve".

What is required, therefore, is that the jury should be warned (a) of danger and not merely, for example, of a "need for particular care", and (b) of the nature of that danger, namely that an accomplice may have a purpose of his own to serve: compare Reg. v. Price 1969 1 Q.B. 541. In our view the warning in the present case was amply sufficient.

8. Then it is said that there was insufficient corroboration. It seems to us that this ground of appeal is misconceived. From what we have just said it follows that it is always open to a jury to convict on the uncorroborated evidence of an accomplice if they see fit and therefore even the complete absence of corroboration is per se never material. An appeal may properly be founded upon the sufficiency of the warning of the danger in convicting without corroboration or upon a misdirection as to what constitutes corroboration. Apart from such grounds the only possible line of attack is that the absence of satisfactory corroboration supports a general contention that the verdict is unsafe. That is not the way the matter was raised in the grounds of appeal. What Ground 9 of the first Applicant's appeal and Additional Ground 8 of the other Applicants' appeal appear to allege is that the learned judge ought to have directed the jury that there was no evidence capable of amounting to corroboration and this appears to have been the understanding of counsel for the Crown also. We are satisfied that there was evidence capable of amounting to corroboration. If, on the other hand, it was intended to allege that the learned judge misdirected the jury that the evidence of one accomplice can corroborate the evidence of another accomplice, the contention manifestly fails because there was a very clear direction that

"[t]he evidence of one accomplice cannot corroborate the evidence of another accomplice nor can the evidence of an accomplice be corroborated by the evidence of any witness I shall direct you to regard as unreliable".

It might have been better to say that the evidence of an accomplice could not be corroborated by the evidence of any witness the jury thought unreliable, but nothing turns upon that.

9. Complaint is made that the learned judge wrongly admitted in evidence extra-judicial confessions made by each of the Applicants, on the ground (or so we understand the notices as now explained by counsel) that the decisions that the statements were voluntary were against the weight of the evidence. In the alternative it is said (1) that the statements were obtained in circumstances which required the judge, in the exercise of a discretion, to exclude the statements even if they were lawfully admissible, and (2) that the statement of the first Applicant should have been excluded on the ground that its prejudicial effect exceeded its probative effect. It was even contended that the first sentence of the learned judge's ruling showed that he did not appreciate the true nature of the burden of proof, but we say no more about that than that such a contention could only be based upon a complete misunderstanding of what the judge said. It is necessary to state how the various statements came to be made. The first Applicant was in fact the last to be arrested by the police. At about noon on 25th March 1972 Inspector CHAN Wing-cham went to the first Applicant's home and in his bedroom he made a statement under caution. After a report had been made at Bayview Police Station the first Applicant was taken to the Triad Society Bureau, where he made two further statements. All these statements were rejected by the learned judge because he was not satisfied that they were taken in the circumstances alleged by the police. However, there was evidence that at 4.43 p.m. (which was only 20 minutes after his third statement) the first Applicant was formally charged with murder and his answer to the charge was one of the statements which it is said were wrongly admitted. The learned judge said that he was satisfied that it was freely and voluntarily made, but counsel points out that the judge never alluded to the proximity in time between the last of the rejected statements and that which was admitted and it is submitted that due weight cannot have been given to this factor. It is certainly, in our view, one which merited express mention. It has been held that where an inducement has once been held out the prosecution must prove that any subsequent confession was not made under the influence of that inducement. Counsel for the Crown has emphasised that there was no finding that the earlier statements were involuntary. While that is true it seems to us that where the possibility of an inducement in the recent past has not been negatived the prosecution must show that the effect of any inducement there may have been has been dissipated. Indeed, this may be more difficult than to negative an inducement the nature of which as known, for the continuing effect of an inducement depends in part upon the degree of inducement, in part upon the time which has elapsed since it was made and in part upon the resistence of the individual defendant to that kind of inducement. It follows that, where a judge has rejected one confession because he was not satisfied that he knew the circumstances in which it was taken, the degree of any inducement there may have been is not known and a longer time must be allowed before it can safely be said that any inducement there may have been must have dissipated. It is enough here that even a very slight inducement might survive for more than 20 minutes and we are bound to say that we think the learned judge was not entitled to conclude that the answer of the first Applicant to the charge against him was voluntary. Counsel for the Crown has sought to support the decision of the learned judge by submitting that the judge was wrong to reject the three earlier statements once he disbelieved the allegation of the first Applicant. The answer to that is that the onus was on the prosecution to prove that each statement was voluntary and the fact that the first Applicant was disbelieved did not establish the voluntariness of the statement. If the answer was not proved to be voluntary it was not admissible and no question arises as to the exercise of any discretion to exclude it.

10. Would the jury undoubtedly have convicted the first Applicant if his confession had not been admitted? Mr. Bernacchi submits that they would not, because the only other evidence of substance was that of accomplices. We cannot, of course, say whether that is entirely correct. The learned judge directed the jury to treat MA Kam-yuen as an accomplice but he correctly left it to them to decide whether CHEUNG Chak-leung and KWAN Wai-on were accomplices and we do not know what they decided. If, as is possible, all three were found to be accomplices the confession would be the only corroboration of their evidence. It was in such terms that if the jury thought it was entitled to any weight it must inevitably have influenced them in reaching a verdict. The result is that the appeal of the first Applicant must be allowed. It is further contended that the wrongful admission of the first Applicant's confession prejudiced the other Applicants and justifies our allowing their appeals also. We do not agree. The jury were properly told that the unsworn statements of each Defendant were evidence only against the makers and we are not to assume that the jury would disregard that direction, although counsel submits that we should, apparently on the basis that jurors, being untrained, are intellectually incapable of giving effect to such distinctions. If that were true it would be wrong to admit even voluntary confessions in evidence if they tended to incriminate a co-defendant, but the law clearly allows that to be done provided a sufficient warning is given.

11. The circumstances surrounding the taking of statements from the second to fourth Applicants were much in dispute. The main body of the police evidence was that as a result of information received a party of detectives was summoned to the Triad Society Bureau at 0200 on 25th March and later proceeded to the vicinity of a flat in Lockhart Road at about 0230: the officers remained there until 0310 when six suspects, including these three Applicants, were seen to descend from the flat and cross the road to a food stall, where they ordered a meal. The suspects were then arrested and each of these Applicants made a statement: the suspects were next taken to the Triad Society Bureau for about ten to twelve minutes while some forms were prepared, after which they were taken to Wanchai Police Station by car: the time of arrival at the police station was given as 0330 or 0335: after a report had been made the suspects were taken back to the Triad Society Bureau and the oral statements were recorded, the first of these being timed at 0348: further questions were put to the second Applicant and as a result he made another long statement. The case for the defence was that the Applicants went to the food stall at 0200, that the police came up and accused them of taking their noodles, that the arrests were at 0230 and not at 0310, that pressure was put upon the Applicants at the Triad Society Bureau and that the statements were induced by that pressure. The argument is based largely upon the fact that the officers concerned admittedly did not include any reference to the first visit to the Triad Society Bureau in the records of events they made in their notebooks and it is suggested that this omission was a deliberate attempt to hide a visit during which pressure was brought to bear upon these Applicants. Support for the argument is sought from some discrepancies in the police evidence as to the times of arrival at the police station and it is said that such uncertainty exists that the judge should not have been satisfied beyond reasonable doubt that the statements were voluntary. To this was added the contention that the statements were inherently suspect because they gave an account which on the medical evidence could not be true.

12. What is said as to the medical evidence is that it was inconsistent with the case propounded by counsel for the Crown. What Dr. Ong said was that the five tri-radiate stab wounds which he found on the body were consistent with their having been inflicted by a triangular scraper and not with a triangular file and he gave as his reason the fact that he found no marks on the body corresponding to the serrated edges of a file. But he did say that the weapon might have been one similar to the top of the instrument produced to him. What did he mean by that? The instrument produced was basically a triangular file but about half the length of the blade had been smoothed and grooves had been cut so as to turn it into a scraper. This was not the weapon alleged by the Crown to have been used by the third and fourth Applicants but it had been made at the request of the police as a replica of the weapon alleged to have been used. It was made from memory by the man who had made the original. The jury may well have come to the conclusion that the blade of the original had been smoothed along a greater part of its length than had this replica and that the instrument they were shown was not so exact a replica that the original could not have caused wounds like those found on the Deceased without leaving evidence of serration around the edges.

13. We have considered all the passages in the evidence which counsel has read to us and it is enough for us to say that we are not persuaded that the judge was wrong to find, as he did, that the statements of the second to fourth Applicants were voluntary.

14. In this connection we must mention a related ground of appeal based upon the disallowance of questions in the cross-examination of Inspector Lau. The witness had given as his reason for taking his prisoners to the Triad Society Bureau before taking them to the police station that he had an office with a typewriter at the Triad Society Bureau and that by completing the necessary forms there he might be able to avoid a considerable delay at the police station if no typewriter were available. Since the defence case was that the reason for the first visit to the Triad Society Bureau was by no means so innocent, counsel sought to question the witness about occasions when he had taken prisoners to the Triad Society section in Kowloon, although he had no office in Kowloon and the same reason could not then have applied. In our view that was a legitimate line of cross-examination, but unfortunately counsel embarked upon it by referring not to the occasions themselves but to the trials in a magistrate's court arising out of them. Indeed the question which led to objection and the subsequent disallowance of further questions was directed to the finding of the magistrate upon the evidence before him. That was clearly objectionable and we think that the judge's ruling was coloured by his not unreasonable belief that Mr. Bernacchi's purpose was to bring before the jury the fact that the magistrate had doubted the truth of the witnesses' evidence in the previous trial. We sympathise with him: had no reference been made to the proceedings in the magistrate's court counsel would probably not have been stopped. However, Mr. Bernacchi failed to disabuse the mind of the judge as to his intentions and in the event proper questions as well as improper questions were disallowed. Although the questions related to a matter which was of some importance to the defence case we do not think that their disallowance was so grave a matter that it strikes at the root of the verdicts. Had we done so we would have thought that the proper course was to order a new trial of these three Applicants unless some other, fatal, error were shown.

15. Should the learned judge have exercised his discretion not to admit the statements of the second Applicant? It is said that parts of his first statement should have been excluded on the ground that they were made in answer to questions improperly put to him by the police. A similar point was taken at the trial in respect of a statement made by the fourth Applicant and the learned judge did exclude that statement. Counsel argues that there was no sufficient ground for distinguishing between the statements of these two Applicants and that as one was excluded it was not safe to include the other. In neither case was a further caution administered before the questions were asked and in neither was the purpose to clarify any ambiguity in the statement which had just been recorded. It is said that the true reason for distinguishing between the two Applicants was that the Crown's case against the second Applicant was weaker and the judge had set himself up as an arbitrator between the interests of the Crown and the interests of the accused persons. We find nothing in the ruling to support this allegation. There was a difference between the second and the fourth Applicants in that the fourth Applicant was only 16 ½ years old at the time. In addition to that, however, the learned judge expressly mentioned the manner in which the second Applicant gave his evidence and he said that by his demeanour this Applicant satisfied him beyond doubt that the further statement was given without prompting. We take this to mean that the learned judge thought the improper questions really had very little effect upon the mind of the second Applicant and that no dictate of justice required him to exclude his statement. We cannot say that there was no ground upon which the judge could reasonably make the distinction which he did. Then it is submitted that the prejudicial effect of the second Applicant's statement greatly outweighed its probative value. The basis of that submission was, once again, that the statement was so inconsistent with the medical evidence. We do not think it was necessarily inconsistent, but in any event that would not be "prejudice" within the meaning of the principle. On the other hand, an admissible confession is always evidence of a most cogent kind and we see no merit in this argument.

16. Finally in relation to the statements it is said that it was wrong for the judge to give a positive direction to the jury that they could act upon a statement if they believed it to be true even though that statement was not proved to have been voluntary. This Court has emphasised before that the question for the jury (as distinct from the question to be decided by a judge upon the issue of admissibility) is whether the statement is true. It would be wrong for a judge to tell a jury that the voluntariness of a statement was not material to the question they had to decide, but the principle decided in CHAN Wei-keung v. Reg. 1967 A.C. 160 is not to be whittled down in the manner contended for here. In our view the matter was left fairly to the jury in the present case. What is open to criticism, however, is the statement in the summing-up that the defence were in effect alleging a conspiracy by the police officers concerned "to frame the accused for a murder they did not commit". Mr. Bernacchi assures us that he never suggested there had been a conspiracy to do that: his case was that the police were conspiring to give false evidence against the Accused because they believed them to be guilty. It may be that the learned judge had a different understanding of what was being suggested but we need not concern ourselves further with the matter for, if error there was, we do not think it can have resulted in any substantial miscarriage of justice.

17. That part of the appeal which occupied most time was a consideration of the allegation that the learned judge entered into the arena in the course of the trial to such an extent that the Applicants were denied a fair trial. It was a very long and unnecessarily protracted trial and the transcript runs into a total of 4,055 pages. Counsel has drawn our attention to 213 pages on which appear what he submits are the most serious of the interventions by the judge. We have particularly considered these and have noted other examples during the course of the hearing of the appeal. Each of us tabulated in his own way his opinion on the interventions found on each of the pages to which we were specifically referred and we regret to say that we all found ample ground for complaint about the conduct of the trial and concluded that many more of the interventions by the judge than the ten instances conceded by counsel for the Crown could not be justified. These included instances where -

(a)	the judge took over the examination or cross-examination of a witness when there was no excuse for so doing, in particular to question him about inconsistencies between what he had just said and his earlier evidence;
(b)	the judge interfered during the case for the defence to ask whether a matter had been put in cross-examination of the prosecution witnesses;
(c)	the judge asked questions which were proper and timely but protracted his interrogation to such an extent that it unreasonably interfered with counsel's conduct of the case.

Nevertheless there were among the passages complained of a majority of instances where the interruptions by the judge could be justified on one of the following grounds:

(i)	clearing up an ambiguity or obscurity of language (although sometimes it was doubtful whether counsel might not have put the necessary questions without intervention by the judge);
(ii)	correcting counsel or interpreter;
(iii)	insisting on an answer to counsel's question (although this again would have been better left to counsel themselves);
(iv)	confirming that he had correctly heard an answer just given;
(v)	checking that evidence was not hearsay;
(vi)	clearing up what the judge thought to be a misunderstanding between counsel and witness and thus shortening the trial;
(vii)	ascertaining the time or place of events being described.

(This list does not, of course, include instances where the initial interruption was by counsel in objection to a question and where the judge merely proceeded to hear argument and to rule upon the objection.) We cannot emphasise too strongly that a judge should never interrupt the examination of a witness unless it is absolutely essential. As a corollary to that, it is the duty of counsel to put all necessary questions, so that questioning by the judge should not normally be required. Where it is required, it should so far as possible be postponed until counsel has finished with the witness. Where there have, as here, been unjustifiable interruptions the appellate court has to assess as best it can the degree of prejudice which has resulted, for it is only where the effect has been to prevent counsel's adequately presenting the defence or where the judge has indicated bias against the defendant that a conviction will be set aside. Although this case has given us great anxiety we are all agreed that the prejudice did not reach the point where we ought to interfere.

18. In the event all the remaining grounds of appeal were relied upon only to the extent that it was said they rendered the verdicts unsafe or unsatisfactory and we point out that any contention not in itself sufficient reason for the court's interfering should not have been included as a substantive ground of appeal. Most of these remaining grounds were so manifestly without substance that we shall not refer to them. It was argued that the learned judge summed up the evidence unfairly in several respects. Thus it is said that he dismissed discrepancies in the police evidence as "not surprising" but emphasised discrepancies in the defence evidence. The truth is that in the passage relied upon for the first limb of this contention the judge was not referring merely to discrepancies in the police evidence but was stating a few words about discrepancies generally, whether in the vidence adduced by the Crown or by the defence. Then it is pointed out that the judge omitted to mention an admission by MOK Fai that part of his evidence was untrue. However, there is no obligation upon a judge to mention every piece of evidence. Had the judge referred to the evidence which was later contradicted in such a way as to suggest that it stood uncontradicted, there would have been a valid objection. Nothing of the sort happened here. On the contrary the judge expressly mentioned a difference between this witness's evidence at the trial from that he gave in the magistrate's court. As to the fourth Applicant it is submitted that his defence was not dealt with at as great length as were the defences of the first and second Applicants, yet Mr. Bernacchi concedes that no material part of the evidence adduced on behalf of the fourth Applicant was omitted. We think that no more was required. Then it was contended that the jury were left with the impression that a statement by the first Applicant referring to the second Applicant was evidence against the second Applicant. What happened was this. The first Applicant was asked whether at the time he was arrested he thought the second Applicant had told the police the whole truth and he replied in the affirmative. It is conceded that the question was not open to objection and that no objection was in fact taken. This question was asked because the prosecution sought to establish that the first Applicant, at the time he made his statement, believed that the police knew what had taken place so that his confession was the result of thinking a donial to be bootless and not the result of inducement by the police, as suggested in examination-in-chief. We agree with counsel for the Crown that the second Applicant could not have been prejudiced by this quotation of an admissible question and of the answer given to it; it did not implicate the second Applicant in any way.

19. The last matter upon which we intend to comment is the allegation that the learned judge himself gave evidence of comparison of handwriting. In our view the allegation is entirely without foundation for what the judge sought to do was no more than to refer to variations which had been the subject of evidence by Dr. Edgley. Unfortunately in doing so the judge used the phrase "personal variations". when what he meant was "natural variations" as distinct from "personal characteristics". We do not think the jury would have been misled: it was common ground that the documents to which the judge was referring were all written by the same hand.

20. For the reasons we have given the applications of the second, third and fourth Applicants are dismissed. Treating this as the hearing of the first Applicant's appeal, we allow his appeal, quash the conviction and he is discharged.

22nd March 1974.

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