Lam Po @ Lam Po Tai and Others v. The Queen
Read the full judgment text of CACC 484/1971 on BabelCite. This Court of Appeal judgment was delivered on 21 February 1972.
2. On the early morning of 12th January 1971 the house in question, traditionally-built four storey Chinese type of building, was so badly damaged by fire that the whole building collapsed on to the ground floor. Eleven people, of whom the deceased was one, died in the fire, their escape or rescue being rendered impossible because the fire spread rapidly and had been started near the locked iron grill front door of the house, there being no rear exit. A number of factors contributed to the feroc
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CACC000484/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 484 OF 1971 -----------------
----------------- Coram: Rigby, C.J., Huggins and Leonard, JJ. Date of Judgment: 21 February 1972 ----------------- JUDGMENT ----------------- Leonard, J.: These are application on the part of the first and second appellants (to whom we hereafter refer as the 1st and 2nd accused respectively) for leave to appeal against convictions on charges that they and others on the 12th day of January 1971 unlawfully and maliciously set fire to a house known as 139 Connaught Road Central with intent to injure or defraud and that at the same date and place they murdered Leung Chuen, (hereinafter referred to as "the deceased") and on the part of the third appellant (to whom we hereafter refer as "the 4th accused") for leave to appeal against convictions of arson and manslaughter on the same charges. The third and fifth accused were acquitted of the same charges. The Background 2. On the early morning of 12th January 1971 the house in question, traditionally-built four storey Chinese type of building, was so badly damaged by fire that the whole building collapsed on to the ground floor. Eleven people, of whom the deceased was one, died in the fire, their escape or rescue being rendered impossible because the fire spread rapidly and had been started near the locked iron grill front door of the house, there being no rear exit. A number of factors contributed to the ferocity of the fire and the speed with which it caught hold - in particular the age of the building, and the fact that there was a light-well running from an open space on the ground floor right through the floor storeys of the building. A passage from in the front of the building where the fire was started combined with this light-well to operate as a flue through which the fire ran with unusual speed. 3. The deceased carried on an electrical business under the style of Chuen Sing Electrical Store, in a stall outside the ground floor of the house. During the night this stall was closed by means of wooden shutters and the deceased was in the habit of retiring into a cockloft above but behind his stall through the iron grill front door. This fact was known to, or could easily have been ascertained by, the first and second accused. 4. An investigation immediately revealed that the fire had not been started accidentally. Two separate "seats of fire", that is, places where initial burning had taken place, were discovered: one on tiling underneath the wooden flooring of the Chuen Sing Electrical Store, the other on the inside of the wooden jamb about three feet from the bottom of the iron grill door at the entrance to the premises. Expert evidence was given to the effect that the latter "seat of fire" could have been caused by inflammable liquid having been thrown on to the jamb. The door consisted of vertical iron bars behind which was a metal sheet. The metal sheet did not extend to the full height of the door but stopped short about six feet from the bottom leaving an area of doorway open for ventilation purposes at the top. It was the case for the Crown that the seat of fire found on the door jamb must have been caused by someone deliberately splashing petrol on to it from outside the house. Be that as it may, fire inside and outside the grill do r must effectively have prevented those inside from unlocking it. The seat found at the platform of the stall was consistent only with inflammable liquid having flowed under the platform. Immediately after the commencement of the fire a witness Chan Kwai Him, the owner of a neighbouring stall, had seen fire coming from a Caltex oil tin on the foot path at the entrance to the premises. The tin was found near the site when the fire had been put out. 5. The bodies of the deceased and others who died in the fire were found in the back of the house where they had apparently been driven by the desire to escape from the fire. The Pathologist Dr. Ong found that the deceased died as a result of suffocation caused by the collapse of the building. The Statement of The First Accused 6. At about noon on the day of the fire the first accused was interviewed by the police. Having explained how he had come to be a partner of the deceased in the Chuen Sing Electrical Store in July 1970 he stated:
Thereafter the first accused was appropriately cautioned in the presence of a more senior police officer and went on to say:
The Witness Ko: 7. A witness KO Kam-yau gave evidence in the court below of a number of meetings between himself and the first and second accused during the week before the fire. His evidence while clear as to essentials was unsati sfactory in that he contradicted himself and was uncertain about the times and places at which various matters were discussed and agreed. He stated that at an early meeting the first and second accused agreed that the deceased should be given a "big kettle of fish to enjoy". At this meeting the second accused said "It is easy. That can be fixed up with several hundred dollars." whereupon the first accused agreed to pay or to credit the second accused for debts owed by the second accused if the second accused arranged that the deceased should be hit on the head so as to be disabled. 8. On the 10th January 1971 in the early morning the deceased was hit on the head but not so seriously as to disable him. 9. Ko also gave evidence that at a meeting which took place about the same time various other suggestions to injure or embarrass the deceased were made by the second accused. The first of these was that heroin should be planted on the deceased so that he would be arrested. To this the first accused demurred stating that the deceased was not a heroin addict. Thereupon the second accused suggested planting a large packet (to suggest that the deceased was trafficking in heroin). The first accused did not agree to this and reverted to the suggestion that the deceased be hit on the head. At a further meeting the second accused reported to the first accused that the deceased had been hit on the head. The first accused disbelieved him and the second accused said: 10. "If you are still aggrieved, throw him with kerosine." to which the first accused replied, "well, it is really a big kettle of fish. Then the whole building would be gutted. How about cripple - hit - how about hit his leg and then cripple him and that is the end of it?" The second accused had then said that some people would be fetched to burn the deceased with kerosine but did not say when this was to be done, and to this suggestion the first accused did not reply. Ko met the first accused at about 11 p.m. on the night of the 11th January 1971 and gave him a receipt which he had obtained from a servant of the deceased for goods removed by the deceased from the premises of the first accused. When KO was leaving the first accused sometime after 11 p.m. that night (that is a matter of four or five hours before the fire broke out), the first accused had said that he was very much aggrieved, exasperated and that kerosine would be used to pour on him. Ko did not know on whom or when the kerosine was to be poured. 11. Ko was cross-examined at length by counsel on behalf of the first accused and by counsel on behalf of the second and fourth accused, but if was never suggested to him that the first accused had not said some four or five hours before the fire broke out that "kerosine would be used to pour on him". The Petrol Station Attendant 12. According to Lo Hung, an attendant at the Caltex Petrol Station in Wan Chai, early on the morning of the 12th January 1971 three or four people came to the petrol station. One of them, whom he identified as the first accused, informed him that their car was out of petrol and bought one gallon of petrol in a tin similar to that found at the secne. This witness explained that he had been interviewed by the police the day after the fire and had told them that he would be unable to remember to whom he might have lent out a tin of petrol the night before. A week or ten days later he had been approached by other police officers and had said that he thought he could identify these to whom he gave the tin and the petrol. At identification parades he identified the first and the fourth accused as having been at the petrol station that night. The evidence as to the manner in which the identification were made at the parade was not entirely satisfactory and considerable criticism of this witness's evidence generally was made by counsel in the course of trial. This witness did not identify the second accused as having come to the petrol station that night although it is not disputed that he did come. The Acid Plan 13. NG Pat-hoi, a fellow employee of the second and fourth accused, gave evidence of a discussion at a billiard saloon in Kowloon in which the second third, fourth and fifth accused took part. At that discussion, the second accused produced, from a black briefcase, a bottle apparently of acid and either the second or fourth accused poke of a plot to cross the harbour to go to a boarding house, stay there and get up at 3 a.m. on the morning of the 12th January 1971 and then throw something at the deceased. This witness was invited to join them and refused to do so. A black briefoase was seen in the possession of the second accused shortly after the fire. 14. Evidence was given by the fifth accused to the effect that the briefcase was in the possession of the 2nd accused immediately prior to the fire, that he, the fifth accused, having stayed in a boarding house until 3 a.m. on the 12th January, had then gone with the second and fourth accused to the house and found it locked, that the second accused had met two others in the vicinity, that he, the second and fourth accused and "a stranger" had gone to the petrol station to get petrol for a vehicle which had run out of petrol; that on returning from the petrol station, he, feeling ill, had not gone to Connaught Road Central but had gone back to the boarding house with the briefcase and found that it did not then contain the bottle of acid. The First Accused 15. The first accused in his defence elected to make an unsworn statement from the dock. In this he spoke of his "exasperation" with the deceased suggesting that the deceased refused to pay him money due from their partnership dealings, of his conversations with the second accused in which he claimed to have done no more than authorise the second accused to beat up the deceased and in which he rejected the suggestion by the second accused to burn the deceased as he still had "lots of goods there". He stated that he said to the second accused "if it is lighted the whole building will be gutted and then many people will die" and "you don't even think of it don't even say anything about it" (it will be noted that these remarks bear a remarkable similarity to remarks quoted by the witness Ko). He went on to state that he regarded what the second accused had suggested as "a passing wind." Nevertheless, he later stated that that night, the 10th of January, he could not sleep but was ill at ease the whole night because of what the second accused had said and that he had looked unsuccessfully for the second accused for the whole of the 11th; that at 11 p.m. on the night of the 11th the met the witness Ko who handed him a receipt issued by Hung Chai a servant of the deceased and he had confided his worries to Ko; that he then returned home to bed and remained there throughout the morning of the 12th until after 7 a.m., that later that same morning he was invited to the Waterfront Police Station where he told the police the "ins and outs" of the affair. In support of the alibi advanced by him in his statement from the dock the 1st accused called his wife and sister-in-law who swore that he had been in bed in his home from 12 midnight on the night of the 11th/ 12th January and had remained there until 7 a.m. on the morning of the 12th. 16. The 2nd accused elected to give evidence on oath and, in doing so, swore that the first accused was on the scene of the fire on the occasion in question and that he went to the petrol station with the second, fourth and fifth accused. The third, fourth and fifth accused also gave evidence on oath; they did not mention the first accused as having been present on the morning of the 12th at the scene of the fire or having gone to the petrol station with them; however, they did mention a "stranger" as having gone to the petrol station and as having returned to the scene of the crime with the second accused. There was no evidence that the fourth and fifth accused had met the first accused prior to the morning of the 12th January. Such evidence as there was on this aspect suggests that the first accused had taken pains not to meet them. In the course of his evidence, for the second accused mentions a meeting at the Golden Cafe with the third, fourth, fifth accused and NG Pat-hoi. He describes how the first accused came to the Cafe but went to a different place in it from the place where he and the others were sitting and how he then joined the first accused and had a conversation with him. Again the second accused describes a meeting of the third, fourth accused and himself at the First Restaurant. When they were seated the first accused entered and went to the toilet where he was joined by the second accused. They spoke in the toilet. The first accused never met the third and fourth accused. Therefore, if the third, fourth and fifth accused met the first accused on the morning of the 12th January they may well have met him as a stranger. 17. Hence the principal evidence against the first accused was the evidence of the witness Ko - as to the various proposals to cause injury to the deceased having been made to the first accused - one approved and others vetoed, - and that some four or five hours before the fire the first accused knew that kerosene was to be thrown on the deceased - coupled with the statements which he made to the police in which he admitted animosity against the deceased, admitted planning to cause him harm but denied his presence on the soene on the 12th of January 1971. Finally there was his identification by the petrol station attendant. In his favour was the evidence as to the alibi, his own statement from the dock and the failure of the third, fourth and fifth accused to put him at the scene of the arson. The Second Accused 18. The evidence against the second accused was even more compelling. It consisted first, of the evidence of the witness Ko who stated that the second accused was the person who made a number of proposals for injury to the deceased on the 9th or 8th of January. One of these involved burning of the deceased and elicited a warning from the first accused that to set fire to him would cause the entire building to be gutted. On his own admission, both in statements to the police and when giving evidence from the witness box, the second accused was clearly on the scene at the time the fire started. Late on the night of the 11th or early on the morning of the 12th, he had booked in at a boarding house in Hong Kong with the third, fourth and fifth accused. There he had remained until 3 a.m. Thereafter he had gone to the scene of the fire and there had met two people one of whom he stated was the first accused and one a stranger. The third, fourth and fifth accused speak of meeting one of two strangers there and of going with him to the petrol station, when giving evidence in the witness box the second accused stated that he went across to Hong Kong on the night of 11th on the instructions of the first appellant. He then had with him corrosive acid. The general tenor of his evidence was to the effect that he went to the petrol station to get petrol for a car which had run out of petrol, that then he returned to the premises where the fire took place with keys given to him by the first accused to enable him to gain entrance to them in order that he night steal from the deceased's dwelling or stall a chop and a post dated cheque for the first appellant. He had arranged with the first accused that if he were to succeed in opening the lock with the keys he was to signal once with a torch. If he failed he was to singal twice. He said that it was when he head found he was unable to open the door and had commenced to signal that he heard a noise "like pouring tea" and found himself surrounded by flame, fell ever a box and was burned. He was asked by the Court whether it was before or after he had been to the petrol station that the first accused had asked him to open the door with the keys and answered "That was before, my Lord." His counsel then said "But you actually ...." and he replied "My Lord, what I meant was before I went he had not handed me but after I returned he gave me". 19. The second accused had made several statements to the police under caution. In the first he said:
Later in answer to a question as to which was the door that was on fire he said: "It is not the iron grill, door that I saw was on fire but it is the main door of the shop on fire." In a later statement to thepolice made in hospital he said as follows:-
20. When one considers the seat of fire found on the inside of the jamb of the iron grill door the various accounts given by the second accused as to how the fire started appear unlikely. If the fire had been laid when the second accused was trying the lock on the door then fire could scarcely have started on the jamb of that door unless the petrol had been thrown past the second accused through the bars at the top. The Fourth Accused (Third Appellant) 21. The fourth accused also gave evidence on oath. He swore that on the night of the 11th January 1971 he, the second, third and fifth accused crossed the harbour. The second accused had earlier told him that "the boss was not happy" with the fact that the deceased had been merely hit on the head on the first occasion and said that therefore his boss had rung to him to go to deal with the deceased on that night. They chocked in at the Tai Koon Hotel where they remained until 3 a.m. In the course of the evening he had been told by the second accused that the deceased would be injured with acid and he (4th accused) had said he would have nothing to do with it, whereupon the second accused had said:
Shortly after 3 a.m. he, the second and fifth accused had left the hotel and gone to the Macau Ferry Pier. Then they went to 139 Connaught Road Central. The second accused went in, while he and the fifth accused were still at the entrance. The second accused returned to them and told them that the door was locked. Then they returned to the ferry pier. Two strangers came and the second accused said that one of them was his boss. After speaking to the two strangers the second accused said: 22. "My boss has new changed his plan to go and steal ....." The second, fourth and fifth accused went with one of the two strangers to a petrol kiosk and purchased petrol. They then returned to 139 Connaught Road Central. He, the fourth accused, was then sent away to keep watch but, before he did so, he saw the stranger who had gone to buy petrol hand a bunch of keys to the second accused. He went to the corner of the block, heard a noise behind him, turned around and saw the fire. He then saw the second accused run out and found that the second accused had been burned and assisted him from the scene. They then returned across the harbour in a walla-walla and went to a massage establishment where the 4th accused was heard to remark that had he not been there to help the second accused he could not imagine what would have happened to him. He did not go to work on the 14th nor on the 12th. He did not go to work nor did he go home, until he was arrested, because the police were looking for him in connection with the arson case. The evidence for the Crown was that on his arrest he made a statement to the police and that this statement was made voluntarily. The statement was admitted in evidence and read as follows:-
The most important distinction between the case against the fourth accused and that against the second accused was that there was no evidence that the fourth accused know the probable consequences of lighting the fire in question. The fourth accused was not present when, according to the evidence of the witness Ko, the second accused had been warned by the first accused that the setting fire to the deceased would cause the whole premises to be gutted. Furthermore the fourth accused, unlike the first and second accused, had no knowledge of the topography of the premises in question. He had no knowledge that there was no rear exist from them. Grounds of Appeal of First Accused 23. The first grounds of appeal on behalf of the first accused were as follows: (1) the learned trial Judge ought not to have left it as an issue to the jury as to whether, if the first accused was not in fact present at 139 Connaught Road Central on the night of the 12th January 1971 the first accused nevertheless "organized" or "planned" or "originated" the burning; (2) the learned trial Judge misdirected the jury in law when he directed them that if the first accused had approved the said plan devised by somebody else he was just as guilty of arson as that other person. 24. At the hearing of the appeal it is clear that the essential complaint of counsel for the first accused on the first and second grounds of appeal was that the learned trial Judge had when summing up to the jury failed to distinguish the evidence which went to show that the first accused counselled or procured the burning from the evidence that he himself had carried it out. He argued that if one could say that the jury had convicted on the basis of a finding that the first accused was present at 139 Connaught Road Central at the time the fire was started the verdict could safely stand bout not on the way the case was summed up. The Crown, he suggested, had relied on alternatives, the first being that the first accused had counselled or procured the commission of the offences of arson and murder; the second being that he was a participant actually present when the crime was committed and assisted in its commission and, he argued, these alternatives were not sufficiently distinguished by the trial Judge. Failure to distinguish them was, he suggested, fatal because of the evidence suggesting that the assault contemplated was one in which acid should be thrown, not one in which the deceased should be burned. There was, he contended, no evidence that a fire was organized, planned or originated earlier than at the ferry pier when, after conversation, the second, the 3rd, fourth accused and the stranger left to purchase petrol. The learned trial Judge in discussing how the jury should approach the case if they were not satisfied as to the presence of the first accused at the scene of the fire, directed them as follows:
We are satisfied that if there had been no evidence as to the presence of the first appellant at the scene of the fire (i.e. if he had not been identified by the petrol station attendant nor placed on the scene by the second accused) ...(illegible) - there was sufficient evidence to leave to the jury as to whether he had procured or counselled the arson, intending grievous bodily harm to the deceased. If it be assumed that he was not present on the scene no exception could be taken to the passages of the summing up I have just quoted for it will be noted that in those passages the learned trial Judge is referring to the crime of arson only. It is much later in his summing up that he directs as to murder having instructed the jury not to consider the charge of murder unless already satisfied on the charge of arson. 25. The third ground of appeal argued on behalf of the first accused, which is closely connected to the first ground, was that the learned trial Judge ought to have directed the jury that unless they were satisfied beyond reasonable doubt that the first appellant was present at the Caltex petrol station at Hennessy Road on the night of the 12th January 1971 they ought to acquit the first appellant of the charges against him. The reasoning behind this argument would appear to be that the learned trial Judge failed to refer in the course of his summing up to what we have called the "Acid Plan", The conversation overheard by NG Pat-hoi in which the second, third, fourth and fifth accused were concerned took place on the afternoon of the 11th January 1971. There was no evidence that this plan had been abandoned at the time the first, third, fourth and fifth accused crossed the harbour. If this plan was then in contemplation, counsel argued, the jury could not be sure that the first accused had counselled or procured arson unless he had at least been to the Caltex petrol station. His presence at the station was the only evidence that he was concerned on the 11th or 12th of January 1971 with arson. This reasoning ignores the evidence of Ko that the first accused had originated the first attack on the deceased and that late on the night of 11th January 1971 he had said that he was exaspe ated and that kerosene would be used to pour on him". This, coupled with the first accused's leadership, his statement to the police that he said that he had feared that the second accused might by mistake hit the deceased to death constituted sufficient evidence to let the case go to the jury on the basis that the first accused was not present in Hong Kong on the morning of the 12th January, 1971. It is correct that the learned trial Judge failed in his summing up to refer to the Acid Plan but in view of the length of the trial and his obvious desire to avoid confusion to the jury, this omission was a natural one. In our view it was not a fatal omission. One must not lose sight of the fact the first count of which the first accused was found guilty was arson. 26. The fourth ground of appeal argued on behalf of the first accused was the fifth in his amended grounds. It was: "in view of the unusual and abnormal consequences of the fire the learned trial Judge ought to have directed the jury that unless they were satisfied beyond reasonable doubt that the first appellant had intended death or grievous bodily harm to the decrased they should not convict him of murder: the Judge's failure in this regard amounted to a mis-direction". The learned trial Judge had said:
Later, he stressed again the necessity for a finding as to the intention to kill or cause grievous bodily harm. That the jury were in no way confused is clear from the fact that they found the fourth accused guilty of arson and manslaughter. To do so they must have made a clear distinction between his intention and that of the first and second accused. Clearly, if the evidence of the witness Ko was accepted any unusual and abnormal consequence of the fire was foreseen by the first and second accused. The third appellant was not a party to that conversation. Presumably it was for this reason that the jury made a distinction in his case and were not satisfied that he had formed the intention to cause grievous bodily harm to the deceased. 27. As to the first accused's final ground of appeal, namely, that there should have been a specific direction that it would be dangerous to convict the first accused unless the evidence of the second accused as to his presence at the scene of the crime was corroborated. We know of no authority which can support such a preposition. What is required, as a matter of practice which amounts to a rule of law, in the case of an accomplice called to give evidence on behalf of the prosecution is a warning that it would be dangerous to convict unless corroboration is forthcoming on a material particular or, as the learned trial Judge put it: "independent evidence of some material fact which implicates the accused and tends to show that he is guilty of the offence". The ground of appeal as framed suggests that the corroboration desired is to be of a specific material particular. ouch a requirement exists in the case of rape where the only issue is consent but we know of no ground for extending it as suggested by counsel. Further more, the necessity for a warning to be given when the accomplice is a co-accused is recognized only as a rule of practice. The practice is by no means so universal as to have acquired the force of law. In Davies v. D.P.P. ([1954] A.C. 578) Lord Simonds L.C. is quite unequivocal on this point and states: "the rule ..... applies only to witnesses for the prosecution". In Russell's Case ([1968] 52, C.A.R. 147), Dipleck L.J. deals with the position where a co-accused gives his evidence at page 150:
In our view the learned trial Judge in giving the warning in general terms as he did amply satisfied such a requirement of practice as exists in the case of co-accused's evidence. For these reasons we would dismiss the appeal of the first accused. Grounds of Appeal of Second Accused 28. Counsel for the second accused relied in all on nine grounds of appeal. We deal with these in the order in which they were presented to us. The first complaint was that "the learned trial Judge did not adequately explain to the jury the meaning of the expression onus of proof" in criminal cases and in particular in correctly directed the jury on the meaning of the expression "beyond reasonable doubt"; the second was that the trial Judge did not put the defence of the second accused. 29. The learned trial Judge at an early stage in his summing up stated as follows:-
Counsel for the prosecution and for both the first and the other defendants had addressed the jury at some length on reasonable doubt and still earlier in his summing up the learned trial Judge gave a eneral approval to the law as enunciated by them. 30. Again, when summing up with reference to circumstantial evidence, he says:
Again in dealing with the defence of diminish responsibility raised by the second appellant he said:-
He emphasized this at the end of his direction in diminished responsibility when he said in words most generous to the second appellant:
Finally, towards the end of his summing up he said:
Counsel for the second appellant draw our attention to the case of Reg v. Hepworth & Fearnley ([1965] 2 Q.B.600). In that case Lord Goddard C.J. said at page 603:
With all respect to the learned Lord Chief Justic the whole basis for the requirment of unanimity in a jury's verdict is that one juror may hesitate over something and another member might say that that would not cause him to hesitate at all. Looking at this summing up in its entirety and having regard to the passages we have quoted above we have no doubt but that the jury must have been aware that they must be sure of guilt before they could convict. 31. Counsel for the second accused complained that the trial Judge only dealt with his defence by way of comparison with other evidence offered. This is undoubtedly true. Counsel, however, does not contend that any significant part of the second accused's defence was left out. What he complains of is that the case was put in a way which does not 'do justice' to the case of the second accused. We are unable to find that this is so. The second accused's case was fully put by way of comparison, perhaps not in a way which the second accused might have wished, but, certainly in a clear and complete way. Counsel has further suggested that having elected to deal with the case for the second accused by means of comparison and contrast the trial Judge should have gone on to point out that all the second accused had to do was to raise a reasonable doubt. 32. We do not consider that it was incumbent on the learned trial Judge to give an express direction that all the second had to do was to raise a reasonable doubt. This is inherent in the directions as to the onus of proof which he did give. 33. The third ground of appeal raised by counsel on behalf of the second accused was that the learned trial judge was guilty of a material non-direction, amounting to a misdirection, in that he failed to direct the jury that there was evidence on which they could find that KO Kam-yau and NG Pat-hui were accomplices. If they did so find that they were accomplices then he failed to warn the jury of the danger of convicting on their evidence without adequate corroboration. Counsel further complains that, in such circumstances, the learned trial Judge not only failed to direct the jury that the evidence of accomplices (if, indeed, they so found that KO Kam-yau and NG Pat-hui were accomplices) could not corroborate one another, but he specifically went on to say that if they considered the co-accused were accomplices of each other then they could look to such witnesses as KO - if they believed their evidence, for the type of independent witness which would or could corroborate the testimony of the accused - ass ...(illegible) ming they found the accused to be accomplices of one another. Undoubtedly, that would have been a fatal misdirection if there was, in fact, evidence upon which the jury could find either or both KO Kam-yau and NG Pat-hui were accomplices. There was certainly evidence from which the jury could infer that the witness Ko was an accomplice to an assault which took place on the morning of the 10th January 1971. The evidence of the second accused was clearly to the effect that after the morning of the 10th January 1971 he never saw the witness KO Kam-yau. The second accused further said in evidence that on the 11th of January 1971 the witness NG Pat-hoi was with him and the third, fourth and fifth accused in a billiard room when he (the second accused) produced a bottle of acid. There was conversation about this acid and later NG Pat-hoi had dinner with him. They left after dinner to cross the harbour and NG Pat-hoi did not go with them. There is, so far as we can determine, no suggestion that at any time either Ko or NG Pat-hoi was privy to any plan to assault the deceased or to commit arson in respect of the deceased's premises on the 11th or 12th of January 1971. The only question, as we see it, then, was whether it could possibly be said that Ko's acquiescence in the agreement entered into on the night of the 9th January 1971 that the deceased was to be assaulted could possibly make him an accessory to the arson and murder of the 12th January 1971. The assault agreed upon on the night of the 9th of January 1971 actually took place early on the morning of the 10th. Thereafter, so far as Ko was concerned, the only suggestion was that he was to obtain a receipt from Hung Chai, the servant of the deceased, for goods which had been removed from the first appellant's promises. There is no evidence whatsoever that NG Pat-hoi was in any way criminally involved whether in the first assault, the acid plan or final act of arson. It is quite clear from Davies v. D.P.P. (Supra) that the courts are now reluctant to extend the term 'accomplice' beyond the three categories mentioned in that case. These three categeries are: firstly, persons who are participes criminis in respect of the actual crime charged; secondly, receivers; thirdly, people giving evidence of crimes identical in type, committed on other occasions, in which they are participes criminis, when evidence of such similar crimes is geven as proving system and intent and negativing accident. Lord Simonds L.C. unequivocally stated:
The reluctance to extend the term was very clear in that case forthe person, Lawson, whom it was proposed should be regarded as an accomplice, was definitely an accomplice to the crime of assault on the deceased committed with the accused, Davies, when the latter stabbed the deceased to death. Lawson did not know that Davies had a knife on him and was therefore not an accomplice to the charge of murder. Had the charge been a lesser charge the learned trial Judge in that case would have been obliged to give the usual warning. Since the charge was one of murder he was not obliged to do so. This anomaly is commented on by Professor Glanville williams in "Proof of Guilt." (2nd Ed. at 138). He goes on to say:
In this case if Ko was an accomplice at all he was an accomplice only to the crime committed on the 10th of January. That Ko was particeps criminis to the offences of arson and murder was never suggested in the Court below. Counsel for the first accused treated him throughout as a witness of truth while counsel for the second accused, when cross-examining him, put the following questions to him:
There was one illuminating facet of Ko's evidence in so far as he might be suspected of having been an accomplice to the arson and murder. His friend Chui, a servant of the deceased, who also died in the fire, had invited him to spend the night in the house. This invitation he had refused because he felt embarrassed as he was not employed by the deceased. Therefore, there was nothing in Ko's evidence to suggest that Ko was an accomplice in the arson and murder and such evidence as there was on this question pointed the other way. It was presumably because he had in mind the possibility that ...(illegible) once tainted that the ...(illegible) trial Judge directed the jury in the following terms:
That direction appears to us to be adequate when read in the light of Davies v. D.P.P. (supra). 34. The second accused's fourth ground as argued was that the learned Judge confused, and/or misdirected, or, alternatively, did not adequately direct, the jury as to the intention required to constitute murder, but on the contrary left the jury with the impression that to intend and to foresee are synonymous. That part of the summing up of which the second accused complained in this fourth ground of appeal reads as follows:
Reading this passage as a whole, notwithstanding that early in the passage the word 'foresee' is treated as synonymous with the word 'intend', the jury must have understood that it was with the personal intention of each accused that they should concern themselves. If, in the circumstances of this case, either the first or second accused set the fire, or authorized it to be set, foreseeing that the fire was likely to cause grievous bodily harm to a particular individual, then that accused must personally have intended to cause that harm. In our view it cannot be suggested that the learned trial Judge was here advocating an objective test. Indeed, towards the end of his summing up he makes it very clear that he was not when he says:
The fifth ground of appeal was: "There were admitted in evidence by a Crown witness (NG Pat-hoi) facts which, if believed, would have been strongly against the appellant, and the more fact that the jury were subsequently directed by the Judge that this evidence was not evidence against the second appellant was not enough to remove the unfavourable impact of the evidence on laymen." This witness had met the third, fourth and fifth accused persons after the fire. When he was in conversation with them one of them said that CHU Yu-wa (the second accused) went to buy petrol and cotton waste, soaked the cotton waste with petrol and set the fire.
At this stage counsel for the second accused objected and asked for a ruling as to whether this evidence was admissible. The trial Judge ruled that it was inadmissible as against the second and fourth accused but that it contained ingredients for the consideration of the jury in relation to the third and fifth accused. There and then the learned trial Judge told the jury:
and went on to tell them why it was inadmissible against the second accused. 35. When the witness was cross-examined it appeared that the evidence which he had given earlier was really evidence of two conversations. The trial Judge then ruled that the earlier conversation (that referring to the actions of the second accused) was inadmissible against any of the accused. On the occasion of each ruling he promised to "come back to this" when he summed up. He made no allusion to it in his summing up. After the second ruling had been given counsel for the first accused sought to obtain leave to cross-examine about the two conversations suggesting that since no one had suggested during the conversations that his client was on the scene of the fire the conversation went far to exonerate the first accused. The first question asked by counsel for the first accused was in the following terms:
This was immediately after the ruling that that statement was inadmissible against the second accused but admissible in favour of the first accused. Counsel for the second accused (before us but not in the court below) objected strenuously to the way this question was put: and we sympathize with him. It was appallingly inept. The question could, and should have been put in phraseology much less harmful to the 2nd accused. However in fact little harm can have been done by it to the second accused since the trial judge had, moments before, made it clear that the conversation could not be evidence against the second accused. He did not refer to the matter directly in his summing up. Probably he did not wish further to embarrass the second accused. He did, however, when discussing the exhibits refer to the written statements made by the fifth accused and said:
Now, if the conversation which formed the basis of the fifth ground of appeal was in the mind of the jury when they deliberated, with it was the ruling that it was not evidence against the second accused, coupled with that direction. We do not consider there is any valid ground of complaint here. 36. The sixth and seventh grounds of appeal argued were that "the convictions were unreasonable and/or cannot be supported by evidence, in particular, that there was no evidence and/or no credible evidence of guilty intent and that I never had any intention of killing or doing grievous bodily harm by fire to the deceased "and" further or alternatively that the bulk of the evidence of intention was given by witnesses whom the jury must have disbelieved to have acquitted the fifth defendant." to consider that there was ample evidence of intention on the part of the second appellant and his case was clearly distinguishable from that of the fifth accused. Counsel argued these grounds with reference to the fourth accused who had been found guilty of manslaughter rather then with reference to the fifth accused but the case against the 2nd accused was distinguished from that against the fourth accused by the evidence of the witness Ko that the first accused had warned the second accused of the probable consequences of setting fire "The whole building will be gutted". 37. As to the eighth ground of appeal that the verdict of guilty of murder was not unanimous, it is clear that the verdict of the jury was meticulously taken by the clerk to the trial Judge. The verdict was stated to be unanimous by the foreman in the presence of all the jurors. Counsel for the second appellant invited us to look at a statutory declaration from a juror to suggest that in fact the jurors were not unanimous. However, the authorities which counsel quoted very fully supported the proposition that an appellate court is not entitled to go behind the verdict of a jury, delivered through the foreman of the jury, in open court. 38. The final ground of appeal was that the learned Judge unconsciously prejudiced the second appellant's defence by interrupting counsel, mainly during his corss-examination of the Crown witnesses, and erred in law by not permitting him to cross-examine on unfavourable answers given in such cross-examination. It will be remembered that this case was of considerable complexity. It was not rendered more simple by the constant refusal of counsel to abide by the Practise Direction made by the then Chief Justice in 1906 (Vide H.K.L.R.70) or to accept interpretation given by the sworn court interpreter. Nevertheless, in our view, so far from interrupting counsel frequently, the learned trial judge displayed exemplary patience throughout this lengthy and, at times, obviously wearisome and tedious trial. To suggest that the learned trial judge, by the questions he, from time to time, put to the various witnesses, prejudiced the defence of the second appellant is to us quite unacceptable. For these reasons we can find no substance in this appeal by the second appellant. 39. The third appellant's sole ground of appeal that there was no sufficient evidence on which to found the conviction does not merit consideration; nor did he urge anything before us suggesting that the conduct of the trial was not entirely regular insofar as he was concerned. 40. In the result we are satisfied that the applications of all these appellants for leave to appeal against their convictions must be dismissed. Representation: ...(illegible) K. Litton, Q.C. & G. Willis (David Tsang & Co.) assigned for 1st appellant. B. Bernacchi, Q.C. & p. Fung (H.H. Lau & W.S. Lo) assigned for 2nd appellant. 3rd appellant in person. Lucas, Ag. D.D.P.P. for Respondent. |