HKSAR v. Lee Kwan Kong and Others

CACC 198/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 198 OF 2004

(ON APPEAL FROM HCCC NO. 216 of 2003)

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BETWEEN

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Before:   Hon Stuart-Moore VP, Stock JA and Burrell J

Date of Hearing: 10 November 2005

Date of Judgment: 1 February 2006

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J U D G M E N T

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

Background

1.On 31 March 2003, Yung Cho-hing (the deceased) aged about 42, died as the result of multiple injuries.  Lee Kwan-kong (D1), Mach Sindy (D2) and Lam Wai-kit (D3) were jointly charged in the 1^st count of an indictment with his murder and, on 11 May 2004, following a 20-day trial before V Bokhary J, each of them was convicted by the jury.

2.At the outset of the trial, on 13 April 2004, D1 entered a plea of guilty on this count to manslaughter which the prosecution rejected.  Similarly, on 19 April 2004, D3 pleaded guilty on the 1^st count to manslaughter but this was also not accepted by the prosecution.  Although D2 did not plead guilty to a lesser alternative offence on count 1, her defence at trial was run on the basis that her guilt extended only to assaulting the deceased thereby occasioning him actual bodily harm.  Her offer to plead to this as an alternative to murder was also rejected by the prosecution.

3.Following the killing on 31 March 2003, D1, D2 and D3 each became a party to a cover-up when they engaged in the removal of the deceased’s body and a number of articles from the original crime-scene in an endeavour to distance themselves from the killing.  This activity was covered by a 2^nd count on the indictment in which Li Wai-yan, Jessica (D4) was also charged (together with a 5^th defendant (D5) who pleaded guilty to it).  This count, to which D1, D2 and D3 all pleaded guilty at various stages, alleged a conspiracy to pervert the course of public justice, contrary to Common Law and sections 159A and 159C of the Crimes Ordinance, Cap. 200.  On 11 May 2004, D4 was convicted by the same jury which tried the 1^st count of murder and, on the following day, she was sentenced to 4 years’ imprisonment.

4.D1, D2 and D3 now seek leave to appeal against conviction for murder whereas D4 seeks leave to appeal against her sentence on the 2^nd count.

Brief overview

5.It was the prosecution’s case that the deceased had been living in the same flat as the two female applicants, D2 and D4.  D2 referred to D4 as her “wife”.  Their premises were situated at Flat C on the 2^nd floor at 238 Chatham Road North in Hunghom whereas D1 and D3 (as well as D5 who was D1’s girlfriend) were neighbours in Flat B.

6.The deceased, who was approximately 20 years older than any of the applicants (and D5), was first assaulted by D2 before one of the others joined in the assault inside Flat C.

7.Some time later, the attack on the deceased moved to Flat B where D3 admitted joining the attack on the deceased in D2’s presence.

8.Later, after the deceased had gone back to Flat C, D2 and D3 took part in assaulting him.  D2 then went to her room to sleep.

9.Thereafter, further attacks on the deceased took place in Flat B in which D1 and D3 were involved.  The deceased was later found by D3 lying in Flat B, showing no signs of life.

10.The prosecution accepted that D1, D2 and D3 had not intended to kill the deceased but it was alleged that their attacks on the deceased were so brutal and so sustained that their intention could only have been to cause him really serious bodily harm as the result of which he had died.

11.All of the evidence at trial came from prosecution witnesses as none of the applicants went into the witness box and no witnesses were called on their behalf.  Much of the prosecution’s case against D1, D2 and D3 was built upon the admissions made by each applicant in the course of video-recorded interviews conducted by the police on 2 and 3 April 2003.  The guilty pleas which were either offered or entered to both counts on the indictment by D1, D2 and D3 provide a sufficient indication for present purposes that many of the facts in the case were not in dispute.

12.The case for the defence on behalf of D1 and D3 on the 1^st count was presented on the footing that each of them had, by their unlawful acts, killed the deceased but had lacked the intent necessary to establish murder.

13.D2’s case was put forward on the basis that her guilt went no further than an assault occasioning actual bodily harm.  In this regard, we were informed (in the absence of transcripts of the final speeches) that the recollections of trial counsel differ as to whether her counsel specifically addressed the jury on the basis of her “withdrawal” from the joint venture.  However, in the unlikely event that this was not directly referred to by counsel, having regard to the plea which was offered, the answers D2 gave to the police left this open as a possible scenario.  In addition, it seems, from the accounts given by D1 and D3, that the deceased may have received the injuries which were to prove fatal in Room B at a time when D2 was sleeping in Room C.  When she awoke some hours later, the deceased was dead.  On this basis, which by implication can only have meant that she had withdrawn from the joint enterprise before the final and fatal assaults, the offer of a plea of guilty on D2’s behalf to assault occasioning actual bodily harm was made.

14.The deceased’s body was found at 8:45 am on 1 April 2003 in the lane at the back of No.1 Wah Fung Street, Hunghom, some short distance away from the premises occupied by the applicants.  The pathologist, Dr Wong Hon-man, who attended the scene, carried out a post-mortem later that same day.

15.Dr Wong estimated that the time of death was about a day prior to his initial examination at 11:30 am.  Externally, there were numerous bruises, abrasions, lesions and lacerations covering almost all parts of the body.  More significantly, the post-mortem revealed serious internal injuries.  Amongst these, there were multiple fractures of the ribs at the outer front and inner back on both sides with “infiltration of blood in the surrounding tissues”.  These fractures were from the 2^nd to 10^th ribs on the left and right sides at the inner front, fractures on the right side of the 4^th to 11^th ribs at the inner back and fractures on the left side of the 3^rd and 7^th to 12^th ribs at the inner back.  Sharp ends of the broken ribs had punctured the deceased’s right lung in two places.  Dr Wong’s conclusion, drawn from the number of injuries, was that the deceased had died as the result of the cumulative effect of extensive bleeding and dysfunction of various internal organs due to multiple blunt-force impacts.

16.The applicants were arrested by the police on 2 April 2003.

D1’s admissions

17.Looking briefly at the admissions which each of the applicants made to the police, D1 immediately confessed his involvement in the killing saying that he had done it with two others who he later identified in his answers as D2 and D3.  He said that events began when, at about 11 pm to 12 midnight (on 30 March 2003), D2 came over to Flat B and informed both himself and D3 that she had been scolding and beating the deceased who he referred to as ‘Pok Kai’ (drop dead).  D2 had spoken about the deceased saying that he would “resist” if she beat him any further and about how this had made her very angry.  It was then that D1 said that he went with D3 to Flat C where D3 beat up the deceased.

18.D1 denied taking any part in the physical assaults in Flat C during the late hours of 30 March 2003 although he admitted he had been watching when they occurred.

19.According to D1, at about 1:00 am on 31 March 2003, the deceased was asked to go to Flat B where D1 said that the deceased was again beaten by D3 using his fists and he described how D2 had also joined in.  After this, D2, (D4) and the deceased then returned to Flat C and he (D1), D3 and D5 all went to sleep in Flat B.

20.Between 4:30 and 4:45 am, D1 (and D4) got ready to go to work and it was not until about 9:00 am that he returned to Flat B.  Up to this point, D1 had made no admission of any assault upon the deceased.

21.D1 went on to describe how, on his return to Flat B, the deceased was not there so he “knocked at the door of the adjacent flat (Flat C) and saw him”.  He told the deceased to come over to Flat B in order to find out whether he had told anyone at his place of work that he had been beaten at home.  D1 was unable to understand everything the deceased was saying as he spoke with a lisp but D1 said that he began to feel very angry that the deceased was “fooling” him by telling lies.  Only D3 and D4 were present at that time.  He then described the beating which he and D3 gave the deceased which went on from about 9:45 or 10:00 am until nearly 10:30 am at the end of which the deceased was “gasping for air.  The deceased seemed to feel so unwell that (he) could not breathe.”  D1 said that he used a water pipe and that D3 had used a metal, silver-coloured, mop-handle made of aluminium to carry out the attack.  Fists were used when the weapons were dropped.  He also admitted kicking the deceased on the hands, sides and waist and treading on his chest and back “alternating between doing it and stopping” for about half an hour.  D1 admitted he had “randomly” struck the deceased with the water pipe all over the body, including once on his head.  The deceased yelled out and his head was bleeding but he was ignored.  D1 then said he went to take a rest.

22.D1 discovered at about 1:30 pm that the deceased was dead.  He said that he was woken up by D3 and saw the deceased lying completely naked on the floor in Flat B.

23.D1 went out for a time and learnt from D3 afterwards that he (D3) had thrown the mop-handle and the water pipe into the back of a garbage truck and had put clothes back on the deceased’s body.  D1 also described helping later on in the removal of the body.

24.D1 ended his confession to killing the deceased by saying that he had “accidentally and carelessly killed him”.  He said that he had not intended to kill the deceased and that he hoped that the case would soon be finished and that the police would mitigate for him because he did the killing “out of a momentary impulse, a momentary rage”.

25.In the course of his interviews, D1 had described the deceased as a “quiet, timid person who could easily be bullied”, adding that he felt “he (the deceased) did not know how to resist”.

D2’s admissions

26.D2 said on arrest that she had not beaten the deceased to death and that when she awoke from her sleep, he was already dead.  When she went into greater detail, she explained how, after returning to Flat C between 11 pm and midnight on 30 March 2003, she had become “very angry” with the deceased (her “sworn father”) during the night before his death at his refusal to sign an IOU in regard to some $35,000 he was said by her to have owed her.  The deceased had sworn at her and she then scolded the deceased and swore back at him.  She made a “very big scene” and went to Flat B to see who was there.  The people from there then came over to help her scold him.  D2 said that she used a metal pipe to strike the deceased on his left upper arm softly and “symbolically” a few times to give him a lesson “so he wouldn’t be so cheeky”.  According to her, D1 also struck him on his limbs “as he sat there” and, later, they all went from Flat C to Flat B next door.

27.It was then that D3, who she called “Shuk Mai”, joined them.  When D2 told D3 what had happened, she said that D3 grabbed the deceased by his hair and bumped his head against the wall and then began to kick and beat him.  D2 said that D3 then used his foot to stamp repeatedly on the deceased’s chest and used a folding stool to press on his toe.

28.After the beating, the deceased still refused to sign an IOU which again made D2 angry and she said that this made the others think of giving him a “lesson” for her.  Then D1 went across to the deceased “to smash him”.  D1 and D3, respectively, were using, in the assault which followed, a metal clothes-rack pipe and a short aluminium broomstick.  She told D3 not to hit the deceased in the face because she was “only thinking of giving him a lesson” to let him realise he was in debt and “not to kill him”.  Then the sofa was folded back and as the women, D2, D4 and D5 watched, D1 and D3 hit the deceased “in front of the sofa”.  D2 spoke next of trying, with D4 and D5, to “put a hold” on things by pulling D3 away “that is, to stop the beating”.  She said:

“We, being normal people, could feel the tremendous pain, that is, the beating would inflict great pain, so we tried to put a hold … but in vain … they had very great strength, that is, talking about these two boys.  Well, no way they could be restrained … tried to persuade them time and time again, but in vain, well, there’s nothing more that could be done, so we let him keep on beating him, however, it never crossed my mind that he would be beaten to death.” (Appeal bundle pp. 320-321)

29.D2 said that the beating carried on until “sometime after” 5:00 am because, at that time, her “wife” (D4) and D1 had to go out to work.  D3 suggested carrying on the beating in Flat C.  D2 said the deceased walked by himself and was “still very normal by then”.  When they arrived at her flat, D2 said that she picked up the pipe and “struck (the deceased) a few times on his hand(s), leg(s) like that”.  After that, she and Fei Por (D5) sat down and watched D3 beat the deceased with the pipe.  D5 said she was sleepy and went to bed and, when D3 started talking on the telephone, D2 also went to bed.

30.At about 2 pm, D2 said that D5 woke her up to tell her that the deceased had died.  She described herself as “flabbergasted”.  After that, D2 described her involvement in the removal of the body and also the disposal of some of the items which could be connected to the killing.

D3’s admissions

31.On arrest, D3 said that he had not meant to beat the deceased to death.

32.Later, he spoke of being asleep in Flat B between about 1:00 and 2:00 am when D2 told him she had beaten the deceased with an iron pipe.  D3 said that he then kicked the deceased’s chest about 5 times and he described how D1 and D2, respectively, had used a broomstick and an iron pipe when beating the deceased.  This occurred in Flat B.  D3 said that he then “in confusion took [D2’s] iron pipe to beat (the deceased) too”, delivering “about 10 blows” to the deceased’s back while he lay curled on the floor.  The beating lasted until “a little after 3:00 am”.

33.After this, D1 had to get ready for work and D2 took the deceased back to Flat C where the beating continued with D2 and himself hitting the deceased with their fists.  D3 said he had given the deceased “10-odd blows again” on the back and the chest.  The deceased did not fight back at any stage but D3 described him as “very cocky” when asked questions.

34.D3 admitted that he had no idea what the reason had been for meting out this treatment to the deceased but that “it should be about money”.  Later, he enlarged upon this by saying that he had understood from D2 that the deceased had “peeked at his girlfriend in the toilet” at a previous address and “it was said that he (the deceased) was in debt to her for over $70,000”.

35.D3 said that he then spoke (in Flat C) on the telephone to his girlfriend until, at about 7:00 am, he returned to Flat B.  The deceased drank some water and went to sleep on the floor in Flat C.  Meanwhile, D2 had gone to her room to sleep.

36.Then, at about 8:00 or 9:00 am, after D1 and D4 had returned from work, D1 asked the deceased “to come over for a chat”.  The deceased then went over to Flat B again where D3 said that he and D1 began to beat him up again for 3 or 4 minutes by “walloping” him in the back using their legs.  This was after D1 said that the deceased’s “manner was not good and he was cocky”.  D1 punched the deceased in the stomach and, as he lay on the floor, he was walloped on the back.  He added: “then he lay prostrate on the floor”.  At this time, only D4 was present watching.  Later, the deceased vomited in the toilet before going back to sleep at “some time after 9 to 10”.

37.D3 discovered the deceased at about 1:00 pm wearing no clothes and he seemed not to be breathing.  At this stage, he alerted the others.

Respondent’s written submissions

38.The evidence of participation in the attacks upon the deceased was derived entirely from the confessions made by D1, D2 and D3.  These were contained in a bundle of interviews containing nearly 600 pages (with a further 123 pages relating to D4).  Plainly, as none of the applicants gave evidence, and as each confession could only be used as evidence against the person making it, we needed to understand the precise extent to which D1, D2 and D3 admitted their involvement in the alleged joint enterprise.  It is, of course, the respondent’s task to set out its case for the benefit of the court as a whole.  So far as the facts were concerned, the respondent had ample time in which to prepare its outline particularly as Mr Sham not only represented the prosecution in the court below but also appeared in these proceedings.  Nonetheless, the long-standing requirement for a full written argument in advance of the hearing was not met.  Instead, we were presented with a written submission on the facts which read:

“II. The Prosecution’s Case

8.    The prosecution relied on the admissions made by the Applicants as evidence of their presence and participation in the joint enterprise. These admissions were contained in the post-recorded police notebook entries and the interviews which the Applicants had with the police. They are mixed statements.

9.    In short, all three Applicants admitted that they had taken part in the repeated assaults on the deceased over a period of time at two locations, that is, flat B (D1 and D3’s flat) and flat C (D2’s flat). Moreover, all three admitted that in the course of the assaults, a pipe and the handle of a mop were used to beat the deceased and all stated that either they themselves had stamped on/kicked at the chest of the deceased or they were present when such stamping/kicking took place. Further, during the assaults, the deceased did yell and they could see that he was in pain, and at times, the deceased was gasping for air.

10.  During their interviews with the police, all three Applicants denied having any intent to beat the deceased to death. This denial, however, does not matter much in the present case as the prosecution, at the trial, proceeded with the murder charge on the basis of an intent to cause grievous bodily harm, and not an intent to kill. This is also the basis upon which the Judge directed the jury on the murder count.”

39.It goes almost without saying that this summary provided us with no assistance whatever except as an introduction to the detail of the interviews which ought to have followed.  In the event, all that followed, describing the factual basis of the prosecution’s case, was a paragraph setting out the pathologist’s findings at the post-mortem.

40.Each of the grounds of appeal required a detailed analysis of the evidence against each of the alleged participants.  This particularly applied to the ground relating only to D2 where her possible “withdrawal from the joint enterprise” was raised on her behalf by Mr Plowman SC.  The need for such a summary was glaringly obvious, and we regard it as a dereliction of duty on the part of counsel for the respondent to have omitted to provide a proper outline of the case presented against any of the applicants well in advance of the hearing.  Instead, we had to call upon the prosecution during the hearing itself to provide a schedule of this evidence. This was duly produced after the hearing had concluded.  By this stage, however, it was effectively too late to serve any useful purpose.

41.In all the circumstances, it would have been a considerable inconvenience to the applicants, whose counsel had been notified on about 7 March 2005 of the fixed date for hearing, to have adjourned the hearing on 10 November 2005 to enable the respondent’s counsel to do the work which was needed for the proper presentation of his case.  The factual basis of the respondent’s case was fundamental to all the grounds of appeal.  The appellate courts are heavily loaded with cases and there is much to read and prepare.  It is counsel’s task to assist the court and, if that assistance is not given, the result is that the court’s burden is increased by having to do counsel’s work, and that significant increase in work affects an efficient approach to the case and to other cases which need attention.  We express the hope that the circumstances in which we have, unfortunately, had to make adverse comments about the failure of the respondent’s counsel to fulfil his task, particularly in a case of such gravity, will not arise again.

Grounds of appeal (conviction)

42.Two of the principal grounds raised on behalf of D1, D2 and D3, none of whose counsel in these proceedings appeared in the court below, were common to them all.  The third main ground related to D2 alone.

(1)   The “Virtual Certainty” direction

43.Counsel submitted that a direction along the lines recommended in R v Nedrick [1986] 83 Cr App R 267 should have been given.  In that case, the appellant had been convicted of murder after he had set light to the paraffin he had poured through the letter box at the house of a woman to whom he had earlier made the threat that he would “burn her out”.  A child in the house died when the house was burnt down.  The appellant admitted he had started the fire but he stated that he had not wanted anyone to die.  The English Court of Appeal held that the trial judge’s direction to the jury (set out in full at page 269) that if the appellant knew “it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it …… he is guilty of murder” was wrong in that this equated foresight with intent because, citing R v Moloney [1985] 81 Cr App R 93 (and [1985] AC 905), “foresight of consequences, as an element bearing on the issue of intention in murder …… belongs, not to the substantive law, but to the law of evidence”.

44.Importantly, in the context of the present case, the court in Nedrick went on (at page 270) to say:

“What then does a jury have to decide as far as the mental element in murder is concerned?  It simply has to decide whether the defendant intended to kill or do serious bodily harm.  In order to reach that decision the jury must pay regard to all the relevant circumstances, including what the defendant himself said and did.

In the great majority of cases a direction to that effect will be enough, particularly where the defendant’s actions amounted to a direct attack upon his victims, because in such cases the evidence relating to the defendant’s desire or motive will be clear and his intent will have been the same as his desire or motive.  But in some cases, of which this is one, the defendant does an act which is manifestly dangerous and as a result someone dies.  The primary desire or motive of the defendant may not have been to harm that person, or indeed anyone.  In that situation what further directions should a jury be given as to the mental state which they must find to exist in the defendant if murder is to be proved?

We have endeavoured to crystallise the effect of their Lordships’ speeches in R. v. Moloney (supra) and R. v. Hancock ([1986] 82 Cr App R 264 and [1986] 2 WLR 357) in a way which we hope may be helpful to judges who have to handle this type of case.

It may be advisable first of all to explain to the jury that a man may intend to achieve a certain result whilst at the same time not desiring it to come about.  In Moloney at pp. 106, 107 and p. 926 of the respective reports Lord Bridge gave an illustration of the distinction: ‘A man who, at London Airport, boards a plane which he knows to be bound for Manchester, clearly intends to travel to Manchester, even though Manchester is the last place he wants to be and his motive for boarding the plane is simply to escape pursuit.’

The man who knowingly boards the Manchester aircraft wants to go there in the sense that boarding it is a voluntary act.  His desire to leave London predominates over his desire not to go to Manchester.  When he decides to board the aircraft, if not before, he forms the intention to travel to Manchester.

In R. v. Hancock the House decided that the Moloney guidelines require a reference to probability.  Lord Scarman said at p. 276 and p. 364: ‘They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended.’

When determining whether the defendant had the necessary intent, it may therefore be helpful for a jury to ask themselves two questions: (1) How probable was the consequence which resulted from the defendant’s voluntary act? (2) Did he foresee that consequence?

If he did not appreciate that death or really serious harm was likely to result from his act, he cannot have intended to bring it about.  If he did, but thought that the risk to which he was exposing the person killed was only slight, then it may be easy for the jury to conclude that he did not intend to bring about that result.  On the other hand, if the jury are satisfied that at the material time the defendant recognised that death or serious harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result.

As Lord Bridge said in Moloney (p. 106 and p. 925): ‘… the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent.’  At p. 926 he uses the expression ‘moral certainty’; at p. 929 he said, ‘… will lead to a certain consequence unless something unexpected supervenes to prevent it.’

Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.

Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen.  The decision is one for the jury to be reached upon a consideration of all the evidence.” (Emphasis added)

45.From the italicised passages, it is plain that the cases in which a ‘Nedrick’ direction, as it has come to be known, needs to be given will be rare, particularly where a defendant has been involved in a direct attack on his victim.

46.In R v Woollin [1999] 1 AC 82, to which the Lord Lane CJ giving the judgment in Nedrick’s case had also referred, the appellant had lost his temper and killed his son aged 3 months after throwing him onto a hard surface causing the boy’s skull to fracture.  Lord Steyn (at page 95), in a passage to which Mr Plowman SC, on D2’s behalf, attached considerable importance, said in the course of his speech:

“It may be appropriate to give a direction in accordance with Nedrick in any case in which the defendant may not have desired the result of his act.  But I accept the trial judge is best placed to decide what direction is required by the circumstances of the case.”

47.In the present case, the trial judge chose to give the standard direction for murder, making it plain that the prosecution had presented their case solely on the basis of an intent to cause really serious injury to the deceased.  We have not been told that the judge was specifically invited at trial to give a Nedrick direction but, even assuming that she had been requested to do so, we are in no doubt that this was not a case which required such a direction.  On any view, the circumstances of this case reveal an admitted desire on the part of D1, D2 and D3 to cause injury to the deceased.  The jury had to decide whether an intent to cause really serious injury had been established against one or more of them and, if so, whether at the time of such injury they were acting jointly in causing the death of the deceased.  This was, in other words, not one of those “rare cases”, to adopt Lord Lane CJ’s phrase in Nedrick, which required a direction to the effect that the defendant whose case the jury was considering recognised that (death or) really serious bodily harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act.

48.If further support were required for the proposition that a ‘virtual certainty’ direction will rarely be needed, it can be found in R v Moloney [1985] 1 AC 905 at 926 (to which reference was made in Nedrick) where Lord Bridge said:

“The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding.  In trials of murder or wounding with intent, I find it very difficult to visualise a case where any such explanation or elaboration could be required, if the offence consisted of a direct attack on the victim with a weapon, except possibly the case where the accused shot at A and killed B, which any first year law student could explain to a jury in the simplest of terms.  Even where the death results indirectly from the act of the accused, I believe the cases that will call for a direction by reference to foresight of consequences will be of extremely rare occurrence.” (Emphasis added.)

(2)   Balance of the summing up (D1 and D3)

49.It was submitted by counsel for D1 and D3 that the summing up was unfairly weighted in favour of the prosecution.  We have considered the submissions on behalf of D1 and D3 made by Mr Haynes and Mr Tracy, respectively, but we can find no support in their cases for the suggestion that the facts were not fairly and squarely placed before the jury.

50.Mr Haynes, for D1, submitted that the judge failed to make sufficient reference to “D1’s defence or to matters capable of lending some support to that defence” and that, by the repetition of the phrase used by the judge in the summing up that the jury would be “entitled to convict”, the directions to the jury lacked the sort of balance which would have been achieved if they had also been told they were “entitled to acquit”.

51.The defence which was advanced for D1 was limited to an attempt to persuade the jury that manslaughter was the appropriate verdict on the ground that the intent required for murder had not been proved.  The judge directed the jury that there was no evidence of an intent to kill and she went on to state in terms that it was for the jury to decide “in relation to each accused charged with murder, whether he or she intended to cause really serious injury to the deceased” as part of her comprehensive directions on the law of murder.  The jury was also fully directed on the alternative verdict of manslaughter to which topic the judge turned in these terms:

“In respect of each accused facing the murder count, what if you are sure that he or she killed the deceased, but are not sure that he or she did so with intent to cause the deceased really serious injury? In that case, the position is different in respect of the 1st and the 3rd accused, on the one hand, and the 2nd accused, on the other hand. As far as each of the 1st and the 3rd accused is concerned, you should convict him of manslaughter as he asks you to do.” (Appeal bundle p. 29)

52.The judge then went on to give a model direction on manslaughter.  In the particular circumstances of this case, the judge was justified in effectively directing the jury that they should either convict D1 and D3 of murder or of manslaughter because they had each admitted their guilt to the extent, at least, of manslaughter.  In the course of giving her directions in law, the judge adopted the commonly used phraseology that if the jury was satisfied as to the ingredients of murder they would be “entitled” to convict on the 1^st count of the indictment as charged.  The jury was well aware that a manslaughter verdict should be returned if they were not so satisfied.  This phraseology created, in our opinion, no unfairness whatever to the defence.

53.It is unnecessary to go through all the illustrations used by Mr Haynes in support of what he alleged to be an imbalance in favour of the prosecution taken from the summing up.  In one example, he submitted that the judge had “failed to refer to the common ground (if bizarre) element, namely that the victim was, after very minor provocation, regularly assaulted by his flatmates”.  Quite simply, this is not so.  The judge (at page 28 of the appeal bundle) made ample reference to this aspect of the case and invited the jury to consider this as they saw fit, making it plain to the jury that the prosecution had not sought to rely on this evidence but rather that it was defence counsel then appearing for D1 who had done so.

54.A second example of unfairness to which Mr Haynes attached significance was the judge’s phrase that D1’s “out-of-court statements”, uncontested as they were, could be “used against” him.  However, these references were made (at pages 38, 39 and 40 of the appeal bundle) in the context that they must not be used against anyone else and could only be regarded as admissions contrary to D1’s self-interest.  As Mr Haynes conceded, the judge had earlier in the summing up (at page 17) also directed the jury that:

“Each accused’s out-of-court statement or statements contain admissions relied upon by the prosecution against him and her and also things which he or she said in his or her own favour.”

55.It is fair to add, having criticised Mr Sham for his failure to set out the prosecution’s case in coherent form, that he helpfully reminded us of what was said by Watkins LJ in R v Hillier & Farrar [1993] 97 Cr App R 349 at page 354 which was in these terms:

“… It is our experience often, too often, we think, argued unavailingly almost always, in this Court that a judge has not presented properly in summing up a defendant’s defence, after that person has not given evidence. We must make this clear yet again, namely that it is no part of a judge’s duty to build up a defence for someone who has not chosen to give the jury the benefit of his version of material circumstances and events. The judge’s obligation is limited to reminding the jury, in summary form, of what the defendant is said to have stated as to those matters at some time or another pre-trial and what assistance, if any, the Crown’s witnesses have provided.”

56.In the present case, the judge completed the task of summing up D1’s case in a manner which leaves open no justifiable criticism.

57.Mr Tracy, for D3, in a sensible and measured submission did not seek to adopt Mr Haynes’ argument under this ground.  Instead, as an extension to the 1^st ground of appeal, he submitted that a failure to give a direction along the lines suggested in Nedrick left the summing up weighted in favour of the prosecution.  However, in view of the opinion we have already expressed on that ground, it is clear that we are unable to agree with his contention.

58.It follows, therefore, that the submissions made under this ground fail for both D1 and D3.

(3)   D2’s possible withdrawal from the joint enterprise

59.Although Mr Plowman argued that there were several reasons for saying that the summing up lacked balance in D2’s case, his submission about this can be taken together with his main ground that the jury were never directed that “they could not convict [D2] if they thought it possible that [she] had withdrawn from the joint enterprise before the infliction of the fatal injuries upon the deceased”.  A further extension of this argument was, as Mr Plowman expressed it, that the judge had failed “to direct on the circumstances in which the jury could convict on the plea offered [by D2 to assault occasioning actual bodily harm] instead of either manslaughter or murder”.

60.In the summary we have given (at paragraphs 26 to 30 above) of D2’s admitted involvement in the attacks upon the deceased, it is apparent not only that she was the instigator but also that she played a physical part in them on no less than three different occasions.  The first occasion occurred just after she had “scolded” the deceased and went to Flat B to find others to help her.  Thereafter, assaults on the deceased took place in Flat C where she lived.  She described her own part as striking the deceased “symbolically” after which D1 struck him on the limbs.  The second attack in which D2 was involved, to the extent of providing encouragement for some of the time by her presence, occurred when the participants went from Flat C to Flat B.  There, according to her, D3 joined in with D1 hitting the deceased with a clothes-rack pipe and a short aluminium broomstick after she had again become angry with him.  Although it seems that D2 regarded this as a “lesson” being meted out to the deceased on her behalf, when the attack became too violent she tried, with her female friends D4 and D5 who had also been watching the assaults take place, to stop D1 and D3 going too far.  D2 spoke of constant attempts at persuasion, including her failure to pull D3 off the deceased, meeting with no success as the two men had “very great strength” and could not be restrained.  They carried on until, at about 5:00 am, D1 had to leave for work with D4.  The third and final assault where D2 was concerned happened soon afterwards when the deceased was taken back to Flat C at D3’s suggestion and D2 struck the deceased on the hands and legs with the pipe.  She then, with D5, watched D3 beat him a few times with the piece of piping.  When D3 began to speak on the telephone, she went to sleep in one of the rooms inside Flat C and was not woken up until about 2:00 pm.

61.It follows from D2’s account that she could not have been present at the severe beating to which the deceased, according to D1 and D3, was later subjected in Flat B at about 9:00 am, after D1 had returned from work.  Nothing in D1 or D3’s accounts of their last attack on the deceased, hearsay though these admissions were in D2’s case, conflicted with D2’s account that she had been asleep at the time these assaults occurred.  In this regard, D2 had ended her questioning with the following answer:

“… I have told you everything, very much the whole of it.  I did not mean to beat him to death, that is, I did not beat him to death, but I did not know how it would turn out … why he was dead by the time I woke up.” (Appeal bundle p. 367)

When D3 was asked by the police if D2 had witnessed the final assaults upon the deceased by himself and D1, D3 replied that D2 was “asleep in her own flat.”

62.As a demonstration of consistency with D2’s version, the jury were at least entitled to take into account what D1 and D3 had said to the police, contrary to their interests and favourable to D2’s, as relevant evidence when determining the credibility of D2’s account to the police.  In R v Myers [1997] 3 WLR 552, where a situation of a slightly different kind had arisen, it was held that a defendant in a joint trial should be allowed to put the voluntary statements, made to the police by a co-defendant, to the witnesses to whom those statements were made, although these incriminated the co-defendant and had not been introduced into evidence by the prosecution, provided that such statements were relevant to the defendant’s defence.  This conclusion was reached in answer to a question of law of general public importance which the Court of Appeal certified in these terms:

“In a joint trial of two defendants, A and B, is an out-of-court confession by A which exculpates B but which is ruled, or is conceded to be, inadmissible as evidence for the Crown nevertheless admissible at the instigation of B in support of B’s defence, or does such a confession in all circumstances offend the rule against hearsay?”

In the present case, of course, unlike the position in Myers, D1 and D3’s respective confessions had been admitted in evidence and, for the purposes of advancing her defence that her guilt extended only as far as the assault she was prepared to admit, D2 was entitled to rely upon D1 and D3’s confessions to show that, in fact, after she had gone to sleep, they had carried out a prolonged and serious attack upon the deceased.  Indeed, without their accounts, there would have been nothing before the jury to suggest that D2 had not been involved in assaulting the deceased right up to the end, such as might have been the case if she had been arrested and tried on her own, without having the advantage of the confessions made by D1 and D3 which provided the full picture of what had happened.  As Lord Slynn said (at page 563) in Myers:

“A confession may be relevant as to credibility or as to the facts in issue and it does not cease to be admissible because it does so.  Indeed, as long as it is relevant to establish his defence or to undermine the prosecution case against him a defendant should in my view be allowed to cross-examine a co-defendant as to his confession which goes to the facts in issue rather than only to the credibility of the maker of the statement.  He should not less be allowed to cross-examine the person to whom a statement is made as to the terms of the confession even though, since the defendant has not given evidence, the question of credibility has not arisen.”

In the instant case, D2 merely had to rely on what had been said by D1 and D3 to establish the fact that hours after she had gone to her room to sleep, D1 and D3 had launched a fresh attack on the deceased.

63.It follows, therefore, that while the judge had rightly directed the jury that each of the confessions made by the applicants was evidence against only the maker of the confession, the judge ought at the same time to have indicated that they could take favourably into account in D2’s case what had been said by D1 and D3 about their resumption of the assault upon the deceased long after D2 had left the scene.  Instead, the way the judge dealt with the relevant matters of law and fact, so far as they affected D2, was by way of general directions without specifically setting out how her defence might succeed.  After summing up the ingredients of murder, the judge dealt with joint enterprise, rightly pointing out that:

“… if any participant or participants in the venture go beyond what has been expressly or tacitly agreed as part of the joint enterprise or common design, the other participant or participants are not liable for the consequences of the unauthorised act.” (Appeal bundle p. 30)

This direction was followed by a commonly used example to illustrate the joint venture principle.  Before turning to manslaughter, the judge concluded her directions on murder by saying (at page 33) that D1, D2 and D3 could be convicted of murder if the jury were sure that the defendant whose case they were considering had taken part in a joint enterprise with intent to cause the deceased really serious injury “and that he died as a result”.

64.A similar direction was then given in relation to manslaughter, emphasising the difference between murder and manslaughter on the question of intent.

65.Earlier, the judge had given directions about the offence of assault occasioning actual bodily harm, saying:

“… On Count 1, [D2] asks you to convict her only of assault occasioning actual bodily harm.

For the purposes of the present case, what you need to be told about the offence of assault occasioning actual bodily harm is this. It is committed when a person assaults a person by intentionally applying physical force to the victim, and as a result the victim suffers some actual bodily harm in the form of some physical hurt or injury which interferes with the health or comfort of that person. Such hurt or injury need not be permanent, but it must be more than merely transient or trifling.  That is all you need to know about assault occasioning actual bodily harm in this case since that is what the 2nd accused is asking you to convict her of under Count 1.” (Appeal bundle pp. 25-26)

66.The real complaint made by Mr Plowman, as we have already indicated, is that nowhere in the summing up was the jury told in what circumstances they might convict D2 of the lesser offence of assault occasioning actual bodily harm or, looked at another way, the jury was given no direction that the answers given by D2 in her interviews could be taken to amount to a “withdrawal” from the joint enterprise at the time she went to bed.

67.Two important factors underlying this submission were that the pathologist was unable to say with any precision when death had occurred although he estimated that it would have been approximately a day prior to his examination of the scene at 11:30 am on 1 April 2003 and he accepted that if the deceased’s only injuries had been those found on the limbs (where D2 had specifically admitted striking him), he would not have expected death to have resulted from them.

68.How then did the judge summarise D2’s defence?  In short, she briefly reminded the jury about some of D2’s admissions.  Giving page references, and inviting the jury to go through these with her, the judge took the jury to the post-recorded notebook (Exhibit P27A) entry which read:

“It’s not I who beat him to death.  I only struck him several times.  When I woke up from sleep, he was dead already.” (Appeal bundle p. 48)

Turning next to the video-recorded interview (Exhibit P30A) the jury were reminded that D2 had talked about being owed $35,000 by the deceased and, when he refused to provide an IOU, how D2 spoke of becoming very angry.  D2 went on later, in the judge’s words, to admit “striking the deceased’s arm with a pipe, symbolically and softly, several times to teach him not to be so cheeky”, and later described how someone else had attacked the deceased by grabbing his hair, bumping his head against the wall, as well as kicking and beating him.  The summing up, concerning D2’s further answers in this interview, was as follows:

“Next please turn to 0373. Members of the jury, there the 2nd accused says something which you may think is significant on the question of whether what was being done to the deceased was being done pursuant to a joint enterprise to which she, the 2nd accused, was a party. She says, you see, from the last third line of that page: ‘They were just thinking of giving him a lesson for me’. Mark the words ‘for me’.

Please turn now to page 0376. There the 2nd accused says that she told one of the other persons not to hit the accused on the face because she, that is the 2nd accused, ‘was really thinking of (just) giving him a lesson, not to kill him’. This lesson, she says, was ‘to let him realise that as a matter of fact (he) was in debt’. Members of the jury, as I have told you, a person can be guilty of murder even without an intent to kill. Intent to cause really serious injury is enough for murder.

Now please turn to page 0378. The 2nd accused says this at the top of the page: ‘On seeing that he/she hit him far too severely, we did put a hold - the three of (us) did put a hold on him/her, telling him/her, that is, to stop the beating, very - that is, very - striking with a pipe like that...’. Members of the jury, intent to cause really serious injury is enough for murder. Not intending to kill or to injure ‘far too severely’ does not mean that there was no intent to cause really serious injury.

Over the page, 0379, the 2nd accused says that it never crossed anybody’s mind that the deceased would be beaten to death. Members of the jury, that is not the same as saying that really serious injury was not intended.

Now please look at page 0380 down to page 0382. At these pages, the 2nd accused talks about the deceased being taken over to her place for the beating to continue. From the bottom of page 0382 over to page 0383, the 2nd accused says that after the deceased had come over, she ‘merely picked up (a) pipe (and) struck him a few times’ on his hand (or hands), leg (or legs).  Members of the jury, in considering whether you are sure that this was a joint enterprise to which the 2nd accused was a party, you are entitled to take into account that she beat the deceased with a pipe even after he had already undergone the earlier beating in the other flat.

Please turn to page 0385. There the 2nd accused says that she was flabbergasted to learn that the deceased had died. Members of the jury, she may have been flabbergasted that he died. But the question for you is not whether her intent had been to kill. It is whether her intent had been to cause really serious injury.” (Appeal bundle pp. 49-50)

69.Mr Plowman’s main criticism of this summary was that it omitted to provide the balance which it would have had if the judge had also reminded the jury about how D2, in the same interview, had stated (see paragraph 28 above) that she and the other two women with her (D4 and D5) had pulled at ‘Shuk Mai’ (D3) but were unable to restrain him, and had tried to persuade him to stop the beating “time and time again but in vain”.  He contended also that it was unfair of the judge to have commented on the phrase used by D2, in the context of trying to put a hold on one of the men, that she wanted to stop him beating the deceased “far too severely” in terms which suggested that this did not rule out an intent to cause really serious injury.  A further imbalance was caused, he suggested, when the judge then repeated a similar comment when dealing, immediately afterwards, with D2’s remark that it had not crossed anyone’s mind that death would result from the beating, saying that this was “not the same as saying that really serious injury was not intended”.

70.The real question, however, which has caused us concern was the absence of any direction from the judge as to the circumstances in which a verdict of assault occasioning actual bodily harm would have been appropriate.  This could only have arisen if the jury considered that by the time D2 had gone off to her room to sleep she had effectively withdrawn from the joint attack on the deceased which much later continued in her absence.

71.Mr Sham, in reply, submitted that withdrawal was “not a live issue” at trial.  D2 had initiated the whole incident and she had not only taken a physical part in some of the violence inflicted on the deceased but had also encouraged others at various stages to assault the deceased.  Furthermore, at no stage had she ever said anything to communicate to D1 and D3 that she was withdrawing form the enterprise (see: R v Whitefield [1984] 79 Cr App R 36; R v Rook [1993] 1 WLR 1005).

72.‘Withdrawal’ from a joint enterprise is concisely dealt with in Blackstone’s Criminal Practice [2006] at paragraph A5.8 wherein it is stated:

“There is often an interval between the act of the accessory and the completion of the offence by the principal offender. In some circumstances, a change of heart by the accessory coupled with steps to withdraw from participation in the offence can remove his responsibility for the completed offence (although he may remain liable for any completed offence of incitement or conspiracy). Precisely what is required for an effective withdrawal will vary from case to case. It may depend on how imminent the completed offence is at the time of the attempted withdrawal by the accomplice and also on the nature of assistance and encouragement already given by the accessory.  Thus in Becerra (1975) 62 Cr App R 212, Al gave A2 a knife to use if they were disturbed during the course of a burglary. When Al heard the tenant coming he called to A2: ‘There’s a bloke coming. Let’s go’ and jumped out of a window and fled. A2, however, stabbed and killed the tenant. Both Al and A2 were convicted of murder. A1’s application for leave to appeal on the grounds that he should have been allowed the defence of withdrawal was refused since, according to Roskill LJ at p. 219 (emphasis added):

‘if [he] wanted to withdraw at that stage, he would have to ‘countermand’, to use the word that is used in some of the cases or ‘repent’ to use another word so used, in some manner vastly different and vastly more effective than merely to say ‘Come on, let’s go’ and go out through the window.’

……

In Mitchell (1999) 163 JP 75, the Court of Appeal drew a distinction between pre-planned and spontaneous violence. With the latter, the issue was not whether there had been communication of withdrawal but whether the original joint venture was still continuing at the time of the principal’s act. Mitchell was followed in O’Flaherty [2004] 2 Cr App R 315, where the question was ‘whether a particular defendant disengaged before the fatal injury or injuries were caused’.”

73.In R v Mitchell and Anor [1999] 163 JP 75, the appellants had been convicted of murder.  The deceased had died after an attack upon him by a number of persons and the prosecution alleged that the appellants, together with other co-accused, had been in a joint enterprise to cause serious bodily injury to the deceased.  It had been Mitchell’s defence that if there was a joint enterprise to inflict violence on the deceased, that joint enterprise had ended by the time the fatal blows were struck or, if it had not ended, he had withdrawn from it (by dropping the stick he had been holding) by the time the fatal blows were struck.  The Court of Appeal held, when allowing both appeals, that notwithstanding the careful way in which the jury had been directed generally about the law:

“… two further clear directions were called for.

First, that the jury had to be satisfied that the fatal injuries were sustained when the joint enterprise was continuing and that the defendant was still acting within that joint enterprise.

……

Second, that the jury had to be satisfied that the acts which caused the death were within the scope of the joint enterprise.”

74.The English Court of Appeal held that directions to this same effect ought to have been given in R v O’Flaherty and Ors [2004] 2 Cr App R 315 which again involved spontaneous violence on the deceased by a group of youths.  Attacks on the deceased took place in two streets and the central issue in the case was whether this was one continuing event or two incidents having regard to the absence of the appellants at one of the scenes of attack and the prosecution’s inability to prove the exact cause of death where head injuries and stab wounds had been inflicted.  The court (at page 327) addressed two specific issues of which the second is of particular importance in the present case:

“… whether, even if the events were to be regarded as one evolving incident, the jury should have been directed to consider in the case of each defendant whether he had withdrawn from the incident before the infliction of any injury that contributed to the death.”

75.Turning (at pages 330 to 331) to the way in which the court dealt with the second issue, Mantell LJ said:

“… the significance to be attached to whether what occurred was one continuing event or amounted to two separate events. The Crown recognises that a person who joins in after the fatal injury or injuries have been inflicted must be found not guilty of murder because he was not a party to any unlawful violence that caused the fatal injury or injuries. The Crown, however, considers that once party to a joint enterprise, unless the event causing the fatal injury or injuries is separate from the event into which the individual joins, it matters not that at some stage the individual defendant takes no further part in the action. Mr Coward argued that the offence was complete when the appellants decided to teach Hall a lesson and armed themselves. In the case of an incident lasting a couple of minutes, he suggested it was dangerous to focus on the precise point at which the fatal injuries were inflicted. This reflected his submission to the judge that, on the basis of R. v Grundy (1989) 89 Cr.App.R. 333, what had to be considered was the totality of the injuries. Before us Mr Coward submitted that once a person has joined an enterprise with the requisite intention or foresight there is no way out, however clear that person’s disengagement or withdrawal, unless the fatal injury that is subsequently inflicted is part of what can be termed a “separate event”.

While, as we suggest later in this judgment, a strict view of what will in fact constitute withdrawal can properly be taken, the preclusion of withdrawal in any circumstances cannot in our view be correct, either in principle or as a matter of policy. A person who unequivocally withdraws from the joint enterprise before the moment of the actual commission of the crime by the principal, here murder, should not be liable for that crime, although his acts before withdrawing may render him liable for other offences. That this is so is seen from an earlier case involving an appellant called Grundy. In R. v Grundy [1977] Crim.L.R. 543 this Court recognised that a person can withdraw until the acts of the principal offender reach the stage of an attempt. The line was probably crossed in R. v Perman [1996] 1 Cr.App.R. 24, 34, decided on another ground. In Perman this Court doubted that it is possible for a party who becomes a party to a joint enterprise to withdraw once the criminal activity falling within that joint enterprise has commenced. This is, however, not inconsistent with R. v Grundy [1977] Crim.L.R. 543 because in Perman the criminal activity within the joint enterprise was a robbery and the robbery had commenced before the defendant left the shop where the robbery was taking place.

……

We have noted that for there to be withdrawal, mere repentance does not suffice. To disengage from an incident a person must do enough to demonstrate that he or she is withdrawing from the joint enterprise. This is ultimately a question of fact and degree for the jury. Account will be taken inter alia of the nature of the assistance and encouragement already given and how imminent the infliction of the fatal injury or injuries is, as well as the nature of the action said to constitute withdrawal. In cases of assistance it has sometimes been suggested that, for there to be an effective withdrawal, reasonable steps must have been taken to prevent the crime. It is clear, however, this is not necessary.” (Emphasis added.)

76.Mr Plowman placed heavy reliance upon the passage we have italicised because, as he submitted, if a person must do enough to demonstrate that he or she is withdrawing from the joint venture and this is “ultimately a question of fact and degree for the jury”, then this was never made plain to the jury in the present case.

77.Earlier (see paragraph 68 above) we set out the way in which the jury was reminded of the case against D2 based upon her admissions to the police.  Before that (at paragraph 65 above), the judge had directed the jury as to the alternative verdict of assault occasioning actual bodily harm which they had been invited by the defence to convict upon.  However, at no stage were directions given in the terms contemplated in R v Mitchell and Anor (see paragraph 73 above).

78.The jury had been made aware, from the confessions of both D1 and D3 that, several hours after the final assaults in which D2 had been concerned, a violent and sustained attack in Flat B had been mounted upon the deceased in D2’s absence at a time when, on D2’s version, she would still have been asleep in Flat C.  The deceased’s body was later discovered by the participants in the assaults in Flat B.  The evidence of the pathologist about the cause of death went no further than establishing that death resulted from “the combined and cumulative effect of extensive bleeding and dysfunction of various internal organs due to multiple blunt-force impacts”.

79.In such circumstances, we consider that it was incumbent on the judge to have addressed, with specific reference to D2, firstly, whether D2 could be said to have still been acting in the course of the joint enterprise and, secondly, whether the acts of D1 and D3, which may have caused the death, were within the scope of the joint enterprise.  It is the first of these questions which, it seems to us, was particularly pertinent here although both have relevance.  Unlike many of the other cases where the courts have considered ‘withdrawal’ from a joint enterprise, this was, so far as D2 was concerned, not a case where continuous violence within a very short space of time had occurred.  In our opinion, it is self-evident that at the very least the jury had to be alerted to the possibility that the assaults on the deceased by D1 and D3 in D2’s absence, several hours after she had spoken of going to sleep, could well be regarded as a wholly separate incident lying outside the scope of the general agreement to teach the deceased a lesson.

80.Instead of a specific direction dealing with D2’s possible withdrawal from the joint enterprise by the time of the final assaults by D1 and D3 in her absence, the jury were given the following directions:

“First of all, I deal with the murder count. Shortly stated, the prosecution’s case on this count against each of the 1st, 2nd and 3rd accused - and you will remember always that the case against and for each accused calls for separate consideration - comes to this. The three of them, acting together, killed the deceased in circumstances amounting to murder or, if there is any reasonable doubt about murder, then at least manslaughter. That means that the prosecution is saying that the three of them acted jointly - in other words - that they acted pursuant to a joint enterprise, or, as it is sometimes called, a “common design”.

Of course, you will consider the evidence pertaining to each accused’s role to see whether you are sure, upon the evidence against each of the accused, that that accused did take part in the joint enterprise. If that accused did, then the position in law is as follows. Each is liable for all the acts done, whether by that accused or another, in pursuance of that joint enterprise or common design.” (Appeal bundle p. 25)

81.A little later, the judge said:

“There is no suggestion by any of the accused that he or she killed the victim with legal justification or excuse in the present case, so subject to the question of assault occasioning actual bodily harm and to the question of manslaughter, which I will come to later, the questions here in regard to each accused facing the murder count are: (1) are you sure that he or she killed the deceased, and (2) if you are sure that he or she did, then are you sure that he or she did so with intent to cause the deceased really serious injury?” (Appeal bundle p. 26)

82.With specific reference to D2’s case, the judge added:

“[Counsel] for the 2nd accused said in his final speech that his client’s intent was to teach the victim a lesson. If she wanted to teach the deceased a lesson, that would be her motive. But what was her intent? On a charge of murder, intent goes to the physical consequences to the victim. The prosecution’s case is that her intent, as a party to a joint enterprise of assaulting the deceased, was to cause him really serious injury.

……

You are here to decide, in relation to each accused charged with murder, whether he or she intended to cause really serious injury to the deceased.

As to that, you look, in relation to each of the accused, at the whole of the evidence relating to him or her. That includes what you see from the photographs, and what you learn from the medical evidence given by the pathologist, had happened to the deceased. And in relation to each accused charged with murder, you decide, as the sole judges of fact, using your common sense and your experience of life, and going by the evidence relating to him or her, whether you take the view that the only reasonable inference in all the circumstances is that causing really serious injury to the deceased was what he or she intended.” (Appeal bundle pp. 27-28)

83.Soon afterwards, the judge said:

“Subject to the questions of manslaughter and assault occasioning actual bodily harm, in respect of each accused facing the murder count, if you are sure that he or she killed the deceased and that he or she did so with intent to cause the deceased really serious injury, then you would be entitled to find him or her guilty of murdering the deceased. Remember that - as I have told you - killing includes being party to a killing done in the course of a joint enterprise.” (Appeal bundle pp. 28-29)

84.Again, with reference to D2, the judge said:

“As far as the 2nd accused is concerned, you then have to consider whether to convict her of manslaughter, which she denies, or of assault occasioning actual bodily harm, which she asks you to do. Even if she did not intend to cause the deceased really serious injury, she would still be guilty of manslaughter - sometimes called “unlawful act manslaughter” - if you are sure that: (1) the deceased was killed as the result of an unlawful act done in the course of a joint enterprise to which she was a party. I will repeat that: (1) If the deceased was killed as the result of an unlawful act done in the course of a joint enterprise to which she was a party, and (2) that unlawful act is one, such as an assault, which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some physical harm resulting therefrom, albeit not serious harm.

Members of the jury, you are entitled to feel sure, if you see fit, that the deceased died as a result of what was at least an unlawful act - that is, an assault which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some physical harm therefrom, albeit not serious harm. You see, in this case for murder it is necessary that the accused intended at least to cause really serious injury.

In this case, intent to cause really serious injury is an essential ingredient of the offence of murder. But for manslaughter that intention is not necessary. What is necessary is, as I have said, there was participation in the killing, and that the unlawful act be one, such as an assault, which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some physical harm resulting therefrom, albeit not serious harm.

As I have told you, it is the prosecution’s case that the three accused acted jointly - in other words, that they acted pursuant to a joint enterprise or, as it is sometimes called, a common design. It is the law, members of the jury, that when two or more persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise or common design. That includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise or common design.

However, if any participant or participants in the venture go beyond what has been expressly or tacitly agreed as part of the joint enterprise or common design, the other participant or participants are not liable for the consequences of the unauthorised act. By “unauthorised act”, I mean an act going beyond what has been expressly or tacitly agreed as part of the joint enterprise or common design. It is for the jury to decide whether the thing done was part of the joint enterprise or common design, or whether it was or may have been an unauthorised act and therefore outside the scope of the joint enterprise or common design.

The unauthorised act or acts situation is most apt to arise for consideration in cases of sort where, for example, a number of assailants beat a victim with fists and then one of them suddenly produces a knife and stabs the victim. That is not what happened here, but you must nevertheless consider the question of unauthorised act or acts. In so doing, you are of course entitled to bear in mind all the circumstances of the assault on the deceased, including its nature and duration. In relation to each accused charged with murder, you bear in mind those things as established against him or her by his or her own admissions as you see fit to act on them.” (Appeal bundle pp. 29-31)

85.When the judge turned to the evidence, she commented:

“Reverting to the prosecution’s case, it is essentially this. The deceased was assaulted in Flat B on 31 March 2003 by the 1st, 2nd and 3rd accused, and that they were acting in the course of a joint enterprise when doing so. It is also the prosecution’s case that the only reasonable inference in all the circumstances is that they intended at least to cause the deceased really serious injury.” (Appeal bundle p. 31)

86.Again, just before summarising the police interviews, the judge said:

“On the murder count in respect of each accused, you decide first whether you are sure, without taking into account anything said against him or her in anybody else’s out-of-court statement, that he or she killed the deceased by taking part in the acts which killed the deceased, by taking part in assaulting the deceased. In other words, whether he or she took part in a joint enterprise which killed the deceased.” (Appeal bundle p. 39)

87.All of these directions were perfectly valid so far as they went but, for the reasons we have expressed already, in our opinion, by omitting to deal with D2’s possible withdrawal from the joint venture, they did not go far enough.  Furthermore, nothing was said to the jury which would have indicated to them that they could take into account in favour of D2 those passages in D1 and D3’s statements which bore out her account.

88.We have concluded, therefore, that the omission to provide the jury with specific directions to cover D2’s absence from the last of the violent assaults on the deceased, described in the confessions made by D1 and D3, was a material irregularity in that a potential defence for D2 was never explained to the jury.  It was, in reality, the only defence D2 had.  Hence, the offer to plead guilty to assault occasioning actual bodily harm was made.

Conclusions on the convictions of D1, D2 and D3

89.Having regard to our conclusions in respect of D1 and D3, both their applications are dismissed.

90.However, in relation to D2, we grant leave and, treating the hearing as the appeal, her appeal is allowed and her conviction and sentence for murder are quashed.  Mr Plowman submitted that an appropriate order in her case would be to substitute a conviction for assault occasioning actual bodily harm.  Mr Sham, on the other hand, argued that there should be a re-trial for murder.  We have carefully considered these submissions but, in the event, we have concluded that in the special circumstances of D2’s case, a conviction for murder could never be regarded as safe or satisfactory.  The only evidence against D2 as to what happened came from the words spoken by herself and, in our view, it would not be possible for a jury safely to say that she could be regarded, on this account, as having remained in the joint enterprise to the end.  Several hours separated her last involvement in the assaults upon the deceased and the renewed attacks by D1 and D3 in her absence which gives rise to the probability that this was a separate incident altogether, albeit motivated by what had gone on before.  In our view, it would in any event, on the facts of this case, be stretching the legal principles involved in joint enterprise to suggest that, in the absence of any instruction from D2 to D1 or D3 to continue the assaults in her absence, she could still be safely regarded as a party to what was going on.  Furthermore, it is not possible to say that the earlier attacks, in which D2 was admittedly involved, left injuries to the deceased which were a significant cause of death.

91.Accordingly in D2’s case, we shall substitute a conviction for assault occasioning actual bodily harm.  The matter will need to be re-listed before us as soon as possible for the question of sentence to be determined.  Meanwhile, D2, whose sentence of 3 years’ imprisonment for conspiracy to pervert the course of public justice may already have been served, will remain in custody pending sentence on the substituted offence.

Sentence – D4

D4’s sentence application

92.Mr Percy, on D4’s behalf, submitted that the sentence of 4 years’ imprisonment, imposed on D4 for conspiring to pervert the course of public justice by the assistance she gave her accomplices in the removal, amongst other things, of the deceased’s body, was manifestly excessive.  In particular, he complained that, by reference to other similar cases decided in England and in Hong Kong, a 5-year starting point was too high and that the mitigating circumstances had not sufficiently been taken into account.

93.The evidence against D4, of her involvement in the disposal of the deceased’s body and other items connected with the killing, was based entirely upon her confession to the police which, in turn, was borne out by the police investigation.  D4 described how, having learnt about the death of the deceased, she discussed with the other occupants of Flats B and C what should be done.  She was a party to the disposal of the body by acting as a “look-out”.  She also helped in cleaning away the bloodstains left behind on the stairs and in getting rid of such items as clothes which might have been bloodstained.

94.The judge, in passing sentence, adopted a 5-year starting point for the offence having, as Mr Percy conceded, been provided with a number of authorities in which the sentences for offences of this general kind had varied from about 12 months to about 5 years.  The judge went on to describe the “only real mitigation” in D4’s case as being the fact that she was “not the leader of this conspiracy” and had acted to “protect another or others”.  The judge, on this account, passed a 4-year sentence, pointing out that a conspiracy of this kind “is always serious and is particularly serious when it is in respect of a homicide investigation”.

95.Mr Percy’s main contention was that this was an offence which had been carried out in an amateurish way and that, when compared to the facts in a number of other cases to which he referred in the course of argument, the 5-year starting point was too high.  He submitted that a sentence of 3½ years, as opposed to 4 years, would have been appropriate having regard to all the circumstances.

96.We did not derive much assistance from the facts of the other cases on which Mr Percy placed reliance.  The only question we have had to determine is whether a sentence of 4 years’ imprisonment was manifestly excessive.  We have concluded that it was not.  As the judge had rightly indicated, a conspiracy of this kind, where the investigation involves homicide, is serious because it involves an agreement to dispose of evidence and to distance the body from the scene of the crime.  D4 had shown no contrition despite her earlier confession to the police and the mitigation, such as it was, seems to us to have been taken fully into account.

97.D4’s application is dismissed.

Mr Alain Sham, SADPP and Ms Anthea Pang, SGC, of the Department of Justice, for the Respondent.

Mr John Haynes, instructed by Messrs J Chan, Yip, So & Partners (assigned by Director of Legal Aid), for the 1^st Applicant (D1) (re: conviction)

Mr Gary Plowman, SC, instructed by Messrs Cheung, Chan & Chung (assigned by Director of Legal Aid), for the 2^nd Applicant (D2) (re: conviction)

Mr Maurice P Tracy, instructed by Messrs Tung, Ng, Tse & Heung (assigned by Director of Legal Aid), for the 3^rd Applicant (D3) (re: conviction)

Mr Duncan Percy, instructed by Messrs S Y Chu & Co. (assigned by Director of Legal Aid), for the 4^th Applicant (D4) (re: sentence)