HKSAR v. Tsang Chiu Tik and Another

CACC000567/1998

CACC 567/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 567 OF 1998

(ON APPEAL FROM HCCC 474 OF 1997)

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Coram: Hon. Stuart-Moore, V.-P., Leong, J.A. and Woo, J. in Court

Date of hearing: 17 September 1999

Date of delivery of judgment: 17 September 1999

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. On 30th October 1998, in the Court of First Instance before Beeson, J. and a jury, the applicants Tsang Chiu-tik (D1) and Kum King-fung (D2) were convicted of the murder and kidnapping of Law Wai-yin. They now seek leave to appeal against conviction.

2. We first deal with the application of the 1st applicant.

3. The 1st applicant admitted the killing of the deceased in circumstances amounting to murder. He had offered a plea to manslaughter on the ground of diminished responsibility but that plea was not acceptable to the prosecution. He put up at the trial the defence of diminished responsibility under s.3 of the Homicide Ordinance, Cap. 339 which reads as follows:

"3. Persons suffering from diminished responsibility

(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.

(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter."

4. The issue at the trial was whether the 1st applicant was guilty of murder or manslaughter by reason of diminished responsibility.

5. The circumstances leading to the 1st applicant killing the deceased largely came from the 1st applicant's statements and the admissions he made in his video interviews by the police in the investigation of the case.

6. The deceased was a 12-year-old boy by the name of Law Wai-yin and he was the child of a Madam Ng. They were living together with Madam Ng's mother. In May 1996, the 1st applicant, the boy friend of Madam Ng, moved in to live with them. Their financial position was not good but their relationship remained harmonious. The 1st applicant worked as a driver who sometimes had to work long hours. He gave his salary to her and she gave him expenses. On occasions, he borrowed money from finance companies for Madam Ng.

7. Madam Ng occasionally stayed away from home overnight and this disturbed the 1st applicant. In January 1997 Madam Ng took money from her employer and as a result she was involved in court proceedings. Then their financial position became worse. The 1st applicant had indicated once or twice to Madam Ng that he could not cope and at times he was found weeping and crying.

8. The relationship between Madam Ng's mother and the 1st applicant had not been good. The mother considered that the 1st applicant did not treat the deceased well. The 1st applicant did not think that she treated him well either. He found her attitude towards him becoming worse as they were unable to reduce their debts. He also found that the deceased started not to respect him. As a result, he hated the family. In his interviews, he told the police that it might be that he loved his girl friend too much and he shifted all the responsibility to the mother and son and gradually, the thought came to him that only if either Madam Ng's mother or the boy was not there, the two of them i.e. he and Madam Ng would be able to live happily. He then decided to kill the deceased.

9. In about June, 1996 the 1st applicant took out an insurance policy in the name of the child for US$200,000 which, he said, was intended for the deceased's future education. The beneficiary in the policy was Madam Ng but he never told her about it and she had no idea of such a policy until the death of the boy.

10. The deceased routinely went to tutorial school on Tuesday or Friday. On 5th August 1997, the deceased was supposed to do the same. On that day, the 1st applicant borrowed a Honda motor car from a friend and waited for the deceased at the school. He picked him up and drove him to Tai Po. In the meantime, Madam Ng phoned the 1st applicant and told him that the deceased was absent from school but he told her the deceased could have gone to play and she was not to worry when in fact, the deceased was then with the 1st applicant. The 1st applicant then took the deceased to Tai Po Plaza to meet the 2nd applicant. Earlier, he had told the 2nd applicant that he wanted to kill the deceased and the 2nd applicant agreed to be his driver and alibi witness. At the car park in Tai Po Plaza, the 1st applicant used a piece of electric wire, a cord from the vacuum cleaner which he had brought with him in the car, to strangle the deceased. While the deceased was strapped to the seat, he strangled him twice and struck his head to make sure that the deceased was dead. Then he told the 2nd applicant to phone the boy's home and demand a ransom of $150,000 to divert the attention of the family members and to create an alibi. After that, the 2nd applicant drove the body of the deceased to a rubbish dump at Sam Mun Tsai and disposed of it. The 1st applicant then phoned Madam Ng who told him that she had reported the deceased missing to the police. At that time the 1st applicant had already killed the deceased but he nevertheless told Madam Ng to go home first and wait to see how the police could help her.

11. When the 1st applicant was first interviewed by officers investigating the matter, he gave a detailed account that he was tied up and kidnapped by three men because he failed to repay his debt. He told the police that he was taken to Sam Mun Tsai where he saw the deceased was also being held there. The men then forced him to call the deceased's family and demand a ransom. Later he saw the men strangle and kill the deceased. He maintained this account for two days and he re-enacted the incident to the police. However, this account was subsequently found out to be untrue.

12. The prosecution case against the 1st applicant was that he killed the deceased to obtain the insurance money and because he felt that the deceased was impeding his relationship with Madam Ng.

13. The 1st applicant's case is that he was suffering at the time of the killing from an abnormality of mind induced by disease such that his mental responsibility was substantially impaired.

14. The defence called two experts, Dr. Peter Ho and Dr. Timothy Law.

15. Dr. Ho is a qualified medical doctor and a psychiatrist. He had examined the 1st applicant 14 months after the killing. He told the jury the 1st applicant's criminal behaviour might well be considered as an extreme form of disordered conduct that could be part of a manifestation of adjustment disorder and the disease which induced the 1st applicant's behaviour was an adjustment reaction coupled with depression the basis of which was the 1st applicant's upbringing and childhood, his adult inadequacy and the immediate stresses imposed upon him by his relationship with Madam Ng and his need to get money to repay the debts. His conclusion was that there were grounds for him to suggest that the 1st applicant was suffering from an abnormality of mind induced by disease at the time of the incident such that his mental responsibility was substantially impaired for the defence of diminished responsibility to be established.

16. Dr. Law is not a qualified medical doctor. He is a psychologist. His long list of qualifications and experience as a psychologist is not challenged. In his report on the 1st applicant, he made the observations that the 1st applicant was suffering from an abnormality of mind as a result of multiple factors which manifested itself in a form of mental illness, mental disorder with varying degrees of pathology as to have lessened, diminished and impaired his mental responsibility, his customary self-control, judgment and discretion. He said that the 1st applicant's mental condition was best described under the diagnosis of:

A. Major depressive disorder, single episode, severe without psychiatric features, and

B. Schizotypal personality disorder.

17. It may be said at this stage that Dr. Law appears not to have identified in his observations whether the 1st applicant's state of mental disorder was induced by disease or otherwise.

18. At a hearing of the preliminary issue whether Dr. Law with his qualifications and experience was a qualified expert to tell the jury that the 1st applicant was suffering from an abnormality of mind induced by disease, the Judge ruled that he was not qualified. The Judge considered that only a psychiatrist was qualified to give opinion on disease of the mind and Dr. Law as a psychologist was not medically qualified to give an opinion in that regard.

19. The sole ground of appeal of the 1st applicant is that the Judge was wrong to deny the jury of the vital evidence of Dr. Law that the 1st applicant was suffering from a disease of the mind, otherwise the jury might have concluded that the 1st applicant was suffering from diminished responsibility.

20. Dr. Law no doubt holds several university high degrees and qualifications among which are a Ph.D, diploma of the American Board of Forensic Examiners 1996, diploma of the American Academy of Behavioral Medicine and a certificate from the Board of Medical Examiners of the State of California licensing him as a psychologist. He is a fully qualified Clinical Forensic Psychologist with a sub-speciality in neuropsychology with 25 years of experience within medical psychiatric settings, medical staff membership and privilege within private community hospitals and psychiatric facilities in California. He had been concerned with forensic psychiatry and dealing with the criminally insane in several hospitals in different states in the United States and for a number of years part of his duties was identifying disease of the mind. He was one of the psychiatrists and clinical and forensic psychologists appointed to the Superior Courts of California. He has been practising in Hong Kong since September 1997 as a psychologist describing his practice as "medical and forensic psychology and neuropsychology" but before this trial he had not been called as an expert in a court in Hong Kong.

21. Dr. Law does not have a medical degree and he is not allowed to register as a general medical practitioner nor as a psychiatrist either here or in the United States. He was not allowed to give medical treatment or to prescribe psychotropic drugs or other drugs in the United States.

22. The evidence on the preliminary issue included the evidence of a Dr. Fung Shun-sun who is a psychiatrist practising in Hong Kong and has practised as such in the United States from 1982 to 1993. He has qualifications similar to those of Dr. Law except that he has a medical degree from the University of Hong Kong which Dr. Law does not have. His opinion was that Dr. Law was fully competent to arrive at a diagnosis in evaluating diseases of the mind. He agreed that in the United States as well as in Hong Kong there was a clear professional distinction between a psychiatrist and a psychologist and to be a psychiatrist, one must be medically qualified first but the difference in practice was only in regard to prescription of medication so far as the United States are concerned.

23. The Judge found in the end that Dr. Law may well be accepted by a Hong Kong Court when dealing with matters within the purview of a psychologist, such as the assessment of personality and intellect, characteristic traits and psychological testing etc. But he cannot be accepted as an expert in assessing an abnormality of mind "induced by disease" in terms of s.3 of the Homicide Ordinance, Cap. 339, because he lacks medical training or practice. The Judge in her ruling reviewed a number of authorities, both English and Hong Kong, where the defence of diminished responsibility had been raised but in all these cases, the medical evidence called was almost invariably that of a psychiatrist. The Judge concluded:

"For the purpose of determining the issue that concerns the court, I am not satisfied that Doctor LAW is an expert. I consider that the only definitive evidence on what is essentially a medical matter, if given at all, should be given by a psychiatrist whose training includes that of a medical practitioner as the basis for his speciality in the assessment and treatment of mental illness."

"... I am not denigrating Doctor LAW's achievements, nor am I necessarily precluding his acting as an expert in matters that are within the accepted, and what Doctor LAW would no doubt regard as the old-fashioned, field of a psychologist.

There is no blurring of the demarcation lines between psychologists and psychiatrists in this jurisdiction as Doctor LAW says there is in the United States of America. At present in Hong Kong, there is nothing to stop anyone, qualified or not, from setting up practice as a psychologist, nor is there any formal regulatory body governing the practice of psychologists. Until there is a licensing system or training body, the courts are obliged to tread very carefully in accepting psychological evidence of unknown or untested provenance, and must scrutinise carefully the credentials and expertise of those persons holding themselves out as such."

24. Mr. Poll submits that this approach of the Judge was too cautious. He submits that Dr. Law met the criteria of expert witness albeit he did not have a medical degree. He submits the opinion of Dr. Ho was somewhat equivocal while Dr. Law's was more assertive as to the vital element of abnormality of mind caused by disease. To exclude that opinion of Dr. Law, it is submitted, would be to deny the jury of a piece of evidence vital to the determination of this case by the jury. Mr. Poll concedes that there is no precedent in this jurisdiction or in England for accepting psychologist evidence for this purpose but he submits that there are other jurisdictions which do so and the court should be more open and more receptive. The main thrust of Mr. Poll's argument is that given Dr. Law qualifications and experience and having regard to Dr. Fung's evidence that Dr. Law is competent to diagnose mental illness, Dr. Law should be allowed to give an opinion on mental illness induced by disease.

25. Mr. Bruce, S.C. for the Government submits that the task of the Judge was simple. She was simply to decide whether Dr. Law was qualified to give the evidence. The burden was for the defence to show that he was so qualified but even though the Judge accepted the impressive qualifications of Dr. Law, she was nevertheless not satisfied that Dr. Law was qualified to give evidence on the issue before the court. The Judge had the evidence before her to come to her conclusion and she was quite right in that regard. Referring to R. v. Bonython [1984] 38 S.A.S.R. 45 cited in Archbold, Mr. Bruce says that the Judge had followed that authority closely in dealing with the preliminary issue and her ruling cannot be faulted.

26. In our opinion, the law on diminished responsibility is clear. In R. v. Byrne [1960] 44 Cr. App. R. 246 Parker L.C.J., when he construed s.2(1) of the Homicide Act 1957, the equivalent of our s.3 of the Homicide Ordinance, said this at p.252:

"To satisfy the requirements of the subsection the accused must show: (a) that he was suffering from an abnormality of mind; and (b) that such abnormality of mind: (i) arose from a condition of arrested or retarded development of mind or any inherent causes or was induced by disease or injury; and (ii) was such as substantially impaired his mental responsibility for his acts in doing or being a party to the killing."

27. Later at p. 253, he continued:

"Whether the accused was at the time of the killing suffering from any 'abnormality of mind' in the broad sense which we have indicated above is a question for the jury. On this question medical evidence is, no doubt, of importance, but the jury are entitled to take into consideration all the evidence including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence, if there is other material before them which, in their good judgment, conflicts with it and outweighs it. The etiology of the abnormality of mind (namely, whether it arose from a condition of arrested or retarded development of mind or any inherent causes or was induced by disease or injury) does, however, seem to be a matter to be determined on expert evidence."

28. In R. v. MacKenny [1983] 76 Cr. App. App R, one of the cases reviewed by the Judge and referred to by Mr. Poll in his skeleton argument, one of the issues was whether there was any medical evidence to show that a witness suffered from some disease or defect or abnormality of mind that affected the reliability of his evidence. It was held that psychiatry was a branch of medical science dealing with diseases and disorders of the mind and a witness who was not a psychiatrist was not qualified to give psychiatric evidence. Ackner L.J. said this at p.275:

"... Mr. Mansfield submitted to us that Mr. Irving was qualified to diagnose mental illness. His training, he submitted, as a psychologist enabled him so to do (sic). We do not agree. No doubt his training as a psychologist gave him some insight into the medical science of psychiatry. However, not being a medical man, he had of course no experience of direct personal diagnosis. He was thus not qualified to act as a psychiatrist. Mr. Irving's evidence was not medical evidence, and was not admissible."

29. It may be seen that in England a distinction between psychiatrists and psychologists is clearly drawn on matters involving psychiatric evidence.

30. The reference by Mr. Poll to Bruce and McCoy Criminal Evidence V1 (355) and the cases cited therein that a court may consider, when determining whether the person called as an expert is sufficiently qualified to give expert opinion on the topic at issue before the court, expertise may be gained through experience and on-the-job training and not necessarily through formal studies or professional training has no application here. While this may be so in some areas of expertise, in the speciality of psychiatry in medical science which is highly professional, we do not think a person without medical qualification is sufficiently qualified to give expert evidence in this field. In the present case, Dr. Law had been called to give his opinion as a psychiatrist that the 1st applicant was suffering from an abnormality of mind and to say it was induced by a disease. The clear distinction between the two professions and the absolute requirement of a medical qualification for a psychiatrist show that a psychologist is not qualified to give medical evidence in the speciality of psychiatry. An abnormality of the mind induced by disease is a matter of medical diagnosis. The Judge was quite right not to have allowed Dr. Law to give evidence as a psychiatrist to that effect before the jury.

31. The Judge in her directions after she referred to the requirements of s.3 of the Homicide Ordinance, said this at p. 20 of the summing-up:

"In relation to points 1 and 2 on the form that I have given you, although the medical evidence is important, you must consider not just the evidence of Dr HO and Dr LAW, but also all the evidence that you have including the nature of the killing; the conduct of the 1st defendant before, at the time of, and after the killing; any history of mental abnormality."

32. Later on, she said this on p.21 of the summing-up:

"... You must be satisfied that any abnormality of mind was a real cause of the defendant's conduct. However, the matters relevant to deciding whether or not the 1st defendant is suffering from any abnormality of mind induced by disease are matters which you need help to decide.

And it is not relevant to your considerations whether or not Dr HO believed what the 1st defendant told him, but his assessment generally is relevant. You are not qualified to say, without the assistance of a psychiatrist, whether or not something such as an abnormality of mind is due or is not due to a disease, but you are not bound to accept what you are told. If there is a conflict of evidence about that issue, it is a conflict that you have to resolve one way or the other.

You have heard Dr HO's opinion and you have read his report, and you have heard his explanation of his report, and you have also heard him cross-examined by the prosecution on the content of that report. Dr LAW also made a report. You have a copy of that. He gave evidence on the basis of that report. In some respects, Dr HO's and Dr LAW's views are in agreement, even though they may not have focused entirely on the same details or on the same things that they thought relevant."

33. After that the Judge referred to the contents of Dr HO's report, she added at p.22 of the summing-up:

"Now, it is important that you understand what it is you are here to do and what it is the psychiatrist and the psychologist are here to do. They are not here to decide the issue of whether the 1st defendant had diminished responsibility, but to help you about things that are not within your experience and competence to decide. For example, whether someone is an epileptic or a schizophrenic or how someone reacts to drugs are all matters that require medical expertise; so, too, with abnormality of mind and its causes.

No one expects you to decide those matters without the help of an expert, or experts. And here the defence has called Dr HO to provide the medical expertise to help you decide whether the 1st defendant has an abnormality of mind caused by disease. Dr LAW does not have medical expertise, but he can give evidence of matters relating to the human mind and its relationship to the body and comment on the defendant's emotions, perceptions, reasoning and characteristics as they relate to his own circumstances."

And further down at p. 23, the Judge said this:

"Dr HO and Dr LAW were put before you as expert witnesses. Dr HO is a psychiatrist which means that he qualified, as part of his training, as a medical doctor. Dr LAW is trained as a psychologist only, and you will note that he is not qualified as a medical doctor. He has got a long list of qualifications, but he does not actually have a qualification as a medical doctor."

And at p.24, the Judge said this:

"Here the particular issue on which the experts have been called is the medical evidence necessary to support the 1st defendant's contention that he is suffering from diminished responsibility. You will recall that the onus is on the 1st defendant to prove that diminished responsibility, even though the standard of proof on him is not as high as that which is on the prosecution during the trial. The standard that the defendant must comply with is: is it more likely than not. And, on that basis, you have to consider whether he has satisfied you of the fact that he suffers from an abnormality of mind, that it is caused by disease and that it has substantially impaired him in respect of his responsibility for the killing."

34. On this aspect the Judge concluded:

"Now, although the medical evidence called by the defendant is uncontradicted by other medical evidence called by the prosecution, the prosecution has challenged the basis of the defence evidence in the cross-examination of Dr LAW and Dr HO. You are entitled to take those matters into account and to reject the opinions, or differ from the conclusions reached by Dr HO and Dr LAW, if you find facts existing that entitle you to do so.

You may look at evidence relating to the 1st defendant's conduct before, at the time of, and after the killing, in deciding whether facts exist that allow you to accept or reject the expert evidence. However, you must act on the evidence that is before you. If you find there is nothing before you that throws doubt on the medical evidence, then the medical evidence is all that you have and, in those circumstances, you must accept it."

35. From what I have cited from the Judge's summing-up, it is clear that the evidence of Dr. Ho was put clearly before the jury and the burden for the 1st applicant on the defence had been fully explained. It is obvious that having considered all the evidence which showed a well-planned killing with a motive and attempts by the 1st applicant to divert the attention of investigating police officers after the killing, the jury must have rejected the defence of diminished responsibility. The jury was made aware of the defence and all the necessary evidence and the jury came to a conclusion which we do not think there is any reason to disturb. The application to appeal against conviction by the 1st applicant must be dismissed.

36. Before leaving this matter, we are concerned about a request by Mr. Poll that any decision made by us regarding the qualification of Dr. Law to give evidence as a psychiatrist on the issue should not be such as to exclude Dr. Law from giving similar evidence in other courts in future. We do not think it is a request that should have been made nor one, having been made, that we should consider. We are concerned here with the appeal before us and the ruling of the Judge that Dr. Law was not medically qualified to give opinion evidence as to a disease of the mind. To go further would be inappropriate.

37. We now deal with the application of the 2nd applicant.

38. The prosecution case against the 2nd applicant was that he assisted the 1st applicant in killing the deceased in that he acted as the driver of the Honda motor car and probably as a lookout when the 1st applicant strangled the deceased. He subsequently assisted the 1st applicant to dispose of the body.

39. The sole evidence against the 2nd applicant was his admissions in his interviews by the police which were video taped. In one of these, the 2nd applicant re-constructed how and where the killing took place and how the body was disposed of after the killing.

40. The 2nd applicant suggested that these interviews were conducted by the police after he had been denied the presence of his lawyer and pressure had been put on him to make him confess. But all these were denied by the officers who were involved in the interviews.

41. The 2nd applicant admitted in these interviews that he knew about a week before the killing that the 1st applicant planned to kidnap and kill the deceased. The 1st applicant wanted him to drive the vehicle for him and to make a ransom demand to the family in order to make up an alibi for the 1st applicant. He said he only agreed to act as his driver and not to the killing. On 5th August 1997, he met the 1st applicant and the deceased at Tai Po Plaza. He made a ransom call to the grandmother of the deceased from a herbal shop in the Plaza. They then went to the car park. He was outside the car when the killing started. He saw the 1st applicant strangle the deceased inside the car with a piece of electric cord, a cord from a vacuum cleaner, and the deceased struggle. At one stage during that time, he did not want to see the killing and he put up the bonnet to block the view. He said he wanted to stop it but it appeared that he did not in fact take any steps to do so. Instead, he subsequently assisted the 1st applicant by holding the deceased upright so that the 1st applicant could strangle the deceased to death. Subsequently he drove the body to Sam Mun Tsai and disposed of it at a rubbish dump. The ransom call from the herbal shop was confirmed to have been made from Tai Po Plaza and the 2nd applicant's palm print was found in the Honda motor car.

42. The 1st ground of appeal is that the Judge misdirected the jury telling them that "they cannot expect anything else but serious bodily harm from putting a vacuum cleaner cord around the neck of a 12-year-old boy and pulling it." It is submitted that this effectively directed the jury to convict the applicant.

43. The 2nd ground is an alternative ground and that is the Judge in so directing was telling the jury that the primary facts would lead to an irresistible inference of an intention to cause serious bodily harm and murder and this was reversing the burden of proof.

44. The passage complained of in the Judge's summing-up appears on p.7 of the transcript but to understand it better, it should be read in its context. The paragraph in which this passage appears is on p.6. The Judge said this:

"Here there is no doubt that there was a killing. We know that the boy died. There is no question that this was a lawful killing. There was no question of self defence here. There is no justification for the killing. And the method of killing employed - strangulation - must have been either intended to kill him, which is what the prosecution contend, or at the very least intended to cause him grievous bodily harm. Now, you cannot expect anything else but serious bodily harm from putting a vacuum cleaner cord around the neck of a 12-year-old boy and pulling it."

45. Looking at this particular passage by itself, there may be some arguments in the 1st ground, but it is necessary for us to consider the summing-up as a whole. Earlier on p.2 at the early stage of the summing-up, the Judge said this:

"... In respect of the facts, you alone make the decisions, you alone are the judges - you decide what evidence that you accept and what evidence that you reject and what evidence you are unsure about.

If I appear to take a view of the evidence, or of the facts, with which you do not agree, you ignore my view. If I mention or emphasise evidence that you consider is unimportant, disregard that evidence. If I do not refer to evidence that you think is important, well, follow your own view and take that evidence into account."

46. Thus what the Judge was telling the jury in this context was that they were judges of facts and it was for them to make up their mind on the facts.

47. The tenor of what the Judge told the jury in the context of these paragraphs was that they could infer from the fact of the 1st applicant putting the cord round the neck of the deceased and pulling it that there was the necessary intent. However, this does not mean that she was telling them that that must be their only inference. The Judge had told them from the beginning that the burden of proof lay on the prosecution and at the end reminded them of this. On p.59 of the summing-up, the Judge said this:

"I remind you again that the burden is on the prosecution throughout the case to make you sure that each of the defendants is guilty of the charge of murder. Primarily the 1st and 2nd defendants have nothing to prove at all.

In respect of the elements of murder, you must be sure in the case of each defendant that they killed LAW Wai-yin intending at the time to kill him or do him serious bodily harm."

48. And then at p.60 of the summing-up, specifically referring to the 2nd defendant, the Judge said this:

"In respect of 2nd defendant, I would remind you that the burden throughout remains on the prosecution to satisfy you of all the elements of the murder so that you are sure of the 2nd defendant's guilt. If you are not sure of his guilt, it is your duty to acquit. If you are sure, you must convict him. That is equally your duty."

49. Thus, the jury were left in no doubt as to where the burden of proof lay. In any case, the defence of the 2nd applicant was to put the prosecution to proof and that he had withdrawn from the joint enterprise before the killing started. Therefore intent to cause grievous bodily harm was never at issue. It was never suggested by the 1st applicant that he did not intend to kill the deceased.

50. The 3rd ground complains about the Judge's direction on "lies" and his failure to direct on alibi. It should be noted that the prosecution case was based on the confession of the 2nd applicant and nowhere did the prosecution rely on "lies" told by the 2nd applicant. It was not necessary for a "lie" direction in these circumstances but the Judge had nevertheless made reference to lies of witness and this is to be found on p.11 of the summing-up. There the Judge said:

"If you decide a witness is lying, consider whether the lie was told to strengthen or establish a case against one or other of the defendants, or whether there is some other minor cause for the lie; for instance, avoiding blame for some error that was made in an answer or a statement. And this may be relevant in view of what Mr McLanachan said to you in relation to the police treatment of the 2nd defendant, or the alleged treatment of the 2nd defendant."

51. We see nothing wrong with this general direction. Mr. Boyton submits that there was evidence of alibi in the statement of the 2nd applicant. We do not agree. Nothing of this nature is seen nor is the allegation substantiated by evidence. The complaint that the Judge failed to give a proper alibi direction in accordance with R. v. Lesley [1996] 1 Cr. App. R. 39 is of no substance. In any case, the Judge had directed the jury on whether the applicant was guilty of murder in these terms:

"Now, mere presence at the scene of the crime, or a failure to prevent an offence is usually insufficient to make someone guilty of the offence. But if you are satisfied so that you are sure that the 2nd defendant was present in pursuance of the prior agreement that would amount to his aiding and abetting the 1st defendant, he would be a secondary party and guilty of the murder."

And later on, in respect of the same subject matter, the Judge said:

"Now it has been suggested on behalf of the 2nd defendant that, although he was originally a willing participant and a participant who knew what was going to happen, that he withdrew from the enterprise before the boy was actually killed."

52. After referring to those parts of the 2nd applicant's interview record suggested by Counsel that might indicate a withdrawal by the 2nd applicant from the enterprise, she continued:

"In some circumstances it is possible for a secondary party to withdraw from the enterprise. It requires, first of all a change of heart, a change of intention by the secondary party plus steps to withdraw from taking part in the offence, and if that is done, it can remove responsibility for the offence committed."

53. The Judge then told the jury what amounted to a withdrawal and that in any particular case, it depended on the facts of that case and there also must be a countermanding of the offence or a clear refusal to participate. Further that must be indicated to the other party and there had to be an effective demonstration that he was wholly disassociating himself from the whole enterprise.

54. Thus the jury were left in no doubt as to what would amount to joint enterprise and in what circumstances a party who has agreed to participate may subsequently withdraw from it without incurring responsibility for the offence eventually committed.

55. There was clear evidence that the 2nd applicant participated in the planning of the kidnapping and murder of the deceased and he assisted the 1st applicant in carrying out the plan. He might have, at one stage of the enterprise, contemplated to withdraw from it but that was after the killing had started and it would have been too late to withdraw. In any case the evidence was that he did not take any active steps to dissociate himself. On the contrary, he turned himself from a secondary party to a principal offender by actual participation in strangling the deceased. The killing was never outside his contemplation. The disposal of the body was part of the plan of the murder. There was ample evidence, if accepted by the jury, for them to convict the 2nd applicant of the kidnapping and murder of the deceased. By returning the verdict of guilty, the jury clearly accepted the evidence. The application for leave to appeal by the 2nd applicant against conviction must be dismissed.

Representation:

Mr. Andrew Bruce, S.C., S.A.D.P.P. (D.P.P.) leading Mr. MAN Pak-ho, Joanthan, G.C. for Respondent

Mr. Michael Poll assigned by D.L.A. for Tsang Chiu-tik (D1)

Mr. David Boyton instructed by M/S B. Manek & Co. for Kum King-fung (D2)