The Queen v. Leung Chi Yuen and Others

CACC000576/1987

BETWEEN

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Coram: Hon. Fuad, V.-P., Penlington, J.A. & Ryan, J.

Dates of hearing: 14 - 17, 20 - 22 March 1989

Date of delivery of judgment: 29 June 1989

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J U D G M E N T

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Penlington, J.A. delivered the judgment of the Court:

1. The Appellants herein were convicted by de Basto J. and a jury on the 10th November 1987 on one count of murder of an Auxiliary Policeman, one count of robbery of the Geneva Watch Company in Tsimshatsui, one count of possession of arms at the time of committing that robbery and five counts of shooting at various police officers with intent to resist lawful apprehension. They were sentenced to death in respect of the count of murder and to very substantial periods of imprisonment on the other charges.

2. There were two unusual features about the trial; firstly that the offences were alleged to have been committed on the 9th August 1981, over six years before trial, and secondly that the Crown's case relied almost entirely on the evidence of an accomplice, Tam Chi Pang ("Tam") who had himself taken a leading part in the events of the 9th August 1981, for which he had been given an immunity. He had been convicted after trial in respect of other similar offences but, at the date of this trial, had not been sentenced.

Background

3. The Crown's case was, that on the 9th August 1981 four men, one of whom was Tan, entered the shop of the Geneva Watch Company at the junction of Carnarvon and Nathan Roads, Tsimshatsui. The other three men were alleged to be the second, third and fourth appellants (D2, D3 and D4). These four men were masked and each was armed with a pistol. Watches to the value of $1.3 million were taken from the shops showcases. While this was going on two other men, alleged to be the 1st and 5th appellants (D1 and D5), were outside in the street acting as lookouts to warn of any possible danger. They were also armed with pistols, D1 and D3 are brothers and they were in fact each alleged to he carrying two pistols, D1 a .38 revolver and a .45 Colt and D3 a Beretta .25 plus another .45 Colt.

4. During the course of the robbery two police officers appeared on the scene and shots were fired on both sides. The six robbers, including Tam, however made good their escape and it was Tam's evidence that he and D3 ran to Chatham Road via Hart Avenue, while Dl, D2 and D5 also ran to Chatham Road but via Mody Road. D4 slipped into a side lane in the vicinity of Wart Avenue and Mody load where he managed to find a taxi and get away. During the course of this escape, two cars were hijacked and there was a large number of shots exchanged between the robbers and the police. Tragically a Pakistani Auxiliary Constable was shot dead and a member of the public was also wounded. Tam also received a gunshot wound but it would seem likely that it was accidentally self-inflicted while running.

5. Each of the defendants denied taking part in the robbery or being in any way involved with what happened both before and after the events. It was put to Tam that while he clearly took part in the robbery he did so with other accomplices, not these appellants.

6. Tam described in detail the preparations made prior to the committing of the robbery including meetings held in the New Territories which various members of the gang were present and, immediately prior to the events, of the guns being distributed to them by Dl. He described the dramatic events of the actual robbery and of his escape from it and he then went on to say what had happened when all the members of the gang met later that day at various times in a flat in Hunghom occupied by D4 and his girlfriend, a Madame Yeung ("Yeung"). The Crown relied on Yeung as being a witness who corroborated Tam's evidence in respect of Dl, D2, D3 and D4 and also relied on the fact that when Dl, D2 and D3 were arrested in February 1984 they were found to be in joint possession of two Colt .45 pistols. This was admitted by consent. There was also evidence that a Baretta .25 pistol was recovered from factory premises in Kwai Chung where it had been deposited by a man giving D3's name and answering to his description. That was also in February 1984. This evidence linking D1, D2 and D3 with pistols of the same calibre as those used in the robbery escape was greatly strengthened by three ballistics experts from the RHKPF who said that in their opinion not only were the weapons of the same calibre but they were the actual guns which had been used.

7. There was further evidence against D4 consisting of a tape-recorded conversation between himself and Yeung in which he appears to have been very upset on learning that she had spoken to the police regarding his role in the affair.

8. None of the appellants gave or called evidence.

9. At the conclusion of the Crown's case and before he summed up to the jury the trial judge quite properly asked for submissions from both prosecuting and defence counsel on the question of what evidence was capable of corroborating Tam. Crown cousel accepted this invitation and made submissions which, inter alia, were that Tam's evidence in respect of D1, D2, D3 and D4 was corroborated by Yeung and that there was further corroboration in respect of D1, D2 and D3 in the evidence of their possession of the guns. The Crown agreed that there was no corroboration in respect of D5 at all. Defence counsel, apart from Mr. Wong for D5, however all stated that they had instructions from their clients not to assist the Court in this matter. This has been the subject of comment by the Crown as to counsel's duty to the court generally but we have considered it only in relation to the grounds of appeal on corroboration which are before us. At our invitation however we have had the benefit of being addressed by leading counsel for the Bar Association and by an Amicus Curiae.

Grounds of Appeal

10. We turn then to the grounds of appeal raised in respect of each of these applicants.

Ground 1. Evidence of other offences (D1, D2, D3)

11. It is submitted that the jury should have been discharged because evidence was inadvertently given by Tam relating to another similar offences which he had committed together with D1. As D1 was arrested together with D2 and D3, and they were in joint possession of pistols, it was further argued on their behalf that, by not too difficult a process of reasoning, the jury may well have come to the conclusion that they were also involved in those other offences.

12. It is quite clear that Tam was examined by Crown Counsel very carefully so as to avoid his giving evidence in chief which would mention the other offences and of any part played in it by any of the appellants. In cross-examination however undoubtedly there were passages from which the jury might have concluded that D1 in particular had taken part in this other robbery. This cross-examination was conducted by four different counsel who appeared for various appellants and occupied a period of over two weeks. Much of it appeared to cover precisely the same ground and emphasized repeatedly matters which were never in dispute - that Tam is a thoroughly bad character who had taken part in another violent armed robbery which involved a murder, for which offence he had yet to be sentenced: he stood to gain a great deal by giving evidence in this case. It was specifically put to him by counsel for both D4 and D5 that their clients had not been involved in this previous robbery. From this the jury could also infer that Dl, D2 and D3 had been so involved, in the absence of the same question from their counsel.

13. We are satisfied that evidence did emerge from Tam in the course of cross-examination which may have indicated that Dl in particular had been involved in the other robbery, together with Tam. While that was not so clear in respect of D2 and D3 the jury might also have come to that conclusion in their case. However the trial judge was clearly fully aware of that danger. When an application was made on behalf of D1 to discharge the jury for this reason he refused the application but, with the agreement of all counsel, then directed the jury regarding the question of prejudice because of possible connection with the other crime. It was agreed that it was better to do it at that stage so as not to emphasize the matter by its repetition in the summing up. The trial judge said to the jury -

"Members of the jury, it has been drawn to my attention that Tam during his evidence made some remarks to the effect that he was forced to commit the robbery for which it is now awaiting sentence by the 1st accused. We do not know that allegation is true or false and I must direct you that you are not concerned with the 'in and out' of that other robbery nor is there any evidence before you as to the people with whom Tam committed that robbery. So you must not speculate about that matter. You are solely concerned with the events surrounding the robbery of the Geneva Watch Company and it is on that alone that you will be asked to return your verdict in due course. Have I made, myself clear?"

We are satisfied that this direction was sufficient to remind the jury that they must consider only the evidence called concerning the offences in the indictment and that there was no prejudice to any of the accused by the evidence linking them with the other robbery that was not removed by the judge's direction. As was said in R. v. Coughlan (1976) 63 Cr.App.R. 33 by Lawton L.J. at p. 38 -

"Before this court, Mr. Owen submitted once again that the judge had exercised his discretion wrongly. We do no agree. The judge made his own assessment of the impact which Guilfoyle's outburst may have made on the jury. It is our experience that if this kind of casual remark is made and no notice is taken of it at the time, it tends to be forgotten particularly when the trial is a long one there are a number of defendants. The judge was in a far better position to assess the likelihood of prejudice to Coughlan than this court is. There is no thing in this point."

There the Court was considering a damaging remark by a witness. Here, while it was not an emotional outburst, what Tam said could have been prejudicial, certainly to D1. However we agree with the dicta of Lawton L.J. and are satisfied that the trial judge cannot be said to have exercised his discretion wrongly in deciding that a proper direction to the jury was sufficient to remove that prejudice.

Ground 2. Use of witness statements during adjournments (all appellants)

14. During the course of cross-examination of Tam it emerged that before the trial he had been supplied with a copy of his committal statement and that during adjournments, of which there were very many, he had used this statement to refresh his memory, as he said, "concerning minor details''. This was the cause of complaint by defence counsel during the trial and was referred to by the trial judge in his summing-up in these terms: "I must direct you that there was nothing wrong in Tam's refreshing his memory by reading his long statements to the Police out of court when he was not giving evidence especially when his evidence covered a long period of time and he was relating incidents which took place 6 years ago.''

15. The authority principally relied on by the appellants on this ground is R. v. Richardson (1971) 54 Cr.App.R. 244''. That was not a case of witnesses refreshing their memory from non-contemporaneous statements during the course of giving evidence but concerned such conduct immediatley prior to giving evidence. Reference was made there to the Home Office Circular 82/1969 which said that -

"Notwithstanding that criminal proceedings may be pending or contemplated, the Chief Officer of Police should normally provide a person on request with a copy of his statement to the police."

In Richardson at 250 Sachs L.J. refers to Lau Pak Ngan v. R. (1966) C.L.R. 443 and cites with approval dicta in that case:-

"Testimony in the witness-box becomes more a test of memory than of truthfulness if witnesses are deprived of the opportunity of checking their recollection beforehand by reference to statements or notes made at the time closer to the events in question."

He goes on to say "refusal of access to statements would tend to create difficulties for honest witnesses but they are likely to do little to hamper dishonest witnesses". Sacks L.J. in Richardson added:

"With those views this Court agrees. It is true that by the practice of the courts of this country, a line is drawn at the moment when a witness enters the witness-box. When giving evidence there in chief he cannot refresh his memory except by a document which, to quote the words of Phipson on Evidence, 11th edition, 1528, 'must have been written either at the time of the transaction or so shorlty afterwards that the facts were fresh in his memory'. (Incidentally that definition does provide a measure of elasticity and should not be taken to confine witnesses to an over-short period.)

It is moreover a practice which the courts can enforce, when a witness is in the box the court can see he complies with that practice."

Strong reliance is placed on the sentence relating to the line being drawn "when a witness enters the witness-box."

16. This decision has been the subject of criticism in an article by Mr. M.N. Howard in (1972) Crim. L.R. 351, and has been further discussed in (1978) Crim.L.R. 408 by Messrs. Newark and Samuel. Counsel also relied on R. v. Graham (1973) Crim.L.R. 628 which involved an accomplice witness where it was held that a period of 27 days between the events and the making of a statement was too long for that statement to be considered as being contemporaneous.

17. While at first sight Richardson appears to support the defence submissions on this point we feel that an important part of the decision is that, whatever the desirability, the court's should not in matters such as this lay down a rule which in practice they cannot enforce. If a witness does have possession of a previous statement, whether contemporaneous or not, and clearly here the statements were made a very long time indeed after the events, there is nothing to prevent him looking at that statement during court adjournments even if he is warned not to do so. Mr. Corrigan argues that as here there was an accomplice witness who was in custody that argument does not apply. The statement could have been taken away form him and the Crown could have ensured that he did not have access to it during the course of his evidence. While Mr. Corrigan does not submit that Tam should not have been allowed to see his statement prior to giving evidence at all, he does say that because Tam was an accomplice, and in particular such an important accomplice, it was wrong to allow him to have access to the statement after he commenced his evidence. He was relating to events which took place some six years before and the defence were entitled to test his recollection without his having the assistance during the course of giving evidence of a statement made long after the events.

18. The question of a witness refreshing his memory before giving evidence from an earlier statement was considered by this Court in R. v. Keung Sai Chung & Others [1986] H.K.L.R. 833. At p.836 Cons V.P. said -

"It is well settled that a witness may refresh his memory before giving evidence from a statement which was, made earlier. The reasons why are set out in the judgment of the Full Court in R. v. Lau Pak Lam (1966) H.K.L.R. 246 and had been approved by the Court of Appeal in England in Richardson. There is nothing in those reasons to suggest that the principle is limited to statements made contemporaneously and indeed counsel for the defendants concedes that no objection could be taken were, a witness to he shown before the trial a copy of his deposition taken at committal proceedings including if appropriate the cross-examination, that then took place."

He goes on to say -

"It seems to us to go to the weight of the evidence no more a matter for the jury. In that respect we might add that as we have earlier indicated the jury were fully appraised of the situation in the present instance."

19. We were concerned with this ground of appeal and have given it most anxious consideration. We consider that while it was not a ground for excluding Tam's evidence from the jury this was a factor which the jury should have been told to take into account when assessing his evidence. We are satisfied that from the judgment in Richardson this Court should not, even in the case of an accomplice who is in custody, lay down that it is a fatal if a witness refreshes his memory from a non-contemporaneous statement during the course of giving evidence and while not in the witness-box. It is undesirable that he should do so and most certainly if he does that should be brought out, as indeed it was here, but a total prohibition would be ignored by the dishonest witness and would lead to the court being deceived as to the correct position. Here although the jury were not given a direction along the lines we have suggested they were fully aware of the position in relation to this aspect of Tam's s evidence. We do not consider this was a material mis-direction.

Ground 3. Allegations put to Crown witnesses (all appellants)

20. In the course of summing up to the jury the trial judge had said in relation to allegations put to the Crown witnesses, and in particular to Tam, by defence counsel that they should not regard such suggestions as in any way being evidence as none of the applicants gave evidence at the trial and no evidence was called on their behalf.

"There were numerous suggestions by counsel for the defence which were denied. All such suggestions are not evidence and you must be careful to ignore them in your deliberation.''

He then goes on to refer to the various suggestions which had been made to witnesses by defence counsel and concluded on this aspect by saying -

"All these and many other suggestions were denied and so they are not evidence. You must take great care to put all these another suggestions, which would deny completely out of your minds. You must take great care that you do not confuse that you do not equate suggestions which are denied with evidence. They are not evidence."

It is argued here that it was wrong to tell the jury that they should totally dismiss from their minds suggestions put by defence counsel because this was in fact the defence case and the evidence should be looked at in that light.

21. We are satisfied that what the trial judge said to the jury was substantially correct - that any suggestion put to a witness and denied by him was not, and should not be considered in any way, way, as being evidence. However it was going too far to say that they should dismiss such suggestions entirely from their minds. These suggestions were, like other questions, put by defence counsel to a witness in an effort to show that his evidence is not to be relied on. The jury should have been told to consider them in that light. However we are satisfied that while it could have been differently worded, this direction was fundamentally correct. Moreover in many parts of his summing-up the judge has himself referred to suggestions nut to witnesses by defence counsel, clearly on the basis that they should be considered in the light of testing the evidence but not being of positive probative value themselves. We do not consider this ground has been made out.

Ground 4. Weakness of evidence relied on as corroboration of Tam. Duty of Counsel (D, D2, D3, D4)

22. Clearly the witness Tam was in every way an accomplice in the alleged offences. Therefore a careful, direction was required as to the manner in which the jury should regard his evidence. It is almost trite to say that this area of criminal law is one which not only concerns the courts daily but is a veritable mine-field and often presents difficulties which decisions of this and other courts have done little to remove. There is little doubt that the standard direction to a jury that it is dangerous to convict on uncorroborated accomplice evidence but they may do so if satisfied it is reliable can cause confusion. The background to each instance of accomplice evidence is infinitely variable and a simple direction that the evidence should be looked at with, suspicion and in the light of all such background, as is now the position in New Zealand, may well be adequate and understandable but clearly the case law here and in England is now so well developed that legislative intervention is required if there is to be a change.

23. As has been noted, quite rightly the trial judge invited counsel for both the Crown and the defence to address him before he summed up as to the law relating to what evidence was and was not capable of corroborating Tam's evidence. In this he followed the guidances of Lord Lane C.J. now re-stated in R. v. Ensor (1989) 1 W.L.R. p.497.

24. As mentioned earlier, in reply to that invitation prosecuting counsel submitted that corroboration of Tam's evidence could be found in both the evidence of the finding of the guns in the possession of D1, D2 and D3, coupled with the ballistics evidence that they were pistols used in the robbery and escape therefrom and also in the evidence of Yeung as regards D1, D2, D3 and D4. Prosecuting Counsel accepted that there was no corroboration in respect of D5. Defence counsel all said that they were instructed not to assist the court in this matter.

25. The trial judge then directed the jury that both the finding of the guns and Yeung's evidence was capable of corroborating Tam.

26. So far as D1, D2 and D3 were concerned there was the evidence of the possession of pistols which were not only of the same calibre as the ones used in the robbery but, according, to ballistics evidence, were the actual weapons which had been so used. There was however a possibility that the guns had changed hands, as may happen within criminal gangs in Hong Kong, there being a gap of over two years between the commission of the robbery and the guns being found. While these were factors to be considered by the jury, this evidence was clearly capable of corroborating Tam. What was very much more in dispute was the evidence given by Yeung. It was first of all suggested that she herself was an accomplice and therefore her evidence could not legally be corroboration at all. This point is now abandoned but it has been strenuously argued that as the evidence did not directly link D1, D2 and D3 with the robbery itself but only their presence with Tam in D4's flat on the 9th August and that it was so inconsistent with Tam's s that it could not be considered corroborative.

27. To summarise Tam's evidence relating to events which occurred immediately after the robbery and the gun fight he said that, together with D3, he went first of all to a flat in Shamshuipo occupied by one Ah Lap. There, because his clothes were blood-stained, he changed. He then went to D4's flat in Hunghom arriving at about 2 p.m. He arrived alone. D4 and Yeung, his wife, were there. He said he had been there before and that he knew Yeung. The flat is extremely small, consisting basically of one room plus a bathroom. D3 came shortly afterwards and a little later D1, D2 and D5. This evidence then placed all five appellants in D4's flat a short time after the robbery together with Tam who was suffering from gunshot wounds. Tam's evidence was that the robbery was discussed.

28. Tam went on to say that while they were in the flat D4 related that while fleeing from the scene he had seen a policeman. He had, however, put his gun away and had fled. D1 however said that he had in fact shot a policeman and D2 said the same. Indeed these two apparently gloated over their actions. D3 also admitted shooting at policemen. Meanwhile D5 had been away to buy a scalpel and on his return Tam was operated on. All appellants helped in this task which was done at about 8 to 9 p.m. D1 and D5 then left the flat and the others, together with Yeung, stayed overnight. From then on D2 and Tam remained in the flat together with D4 and Yeung for about one month.

29. Yeung's evidence of the events on that day was that D4 came home between 12 and 1 p.m. and he was "sweltering'. He said he had pulled "a job" on a watch company and a policeman had been hit. He also said that Tam had been injured. Some 10 minutes later three persons arrived, one of them being injured. She said she had not seen this injured person before but clearly it must have been Tam who she referred to as "Fai Chai Tam". She did not recognise the other two. D4 told her to go to the toilet where she remained for 30 to 35 minutes and all she heard was the sound of cloth being torn. When she came out Tam was present together with D4 but the rest had gone. D4 then told her to go for a walk and she went out until 5 to 6 p.m. When she returned home D2, D4, Tam and one other person were present in the flat. Later D1 came and when he arrived he asked whether "the news" had been broadcast. D4 said it had. Before that the others had been watching the news on the television set relating to the watch company robbery. She went on to say that she then went out and bought meal boxes for everybody in the flat which, at that stage, consisted of D1, D2, D4, Tam and herself. She ate her meal behind a curtain on the bed and she could hear the others speaking in low voices. She then went to sleep. The next day she found D2, D4 and Tam still in the flat. Tam remained for four to five days longer. D2 remained for another two weeks after that.

30. The trial judge referred to Yeung's evidence relating to Tam' arrival in the flat and pointed out to the jury the discrepancy between that evidence and Yeung's. He also pointed out that Tam had said that he knew her whereas she said that she did not know him. He also referred to the discrepancy concerning the period during which Tam remained in the flat after the night of the robbery.

31. There is no doubt that Yeung's evidence offers no corroboration as regards D5. There is also no doubt that her evidence, although inconsistent in some ways, is corroborative of Tam's evidence as regards D4. In respect of D1, D2 and D3 it only places them in the flat with the wounded Tam on the evening of the robbery. It was submitted that they could have simply arrived there as friends of D4, perhaps having heard about the robbery, but there is nothing which directly links them to being present when the robbery was carried out.

32. The classic definition of corroboration is that of Lord Reading C.J. in R. v. Baskerville (1916) 2 K.B. 658 -

"Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words it must, be evidence which implicates him that is which confirms in some material particular not only the evidence that the crime has been committed but also that the defendant committed it."

It is submitted here that Yeung's evidence does not come within that definition because it does not confirm in any material particular that any of these applicants committed the crimes with which they are charged. Even if it had been consistent with Tam's evidence their mere presence in the flag on the evening of the robbery together with Tam is not capable of coming within that definition.

33. This was a problem on which the trial judge sought submissions from counsel. We have been addressed by Mr. Henry Litton, leading counsel for the Hong Kong Bar Association, and by Mr. Anthony Sedgwick, leading counsel appearing as Amicus Curiae, as to what was the duty of defence counsel in such a situation. We have been referred to the Code of Conduct for the Bar of Hong Kong and to various authorities, but Mr. Litton urges that we should not attempt to redraft that Code. The relevant section of the Code upon which counsel at the trial relied in declining to make submissions is Section 154. This reads as follows -

"If some procedural irregularity comes to the knowledge of defence counsel before the verdict is returned, he should inform the court as soon as practicable. He should not wait with a view to raising the matter later on appeal. Defence counsel is not under any duty to draw matters of fact or law to the attention of the court at the conclusion of the summing-up but may do so if he believes it would be to the advantage of his client."

Here clearly this was not a case of a procedural irregularity and submissions were invited not at the conclusion of the summing-up but before it commenced which was the correct procedure for the trial judge to adopt.

34. A first question is having been so invited and having declined to make submissions, inter alia, upon the question of Yeung does this, affect the point of law now raised by the appellants in this Court. We are satisfied that, whether or not a submission is made in the lower court, if evidence is legally not admissible such failure cannot affect that position. If therefore it had been argued here that Yeung was an accomplice and we had agreed with that submission, her evidence could not have afforded corroboration whether the point was taken at the trial or not. Where however it is a question of degree, as is the case here, when it is argued that Yeung's evidence was so inconsistent with Tam's that the Judge should have directed the jury that it was not capable of being corroborative, counsel's failure to make that submission at trial, especially when specifically invited, will usually prevent the point being raised on appeal.

35. Authority for that can be found in Ajodha v. The State (1981) 3 W.L.R. 1 at 12 per Lord Bridge. We do not however consider that he is saying that such a failure is always fatal to the point being taken on appeal because he then goes on to say why in that case it was not. Equally if no submission is made as to the sufficiency of the evidence called in order to satisfy a legal requirement, failure to do so will be taken as indicating that Counsel did not then consider the evidence so deficient. This view will naturally be stronger if an invitation to make such a submission is made but declined. While a considerable number of authorities have been cited to us as to the duty of Counsel to both his client and to the Court, some putting that duty considerably higher than others, what is beyond dispute is that Counsel must take all proper steps which are in his client's interest. In a criminal case that means his acquittal and we would add the words, in case there is any doubt, "at the trial". He is not however obliged to make concessions on fact or refer to authorities which are against his client's interest, even if invited to assist the Court. We would however add that if submissions are made, either on the law or fact evidence and authorities known to Counsel which are apparently contrary to those submissions should be referred to. This avoids any suggestion that Counsel is deceiving the Court, which clearly he must not do, and also enables him to dear with them, in furtherance of his client's interest.

36. It follows from this that what is wrong, and we do not suggest it happened here, is for Counsel to refrain from making a submission because he considers it will be a good point to argue on appeal if his client is convicted. That must be against his client's interest to secure his acquittal at the trial and also, the point not being taken below,it may well fail on appeal.

37. Here what defence counsel said in reply to the Judge's invitation was most unhappily worded. We have little doubt that if they had simply said they did not wish to make any submissions on corroboration it would not have caused the appearance here of counsel for the Bar Association or of the Amicus Curiae. The effect however is the same. In the absence of such submissions the Judge was entitled to assume that there was no ground on which the defence could argue that the Judge should direct the jury that Yeung's evidence and that of the finding of the guns was not capable of corroborating Tam. Whatever the duty of Counsel is to the Court, there is without doubt a duty to the client to have evidence which is against the client's interest excluded by the judge from consideration by the jury. Here it is now argued that the evidence of Yeung should have been so excluded en two grounds. If such was the opinion of Counsel at the trial these submissions should have been made then. The judge was entitled to rely on Counsel for the accused to advance any argument they considered proper as to why he should exercise his discretion in excluding any of the evidence as corroboration, this being clearly in their client's interest.

38. These grounds, not having taken at the trial when they should have been if it is in the interest of D1, D2 and D3 to do so, must be looked at in that light.

39. Here we have no doubt that Yeung' evidence was independent. We also consider that the presence of some of the applicants together with Tam, who was suffering from gunshot wounds, in the circumstances described by Yeung within a few hours of the robbery did tend to confirm in a material particular that these applicants were involved in the crimes. We have regard in particular to D1's inquiry on arrival if the news had been broadcast yet - this clearly referring to news of the robbery.

40. We have given anxious thought to the second submission made that Yeung's evidence was so inconsistent with that of Tam that it could not afford legal corroboration of it. Bearing in mind that the point was not taken before the trial judge that he should direct the jury that they should pay no regard to this evidence, we consider that he was correct in allowing the evidence to go before the jury as being such as could corroborate Tam but that they should have regard to the fact that there were these major discrepancies. It may be that the discrepancies which were vividly drawn to the jury's attention by defence counsel, should have been gone into in more detail by the trial judge in his summing-up. However he did draw their attention to the major ones. We do not consider that a ground has been made out that this evidence was not capable of corroborating Tam. We are satisfied it was a matter for the jury to put such weight on the evidence as they thought fit.

41. Before leaving this ground of appeal and while we accept Mr. Litton's invitation not to re-draft the Code of Conduct or go into the duty of Counsel to the Court and to his client other than as it affects the validity of the grounds of appeal raised here, we would draw attention to the wording of a recent letter to the Lord chancellor from the Treasurers of the Inns of Court regarding proposed changes in the legal system in the United Kingdom:

"We would stress our view that the system of justice in England and Wales, with its emphasis on the common law, precedent and adversarial court work, includes both the Judges and the advocates in court or chambers. The independent advocates have a duty to the court which takes precedence over that which they owe to their clients and is thus an integral part of the system of justice. Thus, apart from the constitutional independence of the judiciary, a critical feature of the system is the independence of the advocate and his duty to the court. Together, Bench and Bar constitute a single instrument of justice."

Ground 6. Ballistics evidence (D1, D2, D3)

42. It was argued for D1, D2 and D3 that the ballistics evidence linking the guns which were or had been in their possession to those used in the robbery, is totally unsatisfactory and the trial judge should have so directed the jury. Clearly it was very important evidence indeed in the light of Tan's involvement in the crimes.

43. That evidence came from three Police Ballistics Officers, Superintendents R.C. Nicoll, H. Healy-Brown and Senior Superintendent A.M. Cimino, the officer in charge of the Ballistics and Firearms identification Bureau of the Royal Hong Kong Police Force. The cumulative effect of the evidence of these three officers, each of whom gave evidence concerning their qualifications and training was that spent cartridge cases had been recovered from the scene of the robbery and that those cartridge cases bore certain marks. These marks are formed on the soft brass of the cartridge case by the explosive force which, while propelling the bullet through the barrel of the weapon, in accordance with one of Newton's basic principles of physics also exerts a strong force pushing the cartridge case back against the breech-block of the gun. Each gun has minor but distinctive marks on that breech-block which in turn mark the cartridge case in a certain manner. Those marks can vary depending on various factors such as the force of the charge and the softness of the maternal used to make the cartridge case. However by the use of a comparison microscope an expert is able to say whether or not two cartridge cases have been fired from the same gun.

44. When the weapons were found in the possession of D1, D2 and D3 they were test fired and the cartridge cases were recovered. These cartridge cases were then compared with the various cartridge cases found at the scene. Each of the experts said that in his opinion some of the cases found at the scene had been fired from the guns found in the possession of D1, D2 and D3. The guns themselves were produced, as were the various cartridge cases found at the scene. However the spent case's from the test firing were not produced and had apparently been thrown away. No photographs taken through the microscope were produced.

45. Superintendent Healey-Brown gave evidence of examining the recovered cases and the ones test-fired in the seized pistols. He said that he was satisfied that some of the cartridge cases found at the scene were fired by those guns, his opinion being based on the marks made by the breach-blocks.

46. Superintendent Nicoll said that he had examined the cartridge cases recovered from the scene in 1981. At that time no guns had been found. From his examination at that time he had come to the conclusion that the .45 cases had been fired not from 2 guns but from 3. However this opinion was based on the limited number of eases available. When the guns were recovered and test-fired, unlimited numbers of such cases became available and he changed his opinion and was satisfied that in fact the .45 cases had been fired by only 2 guns, the ones found in the possession of D1, D2 and D3.

47. Both Superintendents Nicoll and Healey-Brown said that no photographs had been taken through the comparison microscope as such photographs being of a 3 dimensional object would be of little value and in fact would be misleading.

48. Senior Superintendent Cimino gave evidence of also examining the test and recovered cases and of coming to the same conclusion as the other to two witnesses, and said that photographs can be taken through the microscope which would show the markings on the cases but that in his view such photographs could only be interpreted by an expert and were, if produced, only likely to confuse a jury. He said that so far as he knew such photographs were never produced in courts in the United Kingdom, in the United States of America, or in other Commonwealth countries.

49. Each of the ballistics experts was cross-examined at length by Mr. Westbrook for Dl and D3 and by Mr. King for D2. Superintendent Nicoll in particular was asked in detail why he had changed his opinion as to the .45 cartridge cases between 1981 and 1984, when the guns were found.

50. The position was then that the jury were invited to accept firstly that the evidence was coming from experts. Each one was questioned about their qualifications but there certainly was sufficient evidence for the jury to be satisfied that they were qualified to give expert evidence. Secondly that these experts had compared the various cartridges and had come to their conclusions, which the jury simply had to accept or reject. There was no other factual evidence such as photographs or the test cartridge cases themselves, to assist in deciding that matter.

51. The question of expert's evidence in the context of fingerprints was recently considered by this Court in R. v. Tam Wing Hung Criminal Appeal 511 of 1987. The Court referred to its earlier decision in R. v. Chan Kam Tak & Another Criminal Appeal 204 of 1987, and dicta of Silke V.-P. therein was approved -

"The difficulty is that it was not the strict proof which is required in a criminal case. A defendant is perfectly entitled to say to the Crown 'prove your case'. The function of an expert is first to give his opinion upon an issue in the case based on inferences which he, draws from perceived facts as a result of his know ledge and experience second, to give evidence of fact which his training has equipped him to perceive but which would not be observed by a layman. Third: (referring to Davie v. Edinburgh Magistrates (1953) S.C. 34 at 40) `to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of his conclusions, so as to enable the judge or jury to form their own judgment by the application of these criteria to the facts proved in evidence.'.......

When, as here, they are not, then a warning that the opinion becomes the 'bare assertion' of the expert and could well be considered to be of little weight, but is one of the factors which lies far the consideration of the jury, becomes desirable."

Here the evidence was of the observation of ballistics markings made on cartridge cases by particular guns. We are satisfied that the evidence that these observations were made and the resemblances between the cartridge cases found is clearly admissible, in the same way as evidence of an eye-witness as to identification. The question however is what direction should be given to the jury as to the weight of that evidence.

52. Where the evidence is as to the identification of persons the witness does not need to be an expert, though there are recognised warnings which have to be given regarding such evidence. However when evidence is tendered as to the conclusions to be drawn from the observation of such things as fingerprints and ballistics marks the evidence is only to be given weight if it comes from an expert. If that requirement is satisfied it is for the jury to put such weight on the evidence as they think it deserves. In doing that they may be assisted if the expert can point to lines on photographs of fingerprints or to marks on such things as cartridge cases. Photographs of fingerprints are in practice almost always produced even though a jury may well have great difficulty in understanding them but if they were not so produced the evidence of the expert's opinion, while still admissible, may be given little weight. Here the experts said that while photographs can be taken through the special microscope used, because the objects being examined are 3-dimensional, unlike 2-dimensional fingerprints, such photographs can be very misleading and are now never produced. This evidence we found somewhat surprising as we are aware of cases when such photographs have been produced but it does find support in Gibson on Criminal Evidence (Canada) Cap. 12 where the learned editor also states that, due to the 3-dimensional factor, photographs of ballistic comparisons are rarely introduced. We have not however been referred to any other authority for that view.

53. The trial judge went through the ballistics evidence with the jury with care, in particular the evidence given by Senior Superintendent Cimino and to the evidence given by Superintendent Nicoll that he had changed his opinion between 1981 and 1984 and the reasons for doing so. He referred to the cross-examination, principally by Mr. Westbrook for D1 and D3, and reminded the jury that photographs were not produced as they were considered by the experts to be misleading to a jury. He went on however to say -

" Speaking for myself - and I have already directed you that you may ignore any comments I may make on the facts which do not appeal to you - I would find it extremely difficult not to accept that the ballistics officers who gave evidence before you are not experts in their field, 2 having spent 11 years exclusively in ballistics and Mr. Cimino, the head of the Ballistrics Bureau in Hong Kong, having been exclusively engaged in that field for 28 years. Similarly, I would find it difficult not to accept the conclusions they came to. But as I have said before," these are matters solely within your province.

Again, it was not suggested to Mr. Cimino that he was not an expert nor that the conclusions he came to were wrong or might be mistaken." (emphasis added)

54. Mr, Westbrook, counsel for D1 and D3 at trial and Mr Corrigan's junior here argued this point before us and complains that the later part of this direction was simply not correct. As counsel he was not in possession of any evidence such as photogranhs from which he could suggest to Mr. Cimino and the other experts that they were wrong. He did however, in lengthy cross-examination, clearly suggest that they might be wrong. He was however not in possession of any evidence from the Crown which would enable him to really test the conclusions that the experts had comet to. Evidence was given that a former head of the Ballistics Bureau, Mr. Hill, was available and was undoubtedly an expert in the field. The Crown would have made available to the defence the gun and they could have asked their own expert to do some test firing and to make his own comparisons. When this evidence was given the trial judge offered to adjourn the hearing to enable such further tests to be done. This offer was not taken up. It would have been very unusual for a jury trial to be adjourned for such a purpose.

55. The question of the non-production of records of scientific tests carried out by experts has come before the courts but not frequently.

56. In R. v. Medvedew 43 1979 C.C.C. (2nd) 434 a "voiceprint" was made of the accused's voice over a telephone and expert evidence was given that it was the same as a person who rang a school with threats of placing a bomb. Matas J.A. (Monnin J.A. concurring) approved the trial judge's direction that while the jury should consider that the tapes and spectrograms made from them were not produced and the evidence that you needed to be an expert before you could draw conclusions from them, non-production was not fatal. These were matters fairly put to the jury for their consideration of what weight could be put on the evidence. O'Sullivan J.A. in a full judgment dissented from that view. In R. v. Smit 1952 3 S.A.L.R. 447 in relation to fingerprints when photographs were not produced again it was held that that did not render the evidence inadmissible but was relevant as to weight.

57. Here the trial judge did express his own opinion on the ballistics evidence although he left it to the jury to form their own conclusion.

58. While we are satisfied that the evidence given by the ballistics experts, unsupported as it was by photographs or even the production of all the relevant cartridge cases, was admissible, the greatest care was required in the direction to the jury as to the way they should approach that evidence. While what was said as to the possibility of photographs being misleading to a jury of laymen such photographs, if available could have been put to another expert for his opinion. To suggest that more cartridges could have been test-fired, the cases recovered and another expert called in to examine them, in mid-trial, is to place a burden on the defence, which we do not consider is proper. We understand that at the preliminary hearing, which is the time when these matters should be resolved, the defence had asked for photographs to be made available. If they were not in existence and it was felt that in any event they would be misleading, that was the time when the offer should have been made to make available either both sets of cartridges for examination by a defence expert or, if one set of cartridge cases had been destroyed, the pistols themselves for further test-firing.

59. We find that the argument made by Mr. Westbrook on this point is well made out. He could not put to the Crown's expert witnesses that they were wrong because he did not have evidence to support that allegation. However he had clearly put to all those witnesses that they might be wrong and the jury should have been directed accordingly. This was, in our view, a material misdirection on a vital part of the Crown's case as regards D1, D2 and D3.

Ground 7. Lack of direction on manslaughter (D4 only)

60. So far as corroboration was concerned there was no ballistics evidence against either D4 or D5. So far as D4 was concerned the evidence of Yeung clearly placed him in the flat assisting Tam with his injury; he admitted to her that he had taken part in the robbery of a watch shop and a policeman had been hit, and there was further evidence relating to certain tape-recorded conversations between him and Yeung which were clearly corroborative of her evidence. Mr. Sarony, for D4, while joining in the grounds of appeal relating generally to the issues such as the use of his committal statements by Tam to refresh his memory during adjournment, specifically complains that the trial judge should have directed the jury that there was evidence that D4 did not have the common intention with the other applicants to use his gun against any persons, particularly police officers, who might prevent their escape from the scene of the robbery. It is argued that notwithstanding the fact that there was evidence that he had a loaded gun and knew that the others had loaded guns, when he came back to his flat he said that when confronted by a police officer he had not fired but he had put the gun away and fled. This, it is suggested, was evidence which the jury should have been directed to consider very carefully as showing that firstly he was not a party to the common intent shared by the others as to the use of the guns and that, secondly, if he was initially a party to such common intention he had by his actions withdrawn from it.

61. Clearly there was ample evidence before the jury that each of the men who went to rob the Geneva Watch Company was armed with at least one loaded gun. The jury was carefully, and we consider accurately, directed on the law of common intent. No complaint is made of that. If when they went to carry out the robbery each participant was aware that if necessary guns would be used in the manner that they were, each is liable for the others' action. That D4 did say to Yeung that he had chosen not to use his gun against the police officers who confronted him cons not only put to the jury by the trial judge in his summing-up but it was repeated to them. He said -

"I repeat that after the 5th accused left the 4th accused said he had seen a uniformed policemen who saw him so he immediately tucked the gun into his waist and ran into a lane."

These matters were fully before the jury and it was for them to decide whether D4 was a party to a common purpose to use the firearms during the course of the robbery, if required or if he had later withdrawn from that common purpose. It is true that there was not specific direction as to the question of manslaughter. We consider however that, if anything, this was favourable to D4. If the jury had been in doubt as to whether D4 was a party to the original purpose or whether having been such a party he later withdrew from it would have meant that he would be convicted not of murder but of mans laughter because, if they were satisfied only that he did take part in the robbery, he must have known that this was in itself an unlawful act and it resulted in the death of a police officer. On the judge's direction here they would not have convicted him of manslaughter but they would have acquitted him on the murder count entirely. Mr. Sarony argues, and not without merit, that human nature being what it is, the jury, faced with only two alternatives convict or acquit of murder - may well have been reluctant to acquit in the face of the very strong evidence of D4's part in the robbery but might well have accepted the evidence referred to above and convicted of manslaughter if that had been open to them.

62. We have considered that argument fully but feel we must accept that the jury reached its verdict on the directions given and if they did have a doubt as to D4's hart in the common design to use the guns would have simply acquitted him of murder. They did not do so.

63. The evidence against D4 was overwhelming and we did not consider that the trial judge was wrong, on the evidence, in not directing the jury on the alternative verdict of manslaughter.

Ground 8. Dates of appearances and absence from Hong Kong (D5 only)

64. The case against D5 was entirely that of Tam's evidence as to his participation in the preliminary meetings leading up to the robbery and in the robbery itself. There was no corroboration whatever of Tam's evidence in relation to D5.

65. While again joining in the general grounds of complaint relating to the evidence generally there was a specific ground of appeal in relation to D5 based on an agreed statement of his absence from Hong Kong during certain periods in 1981. These were from the 2nd to the 16th July, from the 19th July to the 2nd August and from the 12th to the 16th August. Tam's evidence in relation to the meetings which took place prior to the robbery was that the first of such meetings took place at a football pitch in Tai Wo Ping and this was "about 2 or 3 weeks before the robbery". D5 was present at that meeting. There was then another meeting at a restaurant in Yaumatei some 3 days after that first meeting on the football pitch. At that meeting D5 was also present and it was decided that the robbery would take place and that a suitable van should be stolen to be used as a getaway vehicle. Some of them then immediately went out to look for one but could not find a suitable van. However the following night they went out again and this time did find a van, which was duly stolen. Again there is agreed evidence that the date that the van was stolen was the 22nd July. This was at a time when D5 was not in Hong Kong: The trial judge dealt with this matter by reminding the jury that Tam had only said that that meetings took place "about 2 or 3 weeks before the robbery" and he was relating to events which took place some 6 years ago. He suggested to the jury that the word "about" could be given a very liberal interpretation.

66. What is however a specific ground of complaint is that Tam was very definite as to the events which took place after the first meeting in the Yaumatei restaurant. He said specifically that after that meeting he went out with some of the others to look for a van. It could not be found. They went out the following night to look for a van and found one. This van was then stolen and its licence disc replaced with another one which had already been misappropriated. The licence disc and number plate shaving been changed the van was then left overnight. The following day the wan was cleaned so that no fingerprints would be found on it and that evening there was another meeting in the Yaumati restaurant, at which D5 was again present and he was told that a vehicle had been "fixed up". While therefore Tam may have been vague as to the date of the original meeting on the football pitch he was very specific as to the dates of the two meetings in the restaurant, in relation to the known date when the van was stolen. This was evidence which was highly relevant and essential to the defence and required to he put before the jury accurately. The judge said in relation to this:-

"And it is also agreed that the licence plate was replaced on 15th July and that is already more than 3 weeks before the robbery and a van was stolen on 22nd July 1981 which is just over 2 weeks before the robbery. And as I have told you before, if TAM had estimated that the Tai Wo Ping meeing had taken place not about 2 or 3 weeks but about 5 or 6 weeks before the robbery, then everything would fall into place, including the stealing of the licence disc, the date the van was stolen and the dates the accused was away from Hong Kong.''

With all due respect that cannot be correct if Tam's evidence relating to the meetings in the Yaumati restaurant and the stealing of the van are to be accepted.

67. For the reasons we have given we must regard the direction as to Tam's evidence of D5's presence at the Yaumatei restaurant meetings, in relation to the known date of the stealing of the van and his absence from Hong Kong, as a material misdirection.

68. We are therefore of the view that there was a misdirection by the trial judge as regards the very important ballistics evidence in respect of Dl, D2 and D3, and as regards the dates of events leading up to the robbery as given by Tam in comparison with his agreed absences from Hong Kong in relation to D5.

69. With some reluctance we do not consider that the evidence of the ballistics experts and that of Tam as regards events before the robbery compared to D5's absence from Hong Kong were such that even without them the jury must still have brought in the verdicts they did and these are not instances where we should apply the proviso in Section 83(l) of the Criminal Procedure Ordinance, Cap. 221.

70. The appeals of D1, D2, D3 and D5 are therefore allowed. The convictions quashed and the sentences set aside.

71. The appeal of D4 is dismissed.

Representation:

A.J. Corrigan, Q.C. and Simon Westbrook (D.L.A.) for 1st, 2nd and 3rd appellants

Neville Sarony, Edward Laskey (Chan, Lau & Wai) for 4th and 5th appellants

Anthony Sedgwick, Q.C. and Denis Mitchell, Amicus Curiae

Henry Litton, Q.C., Alan Hoo & Wong Yan Lung for Hong Kong Bar Association

J.K. Findlay, Q.C., D.P.P., A.A. Bruce, S.C.C. and Miss Evena Chan, S.C.C. for Respondent