HKSAR v. Lo Hon Ming and Others

CACC 107/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 107 OF 2007

(ON APPEAL FROM HCCC NO. 89 of 2006)

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BETWEEN

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Before:   Hon Stuart-Moore VP, McMahon and Wright JJ

Date of Hearing: 2 September 2008

Date of Judgment: 12 September 2008

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J U D G M E N T

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

Background

1.The applicants, Lo Hon-hing (D1) and Li Cho-ming (D2) were convicted with Leung Chi-hung (D4) on 25 March 2007 of murder following a trial before V Bokhary J and a jury.  Lam Tse-lik (D3) was acquitted of murder but convicted in the alternative of manslaughter.  D1 and D2 each received a life sentence on the following day (as did D4) whereas D3 was sentenced to 12 years’ imprisonment.

2.D1 and D2 sought leave to appeal against conviction.  Originally, D3’s application was confined only to sentence but subsequently he sought leave out of time to appeal also against his conviction.  At the commencement of these proceedings, D3 indicated that he no longer intended to pursue his application in regard to sentence and, accordingly, this application was dismissed.

Prosecution’s case

3.The single count on the indictment was a joint allegation of murder.  The prosecution’s case was that the applicants had together played a part in the killing of Ho Wai-hai (the deceased) on 22 September 1999.  The deceased was a 40-year-old newspaper vendor who was attacked from behind and chopped to death by a masked man at her newspaper stall outside the Ying Bun Restaurant in Nam Cheong Street, Shamshuipo.  The armed man responsible for physically attacking the deceased was D4.

4.The prosecution alleged that D2 and D3 were also armed and masked while in the immediate vicinity of the attack on the deceased and that D1 was acting as a lookout nearby.  There was a fifth participant who was involved as the driver of the vehicle in which the killers were brought to the scene.  This man was known as Lin Chung-wai but also sometimes known as ‘Sze Ngan wai’ or ‘Ah Wai’.

5.The principal evidence against each of the applicants, and the only evidence directly connecting them to the offence, consisted of their admissions to the police following their arrest.

6.Having regard to the nature of the grounds of appeal, we need not provide more than a general overview of the prosecution’s case.  In short, the apparent motive for killing the deceased was that a complaint had been lodged with the Oriental Daily on behalf of the deceased by her husband, Mr Lau, to the effect that the local newspaper distributor, ‘Ching Wui’, had introduced a new practice which no longer allowed newspaper vendors to return unsold copies of the Oriental Daily.  This resulted, therefore, in the vendors having to pay for copies of that newspaper which they were unable to sell.

7.In due course, Mr Lau received a telephone call from Ching Wui and, on 12 September 1999, Mr Lau went with the deceased to a meeting attended by representatives of Ching Wui.  These included a Mr Michael Tsoi who was in charge of Ching Wui.  The deceased for her part had become the treasurer of an association of newspaper vendors which was formed because of Ching Wui’s newly introduced practice.  No agreement was reached at the meeting and Mr Tsoi was told he would be contacted.

8.On 15 September 1999, at a meeting of the Shamshuipo newspaper vendors, a decision was taken to oppose the new practice and the deceased was nominated to inform Ching Wui.  It was arranged that there would be a meeting on 19 September 1999 for the purpose of informing Ching Wui of their decision.  Another newspaper vendor, Lee Nim-wan (PW5) went to the meeting where, amongst those present he saw not only the deceased but also Mr Tsoi of Ching Wui.  The meeting, apparently left Mr Tsoi in a somewhat agitated state when his proposals were not accepted by the newspaper vendors.  Mr Lee also referred to a telephone call he had received before the meeting from a person, whom he believed to be Mr Tsoi, and to a visit to his newspaper stall by a number of persons who had threatened him about making complaints concerning the newly introduced newspaper distribution practice.

9.On 22 September 1999, some of the events immediately prior to the attack on the deceased at about 5.10 am were witnessed by a hawker (PW2).  He described seeing three masked men getting out of a vehicle, at least two of whom were carrying knives.  They all ran across the road towards the Ying Bun Restaurant.  It seemed to him that the driver also got out of the vehicle and then, a short while later, he saw the three men wearing masks run back to the vehicle.  At about the same time, a night-watchman (PW1) heard cries for help and he discovered the deceased on the ground bleeding from her wounds. 

10.The deceased was already dead before she reached the Caritas Medical Centre in an ambulance.  Dr Wong Hon-man who conducted the post mortem later that same day found three serious knife wounds to the deceased’s body.  The first wound was to her back.  This had severed the 9^th and 10^th ribs and had gone through several layers into the right lung causing it to collapse.  The 2^nd wound was to the deceased’s left arm.  This had severed the underlying muscles and chipped off a piece of the arm bone.  Two small metallic fragments, assumed to be from the cutting implement, were found embedded in the deceased’s arm bone.  The 3^rd wound was to the deceased’s left leg.  This had severed the underlying muscles, a main artery and nerves.  The underlying knee joint had been cut open by the blow.  The cause of death was extensive bleeding and the disturbance to the deceased’s respiratory function.

11.As a result of an eventual breakthrough in the police investigations, the applicants were arrested in October 2005.  In interviews held subsequently, each of them was alleged to have made admissions about his involvement in the offence.  However, at trial, these confession statements were challenged by the defence on the basis that they were not made voluntarily.  The judge, in the light of the evidence she had heard, ruled in each case that the confessions were voluntary and permitted this evidence to be admitted.

12.When D1 was arrested on 15 October 2005, he replied:

“Ah Sir, it was Michael Tsoi who told me to find someone to do the whole case.  I didn’t chop the female with a knife.”

Then, in a lengthy interview which followed, he gave a full account to the police about how Michael Tsoi had instructed him to give a woman a lesson by chopping her with knives because she had hindered him in earning a living.  He described how he met with a man called ‘Ah Lo’ who he was with when false car registration plates and knives were collected from somewhere in Yuen Long and put into the boot of Ah Lo’s car.  He later saw that the knives were butcher’s knives which had handles wrapped in cloth.  Then, D1 met up with Ah Lo and Lin Chung-wai and others in a café in Jordan.  He said that money was given to them to go to a sauna establishment.  He went on to describe how the attack on the deceased was carried out after they had been to the sauna.  He said that three men in the back of the car driven by Lin Chung-wai were all carrying knives and were masked as they ran out.  He maintained that he had told the three of them only to beat up the deceased with fists and not to use knives.  He said that the knives were carried to “scare” people who might come to help the deceased.  D1 stated that he stood by as a lookout in case any policemen were in the vicinity.  Of the attack group, D1 said that he only knew D2.

13.D2 was also arrested on 15 October 2005.  His account was that Lin Chung-wai had called him and told him to return from the Mainland to do something.  D2 did as he was told and went to a restaurant in Nathan Road where he met up with Lin Chung-wai, D3 and D4.  After that, they went to a sauna place together before they drove to Nam Cheong Street.  He saw D3 and D4 holding knives and he observed D4 chop the deceased at least twice.  They then drove to Yuen Long where the bag containing the knives was dropped off and D2 was taken back to Wong Chuk Hang by Lin Chung-wai. 

14.D2’s admission up to this point amounted to a description of standing by and watching what others were doing.  However, he changed his stance when he was shown a witness statement made by Lin Chung-wai.  He then admitted he had been asked to be a lookout and that he was aware that the deceased was going to be chopped with knives.

15.Immigration records showed that D2 entered Hong Kong from the Mainland at 11.05 pm on 21 September 1999 and that he returned to the Mainland at 10.43 pm on 22 September 1999.

16.D3 was arrested on 19 October 2005.  His immediate response was:

“Ah Sir, it has nothing to do with me.  I scared her.  It was Cheung Mo Hung [D4’s nickname] who chopped her.”

17.D3 later outlined his involvement, explaining that D2 had wanted a helping hand because of a dispute over a newspaper.  He went off with D2 and D4 to a massage establishment and later Lin Chung-wai drove them and another person he did not know to Nam Cheong Street.  He, together with D2 and D4, put on face masks.  He took a beef knife with him when he left the car and he saw that D2 and D4 also had knives.  Then he saw D4 chop the deceased twice.  They all then ran away and were driven to Yuen Long.  When he heard on the news that the deceased had died, he left Hong Kong with D2 and D4 to hide in Shenzhen.

18.D3 and D4’s travel records confirmed their departure for the Mainland at 10.43 pm and 10.45 pm, respectively, on 22 September 1999.

Defence case

19.D1 maintained at trial that he had not known his co-defendants before his arrest and his involvement with Lin Chung-wai had ended after they fell out over football betting.  He went on to describe a catalogue of police violence against himself before, according to him, being induced to make admissions.  This was on the basis that if he was treated as a “tainted” witness, he would be convicted of manslaughter and might not go to prison.  He then stated that in the interviews with the police which followed, he was merely stating what the police had coached him to say.  As time went on, police continued to trick him and eventually he complained in the Magistrates’ Court about being assaulted.  This was followed up by a formal complaint to the police in which he said that he had been assaulted on the abdomen and on the front of both shoulders.  However, the actual complaint form (Exhibit D1) stated that the assaults were to the head and chest.

20.D2 also testified at trial.  He said that his friendship with Lin Chung-wai had ended in 1999 after they been involved in a fight and that he did not know Michael Tsoi or D1.  D3 was a friend and through him he had met D4.  He described how police had savagely beaten him up at the time of his arrest.  At the police station, he was shown Lin Chung-wai’s statement and told to memorise it or he would be beaten up again.  He alleged, also, that he was denied access to a lawyer and he was induced into saying what he had been coached to say when he was promised that he could speak to his girlfriend if he cooperated.  He was eventually allowed to see his girlfriend and a lawyer.

21.At trial, the lawyer was called to give evidence that D2 had told him he had made no admissions in his first interview but had made admissions in his second interview because of police assaults.  D2 also complained to Dr Chau Chi-wai (PW28) at Queen Elizabeth Hospital about being assaulted by the police.  Thereafter, D2 said he was assaulted a second time by the police and he said that he again asked to see a doctor.  On this occasion, he was examined by Dr Tsang Wai-tsan (PW22) at the Caritas Medical Centre.  D2’s allegations were repeated to the magistrate in front of whom he appeared when he was remanded on the charge of murder.

22.Similarly, in D3’s case, the defence amounted to a total denial of involvement in the killing and allegations were made that his confession had been extracted as a result of police brutality which had caused him to agree to being coached as to what he should say.  He was told that if he said he had not been involved in the chopping itself, he would be convicted only of manslaughter. 

Medical evidence relating to allegations of police assaults

23.The prosecution called Dr Chau Chi-wai and Dr Tsang Wai-tsan to give evidence about their examination of D2 and, likewise, they called Dr Kwong Ngar-ming (PW26) to give evidence about this examination of D3.  Originally, this doctor had given evidence in the voire dire for the defence.  None of the doctors provided any real support for the defence and Dr Kwong’s evidence materially contradicted D3’s defence.

Grounds of appeal

24.On D1’s behalf, Mr McCoy SC advanced two grounds of appeal.  In the first of these, he submitted that the judge had misdirected the jury in law in regard to joint enterprise and the drawing of inferences by “confusingly and wrongly directing the jurors to approach their fact-finding function by excluding any exculpatory view of the evidence that was not reasonably possible”, and easier still to conclude what “may have been”.

25.As the same ground was effectively advanced by Mr Bruce SC for D2 in two grounds of appeal, we can deal with both of these applicants together on this point.  The passage in the summing up which is impugned reads as follows:

“As to using your common sense, you may ask yourselves this. Suppose a group of men go somewhere for the purpose of an attack on a person, whether he goes to act as actual attacker or as lookout, is it reasonably possible that any member of the group would not know what sort of victim it would be? Is it reasonably possible that he would not know what sort of attack it would be? Or do you think that the only reasonable inference in this case is that each man knew all of that? As always, you are the sole judges of fact: not speculating but using your common sense; trying the case fairly and upon your view of the evidence as the sole judges of fact, you do your duty as the jury” (Appeal bundle p.63) (Emphasis added)

26.Mr McCoy contended that this “crucial expression”, in terms of the jury “evaluating the prosecution case by excluding any exculpatory view of the evidence that was not reasonably possible” was previously unknown to the law in this context and amounted to an objective approach being taken to decide intention which at the same time “violated the burden of proof”.  He described the test propounded by the judge as being “over-demanding”.  All that the judge needed to do, he suggested, was to use the time-honoured phrase “may it be true” when posing this important question about D1’s understanding of the nature of the attack.  If the account D1 had given “may have been true” then it could not be said that he knew that knives would be used to attack the deceased and this, in turn, would have had an important bearing on D1’s intent.  Mr McCoy submitted that it was easier to conclude that something is possible as opposed to being “reasonably possible”, and easier still to conclude what “may have been”.

27.Mr Bruce submitted that while it would be open for the jury to acquit if they thought a particular conclusion was a “reasonable possibility”, it would also be open to acquit if that conclusion was “possible” so that the judge’s phraseology assumed “too high a standard for determining to acquit”.

28.Mr Zervos replied by pointing out that this passage in the judge’s summing up arose in the context of the approach to be taken towards the jury’s application of common sense.  It formed no part of the judge’s directions on the burden and standard of proof about which the jury were constantly reminded throughout the summing up.  The phrase “reasonably possible”, he argued, was merely used by way of example when deciding how to exercise common sense and, in any event, something which was not reasonably possible would be purely speculative.  Mr Zervos also pointed to the fact that the expression “reasonably possible” was by no means unheard of in analogous situations and, to take one example, he referred to its use by Sir Robin Cooke in Chan Wing-siu v R [1985] AC 168 at 177-178 when dealing with joint enterprise in a passage cited by Bokhary PJ in Sze Kwan-lung and Ors v HKSAR [2004] 7 HKCFAR 475 at 488-489, which reads:

“The test of mens rea here is subjective.  It is what the individual accused in fact contemplated that matters.  As in other cases where the state of a person’s mind has to be ascertained, this may be inferred from his conduct and any other evidence throwing light on what he foresaw at the material time, including of course any explanation that he gives in evidence or in a statement put in evidence by the prosecution.  It is no less elementary that all questions of weight are for the jury.  The prosecution must prove the necessary contemplation beyond reasonable doubt, although that may be done by inference as just mentioned.  If, at the end of the day and whether as a result of hearing evidence from the accused or for some other reason, the jury conclude that there is a reasonable possibility that the accused did not even contemplate the risk, he is in this type of case not guilty of murder or wounding with intent to cause serious bodily harm.” [Emphasis added]

29.In our opinion, the use of the phrase ‘reasonably possible’ in the context the judge used it was not objectionable.  A jury, exercising its common sense when deciding what evidence to accept, is expected to approach its task on a rational basis.  In this sense, something which is possible can only sensibly be reasonably possible.  This being said, we consider that it is preferable for judges to use the well-established direction that if something said by a defendant “is or may be true” then it should be decided in his favour.

30.In any event, we consider that what was said was in no way inconsistent with, nor did it undermine, the applicants’ right to the benefit of any “reasonable doubt” the jury may have found existed in the prosecution case.

31.Mr McCoy argued in his second ground of appeal that the judge “wrongly and unfairly dealt with the refusal of the applicant to responsively answer further questions in cross-examination”.

32.Here, the passage in the summing up which is criticised reads:

“There came a time in the cross-examination when the 1st accused refused to answer any of the questions asked by Mr Tam. As to that refusal, members of the jury, I tell you this. Having chosen to go into the witness-box to give evidence in his own defence, the 1st accused was liable to be cross-examined. The questions which he refused to answer were questions which Mr Tam was entitled to ask, which the 1st accused’s counsel did not object to, and which the 1st accused was obliged to answer. His refusal to answer them may be taken into account by you in deciding what weight, if any, you attach to his evidence-in-chief which he declined to have fully subjected to questions and answers in cross-examination meant to test and challenge his evidence- in-chief.” (Appeal bundle p. 37)

33.Mr McCoy’s point, in essence, was that at the stage when D1 refused to answer further questions in cross-examination, he had been given the impression that his refusal was a permissible course of action on his part.  Mr McCoy submitted that what was lacking was a warning from the judge as to the consequences which might flow from D1’s refusal to answer and he contended that the direction given to the jury could only have added to the prejudice already caused to D1’s case by his failure to answer perfectly legitimate questions.

34.There is no merit whatever in this ground.  The judge did all that could fairly be required in such a situation.  In particular, having regard to the unusual circumstances which had arisen, counsel for the defence with long experience at the Bar was given, at his own request, special permission to speak to D1 and, having done so, he informed the judge, in the absence of the jury, that:

“Mr Polson:      … everything has been explained to him.  I believe he understands all the implications and that -- I’ve given him my advice about the desirability of answering questions but, notwithstanding that, he has elected to refuse to answer questions.  And, as I’ve said, I’ve explained the consequences of that both in this trial and should the matter go anywhere else.  He understands that very very clearly and he’s made his decision and he’s sticking to it.”

Nothing could have been clearer or more forthright.

35.Mr Polson’s statement was followed by the judge informing him that she would tell the jury that, by taking this stance, D1’s evidence would need to be considered in this light and there was then a discussion about whether D1 was in contempt of court.  The judge commented that if D1 refused to answer any questions it would be up to the jury as to what the jury made of his evidence.

36.In our opinion, the way this matter was handled was a model of correctness.

37.Returning now to D2’s application, Mr Bruce advanced one other ground, namely, that the judge failed to draw to the jury’s attention that if they accepted the doctors’ testimony about D2’s injuries, it was “possible” that it assisted D2’s defence.  If so, D2’s admissions might be regarded as having been made under the circumstances he had described and thus be answers which, because of the oppression to which he had been subjected, were or might be untrue.

38.The difficulty with this ground is that there was no possibility of the medical evidence assisting D2.  His account had been that he had been constantly assaulted by the police in brutal fashion.  At one point in his evidence, D2 claimed to have been assaulted by no less than five officers who had taken turns for over an hour to assault him all over his body, first inside the police van that took him to Mongkok Police Station and later in further beatings at the police station itself. 

39.The prosecution called Dr Chau Chi-wai (PW28) and Dr Tsang Wai-tsan (PW22) to refute these allegations of assault.  The evidence they gave, both individually and collectively, under no circumstances could have provided D2 with any comfort.

40.We adopt much of Mr Zervos’ summary of the doctors’ testimony.  Dr Chau Chi-wai gave evidence about examining D2 at Queen Elizabeth Hospital at 1.20 am on 17 October 2006.  He said that D2 had complained to him that he had been assaulted by 5 or 6 people with fists over his chest wall causing pain and to his face causing head injuries.  His medical notes show that there was tenderness over D2’s right face and tenderness and bruises over D2’s chest wall. “Tenderness”, the doctor said, meant that when he visually examined D2’s body, he could not see any visible mark or injury but, when he touched the spot, the patient would complain of pain.  The only visible injuries he could find on D2 were red marks and bruises on D2’s chest.  However, the doctor did not make a note of the colour or the size of the bruises and thus was unable to say how old they were or what may have caused them.  The doctor said that he did not find any other visible injury on D2’s body.

41.Dr Tsang Wai-tsan medically examined D2 at about 1.33 am on 18 October 2006 at the Caritas Medical Centre.  Dr Tsang only found a patch of redness on D2’s chest and upper abdomen.  He could find no bruise whatsoever on D2’s body.  If there had been bruises on D2 before he examined D2’s body, they must have faded by the time of his examination.  As far as the patch of redness was concerned, it was consistent with being caused by a hard object but it could have been self-inflicted.  In the doctor’s view, that patch of redness was fresh and had most probably been caused within 24 hours of his examination.  The doctor said D2 told him that he had been hit by the police that day and the day before.  D2 complained to the doctor of a cough.  D2 also told him that his abdomen and chest had been hit by the police and were still painful.  Dr Tsang testified that he found nothing wrong with D2’s abdomen apart from the patch of redness.

42.The medical findings of Dr Tsang and Dr Chau were inconsistent with D2’s evidence of being subjected to constant physical assaults with great force by the police.  In fact, as Mr Zervos submitted, the testimony of the two doctors completely undermined D2’s credibility and his story about police violence.  Mr Zervos accepted that the trial judge had not made this point, which was a point in favour of the prosecution rather than D2, in her summing up.  She just reminded the jury of the testimony of Dr Tsang and Dr Chau.  She did not point out to them as she could have done, that the evidence of the two doctors, if accepted by them, contradicted D2’s version of events.

43.In D3’s case, Mr de Boinville complained that D3’s admissions should not have been admitted into evidence.

44.This was a matter which was fully examined during the voire dire, the very purpose of which had been to determine the admissibility of D3’s confession.  D3, like the others, had complained of being subjected to a savage attack by the police on 19 October 2006.  He was examined by Dr Kwong Ngar-ming (PW26) on 21 October 2006 at the Lai Chi Kok Reception Centre and was found to have only two purplish marks on him, one on the front of his chest and the other on the abdomen.  However, these were not found by Dr Kwong as the result of any complaint made to him by D3 but rather as a result of a health-screening process D3 was required to undergo.  D3 was asked various questions about his health including whether he had been assaulted by the police while in their custody to which he replied that he had not been.  The bruises, he said, were caused in a fight with others.  It is right to add that on the following day, D3 changed his story and said he had been assaulted by the police.  D3’s account at trial was that he had told the doctor all along that he had been assaulted by the police.

45.The judge was fully entitled on the evidence placed before her to conclude that D3’s admissions had been made voluntarily.

46.This ground had no merit.

47.In his second ground, Mr de Boinville contended that the jury were misdirected in the following terms:

“If you feel sure that any accused lied on any matter, then you will not act on his evidence on that matter. But you will not convict him of anything just because he lied. You must consider whether the prosecution has made you feel sure of his guilt: acquitting him if the prosecution has not made you feel sure of his guilt of any offence; convicting him of manslaughter if the prosecution has made you feel sure of his guilt of manslaughter; and convicting him of murder if the prosecution has made you feel sure of his guilt on murder. Members of the jury, I shall be directing you on murder and manslaughter in due course.” (Appeal bundle p. 6)

48.The terms of this direction were said by Mr de Boinville to be “too wide” because the judge had failed to say what should be done if a prosecution witness had lied.  This direction, he suggested, gave rise to an implication that only defence witnesses could lie.  With respect, this was a criticism which was misconceived as, earlier in the summing up, the judge had given a standard direction in regard to the approach to be taken to witnesses, particularly those called by the prosecution, who were found to be unreliable, saying:

“You are entitled to accept part of what a witness says while rejecting another part of what that witness says. But if you find a prosecution witness unreliable on anything that matters, then of course you must be extra careful before accepting anything else which matters said by that witness against an accused.” (Appeal bundle p. 8-9)

49.In his next ground, Mr de Boinville complained that:

“… the judge’s approach in the summing up as to how to deal with admissions and complaints about (sic) is confusing and may have led to the jury rejecting complaints without have (sic) due regard to the proper standard of proof, nor was it fair to make such comments without reference to the medical evidence.”

50.The passage Mr de Boinville referred to reads as follows:

“Now let me turn to tell you this. When you consider the reliability of admissions, you should take into account complaints made afterwards and, even more so, complaints made before about earlier admissions. But when considering whether you nevertheless feel sure that admissions are reliable despite complaints afterwards or even before, you may take into account the nature and extent of the admissions.

Suppose the admissions were plain and simple ones amounting to a full confession covering both act and intent. If that were the position, then a jury may well be impressed by the contrast between such a full confession and a complaint. And this would be especially so if the contrast is between a full confession and an earlier complaint. But where the admissions fall short of a full confession and did not admit intent, the jury's impression - it is of course a matter for the jury itself - may be a totally different impression. Did the accused, having been arrested and while trying to admit acts without admitting intent, get himself into a position of making some admissions? Did he then regret making any admissions so that he complained? Did he then end up repeating his admissions when continuing to try to give an account of his own? Members of the jury, on questions of this sort, you have had the advantage of watching the videotapes and seeing exactly how the interviews unfolded. You should make full use of that advantage.” (Appeal bundle pp. 62-63)

51.We need say no more than it seems to us, in a case where serious complaints had been made against the police, that the approach taken by the judge was entirely appropriate in the circumstances, setting out for the jury’s consideration the various factual situations that might possibly exist.  This was achieved in a manner which was both fair and balanced.

52.Mr de Boinville’s final ground was that the judge’s references in her summing up to ‘common sense’ and the examples she gave about ‘inferences’ were “confusing and may have led a jury to depart from the high standard of proof required”.

53.We have dealt already, in the context of a similar point raised by Mr McCoy and Mr Bruce in their grounds of appeal, with the impugned reference by the judge, in an example she had chosen to illustrate the application of ‘common sense’ to an important issue in the trial, when asking, rhetorically, whether the answer to a particular question was “reasonably possible”.  Mr de Boinville adopted the arguments which were advanced and we need say no more about this.

54.As to the direction given about inferences, the examples taken by the judge were very similar to those taken in a case recently before this court, HKSAR v Fung Yuen-cheong, CACC 166/2007 where, (at para. 36) it was stated that:

“These were directions, illustrated with easily understood examples, which dealt with the whole topic of inferences in a helpful and comprehensive fashion”.

55.This ground had no foundation.

Conclusion

56.We shall grant leave to D1 and D2 on their first ground of appeal but, treating the hearing as the hearing of their appeals, each of their appeals is dismissed.

57.Leave out of time is refused in D3’s case and his application is, therefore, also dismissed.

Mr Kevin P Zervos, SC, DDPP, Mr Simon Tam, SPP and Ms Peggy Lo, Ag SPP, of the Department of Justice, for the Respondent.

Mr Gerard McCoy, SC, instructed by Messrs Chan & Tsu, assigned by Director of Legal Aid, for the 1^st Applicant (D1).

Mr Andrew Bruce, SC, instructed by Messrs Raymond Chan, Kenneth Yuen & Co., assigned by Director of Legal Aid, for the 2^nd Applicant (D2).

Mr Nigel de Boinville, instructed by Messrs Cheung & Yip, assigned by Director of Legal Aid, for the 3^rd Applicant (D3).