Cheung Kam Yin and Others v. The Queen
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CACC000652/1967 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO.652 OF 1967 -----------------
Coram: Hogan, C.J., Mills-Owens, J. & Huggins, J. Date of Judgment: 29 January 1968 ----------------- JUDGMENT ----------------- 1. By a majority verdict of 5-2, the appellants, who had been charged with murder, were convicted of the manslaughter of Lee On, who died on Monday, the 26th June, 1967, at 5.45 p.m., for which they were sentenced to 8 years, 6 years and 6 years imprisonment respectively. 2. The prosecution evidence showed that Lee On and another Wong Yuk Sum, were arrested at about 5 p.m. on Saturday the 24th June, 1967 at Shaw Studios, where Lee was said to have been in possession of an inflamatory poster. The arrest was made by officers attached to the Wong Tai Sin Police Station. On Sunday, the 25th, at 2 a.m. Lee was taken for a brief medical examination to Queen Elizabeth Hospital. Otherwise he, and Wong, remained in custody at the Wong Tai Sin Police Station until they were taken to the cells of the North Kowloon Magistracy on the afternoon of Monday the 26th to appear before the Magistrate. They left Wong Tai Sin at about 1.55 p.m. and arrived at the Magistracy between 2.10 and 2.20 p.m. There they were handed over to the custody of the three appellants, a police corporal and two police constables, who were on duty at the detention cells at the Magistracy and whose duty it was to take charge of them and produce them before the Magistrate, Mr. Stratton. When Lee and Wong did appear between 2.30 and 3 p.m. before Mr. Stratton the latter thought that they appeared to be ill and ordered that they should be remanded at once in hospital custody. Lee was removed in an ambulance at about 4 p.m. and died in the hospital at 5.45 p.m. that day. A post-mortem was conducted the following afternoon by the Government Pathologist, Dr. Pang, who diagnosed the cause of death as a ruptured kidney. He also testified that he found two sets of injuries on the deceased's body, namely a set of 13 bruises which from their appearance and colour he concluded had been inflicted between 24 and 48 hours prior to death, and a set ...(illegible) in certain ribs and in the breast bone and a laceration on the anterior wall of the stomach. He estimated that the fatal injury had been inflicted within a period which at first he described as within 4 hours of death, but in cross-examination extended to 4 1/2 hours, and eventually but reluctantly to 5 hours. Dr. Tsui, the doctor who had examined the deceased in the early hours of the Sunday morning, gave evidence that at that time only two bruises, fresh bruises were apparent on the body of the deceased. Police officer witnesses from the Wong Tai Sin Police Station gave evidence that when they took the deceased from Wong Tai Sin on the Monday and handed him into the custody of the appellants at the North Kowloon Magistracy they saw nothing wrong with him. There was in addition evidence from Yam Cheong who had been one of some thirty or forty prisoners confined in two large adjoining cells in the Magistracy building that he had seen the three appellants jointly assaulting the deceased and the other prisoner Wong in the corridor outside the cells. The evidence also showed that the three appellants were the officers exclusively responsible for the safe custody of prisoners in the cells at North Kowloon Magistracy on the afternoon of the 26th. On the other hand it is evident that any occurrence in the corridor outside the cells must have been in the view of the thirty or forty prisoners then occupying those cells, or of the majority of them, and in the view also of a police constable, P.C.337, who occupied the police duty room commanding a full view of the whole length of the corridor. P.C.337 said that he saw no assault committed, and Yam Cheong was the only one of the thirty or forty cells prisoners to give evidence. Wong was negative in his evidence. He said that he remembered being in the cell corridor and that he felt frightened and in pain; he remembered that he fainted before going up the stairs from the corridor to the court and coming down again. Otherwise, he said, he remembered nothing of the time he was in the cell corridor with the deceased. 3. The evidence on which the prosecution relied for a conviction can be divided into three parts: the medical testimony of Dr. Pang as indicating the time when the fatal injury was inflicted on the deceased; the testimony of Yam Cheong showing that all three appellants participated in a joint assault which could have inflicted the fatal injury; and the evidence of the Wong Tai Sin police officers as showing the condition in which the deceased was deliver to the custody of the three appellants at North Kowloon. 4. The evidence on which the prosecution relied for a conviction can be divided into three parts: the medical testimony of Dr. Pang as indicating the time when the fatal injury was inflicted on the deceased; the testimony of Yam Cheong showing that all three appellants participated in a joint assault which could have inflicted the fatal injury; and the evidence of the Wong Tai Sin police officers as showing the condition in which the deceased was deliver to the custody of the three appellants at North Kowloon. 5. The appellants did not themselves give evidence and the only witness called for the defence was Professor Ong, Professor of Surgery at Hong Kong University, who gave evidence which in certain respects directly conflicted with that of Dr. Pang. 6. In the court below the defence contended:-
7. On appeal, counsel for the appellants have continued to urge these contentions, but, in addition, have claimed that the manner in which the case was put to the jury by the judge was, for a number of reasons, unfair to the defence. 8. They argued that in respect of each category of evidence - the medical evidence the evidence of Yam and the evidence from the Wong Tai Sin witnesses - the case for the defence was not put or was inadequately put to the jury by the judge. The judge, they said, put the case for the defence negatively and vaguely when he spoke merely of reliance on the possibility that the fatal injury had been inflicted by someone else; he never put clearly and positively to the jury the defence suggestion that the presence of the earlier bruises pointed strongly to the possibility that the later injuries and the fatal injury had been inflicted at Wong Tai Sin, where there were both opportunity and motive. 9. Moreover, counsel claimed, the summing-up as a whole was one sided and heavily weighted against the defence particularly in that, where there was evidence helpful to the defence contentions, although such evidence was, in most instances though not in all, mentioned in the summing-up, even if only briefly, the significance and import of the evidence was never brought home to the jury whereas the significance of the evidence supporting the case for the prosecution was stressed and in some instances over-stated and over-stressed. In addition, it was claimed, the summing-up revealed a number of misdirections and non-directions, some of them not of major importance in themselves but sufficient in their cumulative effect to produce a miscarriage of justice. The great majority of the passages to which criticism was directed related to the medical evidence, Yam Cheong's evidence and the Wong Tai Sin evidence. In so far as it is necessary, they will be considered in relation to these three matters. The only points to which we would now direct attention are as follows.
Counsel for the defence having commented on the failure of the prosecution to call any of the other prisoners we think it was fair that the judge should ask the jury to consider whether there might not be reasons for their not being called other than that which the defence had suggested. The passage which we have cited, however, went considerably further than that and suggested that it was "reasonably probable" that the other prisoners were too frightened to testify, although there was no evidence to support such a suggestion. This may well have had an effect on the jury prejudicial to the appellants. It may even have been desirable that, after pointing out that the defence explanation for the absence of these persons from the witness-box was not the only possible one, the judge should have warned the jury against speculating about the evidence they might have given if they had been called, speculation which could be highly dangerous in a case of this kind. In Reg. v. Wheeler(2) the Court of Appeal (Criminal Division) expressly said that a direction that the failure to call a witness was a matter which the jury were fully entitled to take into account was "unfortunate and unhelpful, and that any repetition of such a reference in a case where a witness is not called by either side is undesirable". The judge's observations in the present case clearly ...(illegible) very much further and. in our opinion, too far. 10. We turn then to deal with criticisms related to the three main categories of evidence; the medical evidence, Yam Cheong's evidence and the Wong Tai Sin evidence. 11. The medical evidence, if it was to lead to a conviction, had to show, if necessary in conjunction with other evidence, that the fatal injury to the deceased had been caused during the time when he was in the custody of the three appellants at North Kowloon Magistracy. Even taking Dr. Pang's evidence in its original form, when he said that the injury had occurred within 4 hour of the death at 5.45 p.m., this meant that the injury could have occurred some half an hour before the deceased reached North Kowloon. When Dr. Pang stretched the time from 4 to 4½ hours and, ultimately, even if reluctantly, to 5 hours he placed that limit was 4½ hours before the deceased was handed over to the three appellants. Clearly, that deprived the medical evidence of any conclusive effect in confining the injury to the period when the deceased was in the custody of the appellants but little was made of this important factor in the judge's address to the jury. As will be seen, he mentioned it but in a manner which failed adequately to bring out its significance and, in particular, failed clearly to indicate its importance to the contentions put forward by the defence. Too frequently he referred to the interval as 4 to 4½ hours and failed to mention Dr. Pang's concession of 5 hours. 12. Indeed it seems doubtful whether the judge fully appreciated the importance of these timings. Their significance does not emerge clearly from the summing-up. There was an error which minimized the impact of the time factor in Dr. Pang's evidence when he told the jury that the defence relied on the contention that the evidence did not show, with any reasonable degree of certainty, that the kidney was ruptured by a blow struck within 4 hours of death. In fact, the defence was that the prosecution had failed to prove the injury was sustained within 3½ hours of death, the limit which would bring it to the time when the deceased reached North Kowloon. The half hour was significant because it meant that Dr. Pang's evidence, even in its original form, failed to establish this important element in the prosecution case. 13. Not only did Dr. Pang's evidence fail to put the infliction of the fatal injury within the period when the deceased was under the control of the appellants, but there was considerable doubt as to whether reliance could be placed on Dr. Pang's estimate of time, either in its original narrow form or in the more extended form in which it emerged from cross-examination. For his conclusion as to time he advanced four reasons; (1) the absence of any blood in the urine in the bladder; (2) the presence a lacerated wound on the anterior wall of the stomach; (3) the discoloration in a bruise immediately adjoining the ruptured kidney and (4) the stage reached in the healing process in the kidney itself. 14. Fuller examination showed that the absence of blood in the urine - or more correctly the absence of any appearance of blood in the urine - proved nothing as to time because it could have been due to paralysis of the kidney resulting from the severity of the injury or to a blockage between the kidney and the bladder. So that reason failed. Dr. Pang was equally unable to show in what way the laceration on the stomach could assist him in determining the time of the injury to the kidney. There is some hint in his evidence that he assumed both injuries had occurred at the same time and as the laceration looked fresh he therefore concluded that the rupture of the kidney was equally recent: but this conclusion depended on the assumption that both injuries had occurred at the same time, an assumption for which there was no solid or even apparent justification. No other reason was advanced for the suggestion that the laceration on the stomach helped him to fox the time of the injury to the kidney: so his second reason went by the board. That left the discoloration of the bruise and the healing process in the kidney itself. But the value to be attached to these two reasons was greatly weakened when Dr. Pang admitted that the rate of discoloration in a bruise varies in different parts of the body and varies from individual to individual. He admitted that a similar variation occurs, between individual and individual, in the healing process. As a result Dr. Pang was not, apparently, in a position to relate either the discoloration or the rate of healing observed in the deceased's body to any established norm. Over and above these admissions, very fairly made by Dr. Pang, his testimony as to the capacity of a medical expert to fix a time limit of 4 to 5 hours by observation of these two factors, discoloration and healing, was contested by Professor Ong who said that it was not possible to make an estimate of less than 8 to 12 hours. 15. Having detailed at some length Dr. Pang's evidence and the reasons advanced for it without, however, giving any adequate indication to the jury of the defects in these reasons, the judge mentioned briefly at the end of each reason the conflicting evidence of Professor Ong but without comment. That comment he reserved for a later and compendious statement which he made in the following terms:-
There followed a passage dealing with time which unfortunately was not recorded on tape as well as being reported in shorthand. It reads:-
16. There has been argument before us that the last mentioned passage contains a misdirection in that the final reference to 1.15 p.m. should have been 1.50 p.m. or 1.55 p.m., being the time at which Inspector Mok said he gave instructions for the prisoners removal to North Kowloon. Counsel for the Crown has argued that had he heard this time of 1.15 p.m. at that point he feels sure that he would have pointed out the error to the judge and he suggests that the shorthand reporter, having heard 1.15 so frequently repeated and the sound being so similar to 1.50, has inserted that figure in error. He argued that it would be quite meaningless for the judge to have said "until 1.15" at this point in his address. On the other hand, the error ascribed to the court reporter might be due to the judge, who, having equally become accustomed to saying and hearing 1.15, inadvertently repeated it. We think there is much in what counsel for the Crown says about this, and, although one cannot avoid some lingering anxiety on the point, we do not think it sufficiently material to this appeal to require further attention. 17. Returning to the medical evidence as a whole, counsel for the Crown contends that it was quite sufficient for the judge to put it to the jury in the way he did, leaving it to the jury to make out for themselves the weaknesses in the individual reasons and the significance of the conflicting evidence, without any direct help or assistance from the judge, and counsel supported the comment at the end as a fair assessment of the relative positions of Dr. Pang and Professor Ong. 18. We find considerable difficulty in accepting the latter contention. It was quite correct to say that Dr. Pang, a very experienced pathologist, had had the advantage of seeing the dead body, an advantage not open to Professor Ong, but it was important to ascertain and determine how far that advantage assisted him on those matters in which he and Professor Ong were in conflict. Professor Ong was not seeking to contradict or contest what Dr. Pang had seen on the dead body. The matter which he questioned or the conclusions which he queried were those based on medical science and the practice and application of medicine. He said that medical skill could not, from the discoloration of a bruise in a dead body fix the time of its infliction within 4 - 5 hours and that it would be impossible to fix it with certainty within less than 8 - 12 hours. In this he was purporting to talk of the limits of medical skill and knowledge. In the same way, he queried the statement that the stage reached in the healing process in an injury to a particular organ could, in he present stage of medical skill and knowledge and in the circumstan outlined by Dr. Pang, enable a doctor to fix its infliction within a limit of 4 - 5 hours. In respect of matters such as these, Dr. Pang had no proved advantage over Professor Ong through having seen the particular body. This was a conflict between two eminent medical men as to the limits of present day medical expertise and, if the jury were to be asked to decide which was the more accurate in this field, it was important to remember that whereas Dr. Pang, in cross-examination, and, indeed, to some extent in examination-in-chief, had accepted the existence of factors which appeared to throw doubt on his conclusion, such as differing rates of discoloration and healing in different people and different rates in different parts of the body, there had been no cross-examination of Professor Ong and his testimony appeared to be unscathed by any admissions or qualifications volunteered or extracted from him. 19. Counsel for the defence asked the judge to direct the jury that because of this lack of cross-examination Professor Ong's evidence should be deemed unchallenged by the Crown. Dealing with this, the judge said:-
20. As this was the final direction by the judge, its impact on the jury, was likely to be particularly significant. We think the judge was right in saying that the absence of cross-examination does not necessarily mean that the evidence or the witness is accepted as being correct - in this connection we would endorse the views expressed in the case of Chan Chi Kong v. the Queen(3) but this is not the end of the matter. It may well be that in the absence of cross-examination there will be no material available on which the jury can be asked to reject the evidence and this would present the same difficulty whether the evidence referred to facts or opinion. We see little justification for the distinction drawn by the judge for this purpose between opinion and fact or for the statement "it was simply a matter of his opinion. The facts are admitted". What facts? The visible signs of injury on Lee On's body may not have been disputed but the inferences or deductions to be made from them were in dispute and other facts or alleged facts were interwoven into these inferences e.g. the validity of the comparisons which Dr. Pang sought to make with the rate of discoloration and healing observed in injuries on other bodies involved in traffic accidents. Professor Ong challenged Dr. Pang's use of these two factors as being sufficient to determine the time of the injury. Injected into this challenge was a mixture of fact and deduction based on medical knowledge and experience. It was, we think, wrong to suggest, as this passage does suggest, that, in the field where Dr. Pang and Professor Ong came into conflict, no questions of fact were involved but, even if the conflict was confined to opinion, it should we think have been pointed out that Professor Ong's view unlike that of Dr. Pang had not been challenged or weakened by admissions or qualifications extracted through cross-examination or otherwise. Far from doing so, the judge by his earlier remark "all things are possible" implied to the jury that Professor Ong's evidence could be out into the category of fanciful possibilities which a jury can safely disregard. This was in sharp contrast with the treatment of Dr. Pang's evidence. 21. For example, the judge referred in his summing-up to Dr. Pang's statement about the absence of blood in the urine and said this showed the injury to the kidney was
22. He went on to say that Dr. Pang admitted "perfectly frankly that it might have been better to have taken a microscopic test, but that the omission to do so did not detract from his opinion". Dr. Pang does not appear to have said specifically that it did not detract from his opinion nor did he attempt to indicate way it should not detract from his opinion, once he had admitted that there could have been blood which would only have been apparent under a microscope. Later, the judge having referred to Professor Ong's statement that if the kidney stopped secreting for one reason or another then there would be no blood in the urine. went on to say:-
But the judge made no mention of the fact that, if this was so, it destroyed the theory that the absence of blood in the urine helped to fix the time of the injury to the kidney. The way he put it to the jury implied that Dr. Pang's conclusion remained entirely unaffected by this development. 23. Then there is the concluding sentence telling the jury to make up their mind whether they were satisfied that "Dr. Pang's opinion in this matter is the correct one". What were the jury to make of the reference in this context to "in this matter"? Were they to understand the word "this" as referring to the limited medical field in which the experts came into direct conflict or were they to understand the expression as referring to Dr. Pang's overall conclusion that the fatal wound had been inflicted on the deceased's body within a particular time? It seems to us that they would have been more likely to understand it in the latter way and this would throw them back to the earlier passage where the judge had invited them to take the view that Dr. Pang, through having seen the deceased's body etc., had a considerable advantage over Professor Ong. 24. This presented the conflict between the two medical men in a misleading light. In the field of medical science, where the area of conflict lay, Dr. Pang did not appear to have any particular advantage over Professor Ong and the evidence before the jury showed that in this field, even without Professor Ong's testimony, Dr. Pang's conclusion was based on reasons which did not support it. Consequently, it seems to us that, in the summing-up, not only was the medical evidence presented to the jury in a manner which did not direct their attention correctly to the real issues arising for their determination out of this evidence but the manner adopted represented that evidence as being stronger and more favourable to the prosecution than was justified in the circumstances. The summing-up failed to bring out with sufficient clarity the limits of Dr. Pang's evidence, even if fully accepted, and also failed to make clear how unsupported were some of his conclusions by the reasons advanced for them and how vulnerable were these reasons. 25. It must, we think, be accepted that medical men and others, on occasions reach their conclusions without being able, convincingly, to demonstrate the reasons which have led to these conclusions but where a doctor, even an experienced and eminent doctor such as Dr. Pang, advances reasons for his conclusions which he ...(illegible) to demonstrate as capable of supporting those conclusions not because of technical complexities which might not be readily understood by the layman but because the reasons do not meet, in a field where they could be expected to meet, simple tests of logic and commonsense, and when these reasons are contradicted, in a field where no clear advantage lies with one expert over the other, by a medical man of no less eminence, it would, we think, be highly dangerous to permit a citizen to be hanged or deprived of his liberty on the strength of such a conclusion. In effect it would permit the issue of guilt or innocence to turn on a very debatable point of medical opinion. 26. Two other criticisms of the judge's directions on the medical evidence can be noted more briefly. 27. Counsel argued that the judge was wrong in inviting the jury to hold, and in constantly implying, that all the injuries apart from the earlier blue bruises were inflicted in the same assault and he was particularly wrong in inviting the jury to find the "strong probabilities" were that the cracked ribs and the ruptured kidney had been caused at the same time; he said Dr. Pang's conclusion was that the damage to the ribs was caused within 4 1/2 hours of death but made no mention of the fact that Dr. Pang had ultimately agreed that this damage could have been sustained several hours before. 28. Yam's description of the assault indicated that it fell without significant distinction on the deceased and Wong but the medical evidence showed that Wong's injuries were merely superficial in contrast with the deceased's extensive injuries; counsel argued that it was unlikely that the assault described by Yam could have produced such different results on the two victims and that this pointed again to the possibility that the deceased's injuries were received elsewhere. No mention of this was made by the judge. 29. Whilst we think these criticisms have merit and contribute to the general impression of a defence inadequately presented to the jury, they are not in themselves of major significance. A matter of greater importance is that the trial judge, in his summing-up, when dealing with various possibilities, mainly those which had been suggested by Professor Ong, such as the possibility that the injured kidney had been carried by the deceased for some time prior to his arrival at North Kowloon and the ways in which a rupture can occur, had invited the jury to consider whether these were "reasonable probabilities". Counsel for the Crown thought these directions so dangerous that he interrupted the summing-up and asked for a correction because the defence would not need to establish that such things were reasonably probable but would be entitled to an acquittal if they remained merely as reasonable possibilities. The judge immediately agreed and endeavoured to remedy the situation by telling the jury that they had to be satisfied that Dr. Pang's view when he said "these injuries were caused within 4½ hours of death" was the correct one and that if they were left in some doubt "it doesn't assist the prosecution". Although one might perhaps have expected some more emphatic indication of the critical damage to the Crown's case than was conveyed by the words "doesn't assist the prosecution", this was, in itself, a proper direction and, in appropriate circumstances, could well be regarded as sufficient but we are extremely doubtful whether, expressed in these general terms, it would have been sufficient to correct in the minds of the jury the misleading impressions gathered from earlier directions - and there were a number - in regard to individual phases of the evidence and specific factors, which clearly implied that, unless such factors were "reasonably probable", Dr. Pang's conclusions ...(illegible) unaffected by them. Moreover this oblique method of correcting the individual errors in regard to Professor Ong's evidence by a compendious reference to Dr. Pang's evidence as a whole was greatly weakened as a corrective by the misleading manner in which that evidence had been presented to the jury when the judge told them that it was more likely to be the correct view because of Dr. Pang's advantage in seeing the body and his experience in conducting post mortems etc. 30. There we will leave for the moment the medical evidence and the manner in which it was put to the jury whilst we deal with the criticisms related to Yam's evidence and the Wong Tai Sin witnesses. 31. Yam Cheong was called to testify to assaults by the three appellants on Lee On and ong Yuk-sum in order to connect them directly with the death of Lee On. There are two aspects of the matter. Apart from his evidence the Crown could at best do no more than show that one or more of the appellants had the opportunity to inflict the fatal wound on Lee On and, as the judge very properly told the jury, that was not enough: it was necessary to pin the charge firmly on each before he could be convicted. Then the jury were to be asked to infer from what Yam said be saw that the appellants were acting in concert and that the fatal wound was inflicted in the course of the assault which he would describe. Yam Cheong was therefore to give direct evidence of assaults, but the murder was to be proved by circumstantial evidence partly from him and partly from others. 32. In the event Yam Cheong was by any standard an unsatisfactory witness. He was himself a prisoner on remand in respect of an offence of which he was subsequently convicted. Moreover, he had numerous previous convictions and there was a possibility that he was biased against the police, although he denied that he was. He appears to have been a sick man for several months and he was in fact sent to hospital shortly after the material dates: he had not fully recovered by the time he gave evidence at the trial and he was permitted to have a seat in the witness-box. He gave his sickness and a congenital eye affliction as one reason for his not being able to remember clearly what had happened. Certainly there were differences between his evidence before the magistrate and his evidence at the trial and on a number of points he contradicted himself at the trial. On his own story he was lying down at the back of his cell when the alleged assault took place and there were some twenty other prisoners in the cell with him. Four other prisoners were lying on stone benches between him and the front bars. He was asleep or "dozing" when Lee On and Wong Yuk-sum were brought into the cell area but was awakened and propped his head on his hand to watch. He told the magistrate that the 1st appellant struck "the prisoner who was strongly built", who was "the shorter of the two" - and this, if the two prisoners then referred to were Lee On and Wong Yuk-sum, was Wong Yuk-sum. He went on to say that the 1st appellant having walked away the 2nd and 3rd appellants then kicked the same prisoner, after which the 2nd appellant struck the shorter prisoner and the 3rd appellant struck and kicked the taller one, finally hitting him with a truncheon. No further details were given. At the trial the witness gave additional details of the assaults and also said that after the 1st appellant had given Wong Yuk-sum a single blow he (1st appellant) walked away. In cross-examination he further said that the 1st appellant gave Lee On a kick and also that all three policemen had a part in the kicking. 33. Without attempting to lay down any inflexible rule about the form a summing-up should take we think there were certain matters which it was essential for the judge to mention. First the jury should be told how Yam Cheong's evidence fitted into the general pattern of the prosecution evidence so that they should be left in no doubt that his evidence was vital and why. Perhaps most important was that they should be reminded that even if the most damaging version of his evidence were believed in toto it was still a matter of inference from that evidence whether the fatal injury was inflicted by any one of the appellants and whether, if it was so inflicted, it was inflicted in the course of an assault jointly agreed on and carried no further than their common purpose, and it should have been explained to the jury that it was for them to decide whether these inferences could safely be drawn. Beyond that we do not think it was necessary to go. Some judges would no doubt have warned the jury of the danger involved in believing the evidence of a witness who as counsel eloquently put it had an appalling memory, an appalling record, bad health and a bad view. We do not think the danger could have escaped the most unenlightened jury, especially after the pungent observations of counsel for the defence in their closing addresses. Some judges might have done more to emphasize the inconsistencies in his evidence but the judge did draw attention to a number of salient contradictions and we do not think it was necessary to point out inconsistencies which would have been obvious in any event. This must, however, not be thought to detract from the necessity of helping the jury to see clearly what the evidence was from which they were being asked to infer the vital facts. What is required of a judge is that he should put the case to the jury in such a way as to ensure, in all the circumstances of the case, their due appreciation of the value of the evidence: see R. v. Finch(4). Counsel for the appellants has submitted that not only did the judge not warn the jury of the danger of accepting this witness's evidence but he tried to minimize the discrepancies and, in the manner in which he invited the jury to consider his evidence, gave the witness what has been described as "a pat on the back. In this case, on the face of it, there were marked discrepancies in material parts between the evidence of Yam Cheong before the magistrate and at the trial but it would, we think, be going too far to suggest that the judge misled the jury into believing that all the discrepancies to which their attention had been drawn were accounted for by the "great vigour" of the cross-examination and there is no doubt that counsel are sometimes wont to assign greater significance to differences of this kind than is always warranted. Although the judge did present Yam's evidence to the jury in a favourable light, it would, we think, be going too far to say he commended it. There can be no doubt that at the end of his summing-up, when counsel for the 3rd appellant suggested that a warning was appropriate, the judge left it completely open for the jury to believe or disbelieve the witness as they thought fit. 34. We must now see in more detail how the judge did approach Yam Cheong's evidence. He made it perfectly clear that it was not enough for the prosecution to prove that Lee On was delivered into the custody of the appellants without the fatal injury: the evidence of Yam Cheong was some of the "additional evidence" to which he referred as having justified him in calling on the appellants to make their defence. Indeed the judge described Yam Cheong as "undoubtedly the main prosecution witness". He went on to refer to the witness's admitted previous convictions and said he would deal at a later stage with the severe comments made upon his evidence. These comments took the form of a review of some of the cross-examination, a reference to the witness's being a man with some fifteen previous convictions and emphasis on the absence of corroboration by certain persons namely the other prisoners, who, if the evidence was true, should have been able to corroborate it. The judge ended by telling the jury that it was for them to decide whether Yam Cheong's evidence was "absolutely untrue or whether you take the view that he has genuinely tried, to the best of his limited ability, to tell you what he actually saw happen that afternoon". With respect we think it was unfortunate that the jury should be told this was a question they had to decide because it tended to give a false impression of the alternatives before the jury and to obscure the onus of proof. The real questions the jury had to ask themselves were whether they were satisfied that any of Yam Cheong's evidence could be relied upon, and if so, which parts of his evidence they believed. The learned judge never went on, as we have said we think the circumstances of the case required, to direct the jury that once they had decided to accept any part of Yam Cheong's evidence they must go on to consider very carefully what inference could safely be drawn from the part they believed. The mere fact that the 1st appellant assaulted Wong Yuk-sum (if the jury believed that he did) would not necessarily make him responsible for any further assault which might have been committed by either one or both of the other appellants: the jury had to be satisfied that the facts which they found clearly showed a common intent to assault Lee On and, if they were to convict of murder, a common intent to do at least grievous bodily harm. There were two passages in the summing-up relating to a common intent. In the first be learned judge said: "You have got to be satisfied that that ruptured kidney was the result of a blow struck by one of the three accused in furtherance of a common intention to assault Lee On". That statement in itself is not open to criticism but we think that the jury were entitled to receive more help than that by relating that requirement to the evidence in the case and that they should have been told what evidence there was which might justify them in coming to that conclusion. Again it is unfortunate that, instead of emphasizing that the jury had to apply their minds to the inferences which could safely be drawn from the evidence they believed, the learned judge then said: "Now the evidence of Yam Cheong is that these injuries were inflicted by the three accused". Yam Cheong had never said that and it seems to us that the effect of this misdirection was to mask the correct approach to the jury's task. The learned judge went on again to say quite correctly that if two or more persons form a common intention to kill another or to cause that other serious bodily harm, and as a result of that common intention injuries are inflicted which result in that other's death, then each and every one "of those three participants to that common intention" are guilty of murder. We do not think the jury would be misled by the accidental insertion of the word "three" but there was still no indication of what the jury must believe before they could infer the common intent. This omission was not rendered any the less damaging by the fact that there then followed a perfectly correct direction on the presumption of fact that a person intends the natural and probable consequences of his actions, for that direction was never related to the alleged common intent. The judge, again correctly, told the jury that they must "consider the case separately and distinctly on the evidence as against each of (the appellants)", but he continued: "I don't think that, upon the evidence you have heard, that there is really any distinction in the evidence - if you accept the evidence of Yam Cheong - in the case as against the three of them. It is difficult to distinguish, in my view, the evidence". This last passage has been strenuously attacked before us. In the sense that all the evidence admissible against one was admissible against the others the passage is correct, but, particularly having regard to the inclusion of the words "in the case", we think a clear implication is that in the view of the judge a conviction against one would necessitate a conviction against all. That being so we think it would tend to negative the correct direction which had preceded it and to amount to a fundamental mis-direction. This effect on the jury would be increased by the final direction which immediately followed that there were three possible verdicts open to them "in this case", whereas they should have been told that there were three possible verdicts against each accused indeed the whole of the final direction before counsel asked the judge to add a word about accomplices appeared to contemplate a single involving all the accused. On the evidence we think it was open to a jury, properly directed, to find that one, two or all of the appellants were responsible for the fatal injury. If they believed that the 1st appellant struck Wong Yuk-sum, then walked away and took no further part in any assault his case was clearly distinguishable. Even as between the 2nd and 3rd appellants the jury might have come to the conclusion that the fatal injury was the result of a "stamping" which went beyond what one of them had consented to or the result of a blow so vicious that it went beyond the common intent. 35. We would add that we do not consider there is any substance in the objection raised by counsel that the admission of evidence of identification of the appellants by Yam Cheong prejudiced the appellants. It is, of course, no answer to the objection that the evidence was adduced as a result of questions by the judge and not as a result of questions by counsel for the Crown, although it is clear that at no time did the Crown place any reliance on this identification and that counsel had deliberately refrained from putting questions which might lead to an objection of this kind. Moreover, it is true that, although at the time he put the questions the judge said a warning would have to be given to the jury about the dangers of an identification of prisoners in the dock, he did not in fact give any such warning in his summing-up. Even had the identification turned solely upon the recognition of the appellants in the dock we are by no means persuaded that the appeal would necessarily have had to be allowed on this ground. It was not a case where a witness was asked "Is that the man?" : the 3rd appellant was in fact identified spontaneously by the witness as the man who conducted him to the toilet on the morning of the 26th. Nor was it a case where the accused had been seen only for a short period at the moment of the alleged offence. However, the final answer to the objection is that which was given in R. v. Cartwright(5), viz. that the evidence of identification was cumulative: what the Crown principally relied upon was that the appellants were the only police officers on cells duty at North Kowloon Magistracy that day. 36. One other matter which we desire to mention in connection with Yam Cheong's evidence is the submission that if it was accepted, as it must have been since the appellants were convicted, the verdict of guilty of manslaughter should not be allowed to stand because it must be a "compromise verdict". Counsel for the 2nd and 3rd appellants said that he was not suggesting the verdict should have been one of guilty of murder but that the jury cannot have been satisfied on the evidence that the appellants were guilty of inflicting the fatal injury and must have found them guilty of the lesser offence as proxies as it were, for the police officers actually responsible for Lee On's death. That is a very serious charge to lay at the door of any jury and we would require unassailable evidence of such misconduct before acting upon it. In the case at Bar we are not persuaded that the jury did misconduct themselves in this way. We would find it less difficult to believe that the verdict was a "merciful verdict" and that the jury were reluctant to find the intention to do really serious harm which the violence of the assault described by Yam Cheong and the gravity of the injury found on the body suggest must have been present. It was, however, the prerogative of the jury to decide what intent had been proved and even if we were convinced that it was a merciful verdict that would be no ground upon which this court could interfere. 37. Turning to the evidence from Wong Tai Sin: in theory it might have been possible with this evidence to close the gap left by the medical evidence. The difficulty might have been met in either of two ways: by direct testimony as to the physical condition of the accused when he arrived at North Kowloon or by showing, from the testimony of those who had him in their custody or their company prior to such arrival, that he had suffered no assault capable of producing the fatal injury during the limited period fixed by the medical evidence as that in which the ruptured kidney could have been sustained. The prosecution did not really seek to pursue the latter method and the case was not put to the jury in this way but evidence was led by the prosecution in an endeavour to establish that the deceased and Wong were handed over to the reception officer at the North Kowloon Magistracy in what appeared to be good condition. Three officers who were concerned in the arrest of the deceased and Wong, and in their interrogation at Wong Tai Sin, gave evidence that they were normal and walked properly when they left Wong Tai Sin. One of these officers said he accompanied them in the police van and that nothing happened during the journey. None of these officers mentioned the bruises then present on the deceased. A fourth witness who said there was nothing unusual about their condition when they left Wong Tai Sin was an officer who had to admit that he had wrongly identified certain entries in an official book as having been made by him, and that he had wrongly stated in evidence that he was on duty throughout the week-end. Another officer who was on duty at the cells at Wong Tai Sin on the Monday was so evasive in his evidence that the prosecution interrupted his evidence in order to have him "taken away, searched and checked". A second officer on duty at the cells at Wong Tai Sin on the Monday purported to say that the deceased and Wong were then in good condition but in cross-examination admitted that he did not really remember what they looked like and even if they had been ill or in pain he would not have noticed it. Of the three officers, other than the accused, who were on duty at the Magistracy the reception officer, the officer on duty with him, and the officer on duty at the main gate - none gave evidence as to the condition of the deceased and Wong. 38. Whatever value this evidence might have had in the ordinary way was undermined by the absence of any reference to the earlier bluish bruises. Without an adequate explanation of how these injuries were sustained, we do not think the jury could reasonably have found that the Wong Tai Sin evidence proved that when the deceased reached North Kowloon he had sustained no damage to his kidney. 39. To sum up:it is apparent that if the prosecution were to succeed in this case in bringing the charge of murder or manslaughter home to one or more of the accused, it was necessary for them to show by the evidence of Yam that such accused had participated in assaulting the deceased in a manner capable of producing the fatal injury and to show, by means of the medical evidence and the testimony of the Wong Tai Sin witnesses, either that the deceased was demonstrably free from this injury when he reached North Kowloon or that it had not been inflicted upon him during the period, prior to delivery, medically established as the limit within which it could have been sustained. 40. We have already indicated that we think the failure to direct the jury as to the separate defences open to the accused on Yam's evidence was fundamental. In itself, this must prove fatal to the convictions but we think it right to add that, apart entirely from this error, the evidence at the close of the case was so weak and incomplete that in our view a jury, properly directed and acting reasonably, could not have convicted the accused upon it. The medical evidence was incapable of showing that the injury to the kidney could only have been inflicted within a period later than the deceased's arrival at North Kowloon whilst this evidence and that from the Wong Tai Sin witnesses did not show that the deceased was free from the fatal injury to his kidney when he arrived at North Kowloon or that it could not have been inflicted at Wong Tai Sin. 41. The appeals are allowed and the conviction of each accused is set aside. 42. This was a case which must have imposed a heavy strain on all who were concerned with it in the court below and we would like to express our appreciation of the assistance which we have had in dealing with it in the court of appeal. Although in our judgment we have found it necessary to criticise certain aspects of the summing-up and to differ from the approach adopted in certain passages. it was in the main a lucid and skilful exposition of testimony spread over many days, testimony which was in parts confusing and difficult. 43. We would add one word on the wider implications of the case itself. The fact that it has been brought and that so much time and effort has been devoted by those responsible for running the Police Force to the preparation of the case and to attempts fully to uncover the circumstances that gave rise to it must stand to their credit and help to demonstrate their desire to cleanse the Force from any taint of brutality, even at a time when it was being subjected to great stress and strain. Nevertheless the evidence adduced in the case must give cause for grave anxiety not only to those responsible for the police but to all in authority here in Hong Kong because it shows that the deceased sustained serious and fatal injuries during a time when he was in police custody. The anxiety and distress that must flow from that knowledge is made all the deeper if the authors of these injuries remain undiscovered. If the certainty of guilt is removed from the shoulders of three individuals it can only be replaced by a pall of suspicion spreading over a wider section of the police force but that is no reason why the ordinary standards of proof required in these courts for the conviction of an accused should be relaxed. 44. These three men who stand before us are entitled to all the rights and safeguards, and to a trial as meticulous and impeccable as that, of any other citizen faced with a similar accusation. In so far as this case is concerned their convictions have been quashed and they are discharged.
29th January 1968. Representation: Yu (Ho and Wong) for 1st Appellant. Mayne Q.C. and Asome (Brutton and Co.) for 2nd and 3rd Appellants. Sheath S.G., Q.C. and Panlington C.C. for Crown. Judgment read on 29.1.68. (1) Criminal Appeal No. 372 of 1967. (2) (1967) 1 W.L..R. 1531 (3) (1964) H.K.L.R. 728 (4) (1916) 12 Cr. App. R. 77. (5) (1914) 10 Cr. App. R. 219. |