HKSAR v. Chan Kit Yan and Others

CACC 315/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 315 OF 2008

(ON APPEAL FROM DCCC NO. 1103 OF 2007 AND NO.193 OF 2008)

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Before: Hon Tang VP, Yuen JA and Hartmann JA in Court

Date of Hearing and Judgment: 20 August 2009

Date of Handing Down Reasons for Judgment: 8 October 2009

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REASONS  FOR  JUDGMENT

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Hon Hartmann JA (giving the Reasons for Judgment of the Court):

Introduction

1.On 3 September 2008, following a trial in the District Court before Deputy Judge Glass, the four applicants were convicted of wounding with intent to do grievous bodily harm, contrary to s.17(a) of the Offences against the Person Ordinance, Cap 212.  The prison sentences imposed were as follows: the first applicant, seven months; the second and third applicants, four years; the fourth applicant four years and nine months.

2.A co-defendant named Au Kai Lun, who was charged with the same offence, was acquitted of wounding with intent, but convicted of the lesser offence of wounding, contrary to s.19 of the Ordinance.  He was sentenced to nine months imprisonment.  Au made no application to appeal.

3.The four applicants sought leave to appeal their convictions only.  Having heard submissions, we dismissed the applications of the first, third and fourth applicants.  In respect of the second applicant, we allowed his application and, treating it as the appeal, set aside the conviction for wounding with intent, substituting it with a conviction for the lesser offence of wounding contrary to s.19 of the Ordinance and reducing his sentence to one of nine months.

4.In respect of all four applications, we said we would give our reasons later and do so now.

Background

5.There was no dispute as to the essential facts of the wounding incident.  It took place in a public park – the Tung Lo Wan Garden - on the early evening of 8 January 2005 and was witnessed by three independent persons who were in the park at that time.

6.These witnesses first saw a young man talking to a young woman.  They then saw a further young woman joined the couple.  Shortly thereafter, three men wearing masks and caps and carrying metal pipes entered the park and attacked the young man only.

7.Medical evidence showed that, as a result of the attack, the young man, Lai Ka Hong, suffered a depressed skull fracture and lacerations to the head.

8.When the three assailants fled from the park, the witnesses saw at least one other man leave the park at the same time.  As for the two young women in the company of Lai, the witnesses noticed that they made no attempt to offer assistance to him nor did they, while in the park, call for help.  They too left the park.

9.A later search of the park and its environs resulted in the discovery of a metal pipe that the witnesses had seen one of the assailants throw away.  In addition, a black rucksack was discovered containing a knife.

10.In the event, seven people were charged with the offence of wounding Lai.

11.Essential to the successful prosecution was the fact that two of the accused pleaded guilty to the offence and agreed to give evidence for the prosecution.

12.As for the apparent motive for the attack, it was the prosecution evidence that at the material time the first applicant was the girlfriend of the fourth applicant.  It appears that the fourth applicant took offence at the fact that the victim of the assault, Lai, had allowed himself to be photographed with the first applicant and determined to exact retribution.  It was therefore the fourth applicant who took the lead in planning and executing the wounding.

13.As for the roles played by the parties in the joint enterprise, the evidence of the accomplice witnesses was to the following effect:

(i)  The first applicant, the young woman who had been photographed with Lai, was given the task of luring him to a place where he could be attacked.  She was the one in the park, first seen talking to Lai.

(ii) The first accomplice witnesses, Choy Sin Man, was instructed to give support to the first applicant.  She was the young woman seen joining the first applicant and Lai in the park.

(iii) Of the three masked men who attacked Lai, one of them was the second accomplice witness, Kwong Kin Chun.  Kwong testified that the other two attackers were the third and fourth applicants.

(iv)    As for the second applicant, he was sent to the park to be there in support.  He sat on a bench where he could see the victim, Lai, talking to the two female members of his group.

(v) The last person to be accounted for – the seventh – was, Au Kai Lun, the co-defendant who was convicted of the lesser offence of wounding, contrary to s.19 of the Ordinance but who chose to make no application to appeal.  It was the prosecution evidence that he was together with the second applicant in the park in a supporting role.

14.As for the black rucksack containing a knife that was found near the park, it was the prosecution evidence that this was the property of the fourth applicant and had been used to carry the metal pipes to a spot near the park where they were distributed to the attackers.  A knife found inside the rucksack was identified as belonging to the fourth applicant.

15.As we have said, while independent witnesses were able to speak to the wounding itself and the injuries sustained by the victim, the successful prosecution of the five persons who faced trial rested on the evidence of the two accomplice witnesses.  Only they were able to identify the roles played in the wounding by both themselves and the five defendants.  None of the defendants chose to call witnesses or to testify.  As it was, the judge concluded that, considered in the context of all the evidence, the testimony of the two accomplice witnesses, in particular that of Choy, the first accomplice witness, reflected the truth of what had occurred.

16.In coming to that finding, the judge well understood, however, that both accomplice witnesses had their own interests to serve in giving evidence for the prosecution and that their evidence must therefore be approached with caution.  In this regard, he gave himself similar warnings in respect of both.

17.In respect of the first accomplice witness, Choy, he said (paragraphs141 and 142):

“I was acutely aware that [Choy] was an accomplice who had been convicted of the same offence as the other defendants and I was aware that on her own admission she was hoping to get a lenient sentence by giving evidence against other defendants in this trial and she had been given an indication that she could expect a lenient sentence if she did so and she had, in pursuance of that hope, made a witness statement ... implicating the defendants now before the court.

I therefore decided, despite section 60 of the Criminal Procedure Ordinance, to warn myself to exercise very special care when considering the honesty and reliability of her evidence as, clearly, she had motive to give evidence that would benefit her most in her own case.  I also warned myself to look for independent evidence that would corroborate her evidence, and that when such was not found I should proceed with extreme care before accepting her evidence as true as reliable and I reminded myself of the dangers of convicting on such uncorroborated evidence…”

18.It is to be noted that, having warned himself to look for “independent evidence that would corroborate [Choy’s] evidence”, the judge did not go on to say that, in the technical meaning of the word, he had found such ‘corroborating’ evidence.  Instead, he went on to list various matters that had been set out in the Agreed Statement of Facts, saying that they were matters which, in his view, “supported” Choy’s evidence.

19.In respect of the second accomplice witness, Kwong, the judge warned himself of his history of dishonesty and evasion:

“145.    When considering [Kwong’s] evidence I was also acutely aware that he was an accomplice with [Choy] and the other defendants charged and he had been convicted of the very same offence as the other defendants charged.  He had also been previously convicted for a drugs offence, he had jumped bail overnight, he had been arrested for a potentially very serious cocaine offence and he did hope to get some benefit by giving evidence against the other defendants in this trial, although I accept that he did not know what at this time.

146. He had also lied and misled the police in the first interview and he had protected only himself and [the third applicant] but not [the fourth applicant].  He had made denials in the second interview at a time when he said in evidence that he was wanting to come clean, and he had said other things in evidence that I did not accept as I found they were not true.

147. I therefore warned myself to exercise very special care when considering the honesty and reliability of his evidence, as, clearly, he had motive to give evidence that would benefit himself most in his own case.  I also warned myself to look for entirely independent evidence that would corroborate his evidence, and if such was not found, that I should proceed with extreme caution before accepting his evidence as true and reliable....”

20.Later in his Reasons for Verdict (paragraph 150), the judge went further, concluding that he could not accepted Kwong’s evidence as reliable “unless it was supported by [Choy’s] evidence or other independent evidence”.  In respect of the third and fourth applicants, the judge said that he was not prepared to accept Kwong’s evidence “alone” that they had been with him in carrying out the attack on Lai.

21.The judge went on to say that he was satisfied, however, that the two accomplice witnesses had not colluded with each and, concerning the second accomplice witness, Kwong, that – “in the end” – he had been “frank” about his involvement in the joint enterprise.

The common submission on the ‘corroboration issue’

22.Although it was Mr Ross, the fourth applicant’s leading counsel, who gave the most detailed submissions, counsel for all four applicants advanced the argument that, although the judge had not, by reason of s.60 of the Criminal Procedure Ordinance, Cap 221, been obliged to give himself an accomplice warning, he had nevertheless chosen to do so.  More than that, he had chosen to do so in terms which made it clear that he should look for evidence which, in accordance with the old common law rules, would technically be classified as corroborating evidence.  

23.The complaint made was that the judge had fallen into material error in identifying evidence as being corroborating when, in accordance with the old common law rules, it was not of the required nature to constitute such evidence.  In summary, it was submitted that, in directing himself that this was an appropriate case in which to be bound by the common law rules of corroboration, he then failed to apply those rules.

24.It was in 1994, some 15 years ago, that the common law rules as to corroboration were abrogated.  After the introduction of s.60 of the Criminal Procedure Ordinance, it was no longer obligatory for a judge to warn himself of the dangers of convicting on the uncorroborated evidence of an accomplice.  In England and Wales too the rule was abrogated.

25.It has long been recognised, of course, that the evidence of accomplices, who invariably have self interests to serve, must be approached with caution.  Accordingly, while the common law rules – which had become encrusted with technicalities to the extent that they bordered on the unintelligible – were abolished, there still remains the need in many cases for some form of appropriate warning to be given.

26.In R v Makanjuola and R v E [1995] 2 Cr App R 469, Lord Taylor CJ gave guidance to the courts of England and Wales as to the approach to be adopted following the abrogation of the common law rules.  It was, he said, a matter for the judge’s discretion what, if any, warning he considers appropriate in respect of an accomplice witness.  Where a warning is appropriate, it will be for a judge to decide the strength and terms of the warning.  Lord Taylor went on to say that any such warning does not have to be invested with “a whole florid regime of corroboration rules”.  In short, judges in England and Wales are no longer required to conform to any formula.

27.The guidance given in Makanjuola was specifically adopted by this Court in R v Chu Ip Pui [1997] HKLRD 549.  In giving the judgment of the Court, Mortimer JA observed that, whereas no limit could be put on a judge’s discretion in the matter, following the abrogation of the common law rules, it would be most unusual for a judge to feel obliged to give himself a direction in accordance with the old rules and certainly a judge could not be criticised for determining that he should not do so.

28.In summary, the law as it now stands in Hong Kong is that it is in the discretion of a judge whether he gives himself an accomplice warning.  If he concludes that he should do so, it is for him to determine the terms of that warning.  It would be contrary to the purpose of s.60 of the Criminal Procedure Ordinance for him to be required to conform to any formula.

29.While, as Mortimer JA observed, it may be unusual for a judge to feel obliged in the interests of justice to adopt the full panoply of the old common law rules of corroboration there is nothing in principle to prevent him from doing so.  Did the judge do so in the present case?  Counsel for the applicants submitted that he did.  We did not agree.

30.During the course of submissions, Mr Ross laid considerable stress on that part of the warning that the judge gave himself in respect of the accomplice witness, Choy, when he made specific reference to s.60 of the Criminal Procedure Ordinance.  In this regard, to cite it again, the judge said:

“I therefore decided, despite s.60 of the Criminal Procedure Ordinance, to warn myself to exercise very special care when considering the honesty and reliability of her evidence as, clearly, she had motive to give evidence that would benefit her most in her own case.  I also warned myself to look for independent evidence that would corroborate her evidence....”

31.Mr Ross put the rhetorical question: why would the judge have said that, despite s.60 of the Ordinance, he would look for independent evidence that would “corroborate” Choy’s evidence unless he intended that corroborating evidence to be admissible in accordance with the rules that existed before s.60 came into being?  If that was not his intention, there was no reason to mention s.60 at all.

32.We accept that the warning that the judge chose to give himself in respect of Choy’s evidence could have been worded in a more direct and simple form.  But it must be remembered that s.60 does no more than provide that any obligatory requirement for a judge to warn himself about convicting an accused on the uncorroborated evidence of an accomplice is abrogated.  That being the case, it is evident in our view that, in making a reference to the section, the judge was doing no more than saying that, while there was no longer a requirement to give himself a warning, he nevertheless intended to do so.  It is evident, however, that the judge understood that the terms of the warning were for him to decide.  The warning that he gave himself was to exercise “very special care” when considering Choy’s evidence.

33.It is correct that the judge, in the course of his warning, did use the word “corroborate” but, as Ms Sin, for the respondent, submitted, it is evident that he did not employ the word in the sense that lawyers used it before the amendment to the Criminal Procedure Ordinance but used it instead in the non-technical sense of constituting supporting evidence.  In this regard, as we have earlier noted, when the judge came to list certain evidence which, in his view, gave weight to Choy’s evidence, he did not use the word ‘corroborate’ but instead spoke of it as being evidence that ‘supported’ Choy’s testimony.

34.The evidential matters that were listed by the judge as supporting Choy’s testimony were drawn from the Agreed Statement of Facts.  These matters, while they showed that the crime had been committed, did not in any way comply with the old common law principle that corroborating evidence must show not merely that the crime had been committed but that it had been committed by the accused.  In that latter sense, the matters listed by the judge were entirely neutral.  If, however, despite his failure to say so in specific terms, the judge had intended to look for evidence that was corroborating in the old technical, legal sense, it is strange that, as a criminal judge of experience, he did not at any time attempt to analyse the evidential matters which he found “supported” Choy’s evidence in order to test whether they complied with the old rules of corroboration.

35.For these reasons, we are satisfied in respect of both accomplice warnings that the judge had no intention of burdening himself with the common law rules of corroboration and sensibly was doing no more than looking for evidence, whatever its nature, that in a commonsense way gave support to the testimony of the two accomplice witnesses.  Accordingly, there was no misdirection on his part.

The first applicant

36.Choy, the first accomplice witness, identified the first applicant as being the girlfriend of the fourth applicant and the person who, wittingly or not, had given rise to the joint enterprise to attack the victim by allowing herself at some earlier date to be photographed with him.  It was Choy’s evidence that the fourth applicant had shown her (and others) the photograph in question and had said that he intended to exact retribution by beating up the victim. 

37.The victim, of course, had to be located and it was Choy’s evidence that the fourth applicant had given the first applicant the job of contacting him.  Although Choy was not privy to any telephone calls made by the first applicant, she testified that, on the day of the attack, the first applicant left the group, saying that she was going to meet the victim.  Choy further testified that, nearer to the time of the attack, she heard the fourth applicant talking to somebody on the telephone and instructing that person to take the victim to the Tung Lo Wan Garden, the place where shortly thereafter the attack was carried out.

38.It was further Choy’s evidence that the fourth applicant dispatched her to the public park in order to give moral support to the first applicant.  Choy testified that she went to the park where she saw the first applicant alone with the victim.  She joined the two of them and was with them when the attack on the victim took place.  She said that, after the attack, neither she nor the first applicant sought to obtain any help for the victim and instead left the scene in order to re-join the group; that is, the other members of the joint enterprise.

39.During the course of cross-examination of Choy, the following exchange took place:

“Q.   As to what phone number Ah Fan [the first applicant] dialled, you didn't know.

A.    Right.

Q.    So it was your guess that she had called the boy, is that correct?

A.    Ronnie [the fourth applicant] told her to make the call.

Q.    But whether she had made a phone call, you don’t know.

A.    Right.

Q.    Madam, I put it to you that D1 [the first applicant] was not involved in any plot to beat up the boy, do you agree or disagree?

A.    I agree.

Q.    Just so that there is no misunderstanding, you agree that D1 was not involved in any plot to beat up the boy.

A.    Making the phone call.

Q.    Yes, but she was not involved in any plot to beat him up.

A.    Right.”

40.The judge, who was satisfied that Choy was an honest and reliable witness, dealt with this exchange in the following manner:

“PW1 [Choy] agreed that D1 [the first applicant] was not involved in any plot to beat up the victim but then said ‘making the telephone call’. Thereafter she agreed again that she was not involved in any such plot.

I found the position was that PW1 knew that D1 had not actually hit the victim and that all she had done was to arrange to meet him and sit with him. She therefore saw D1’s position as not taking part in the attack which I believed she understood the word ‘plot’ to mean. I also found it required an understanding of joint enterprise to understand that D1’s actions were considered part of the crime even though she had not hit anyone. I found in this respect that PW1 was having some difficulty understanding this legal situation and this is why she was giving conflicting answers on this aspect.”

41.On behalf of the first applicant, it was submitted that, without there being any evidential basis upon which to come to such a finding, it was not open to the judge to conclude that Choy, who in all other respects he had found to be reliable, must have been mistaken when she said that the first applicant had not been involved in any plot to attack the victim.  Choy had not been tested as to what exactly she had meant by that statement and, in such circumstances, the judge was not entitled to speculate that Choy must simply have been mistaken.

42.While findings may not be made without an evidential basis, in the exchange we have cited Choy was not testifying as to an issue of fact.  Read in context, she was being asked to state her opinion and she duly gave it; namely, that it was her opinion that the first applicant, other than being required to speak on the telephone to the victim, had not been a party to the plot to attack him.  But, of course, as we have emphasised earlier, the role of contacting the victim and taking him to an identified place, was crucial to the success of the joint enterprise.  In that respect, Choy had given evidence of facts which the judge accepted revealed that the first applicant had been given that task and had carried it out.  Whether Choy, as a prosecution witness, appreciated that fact or not was irrelevant.  In short, the question asked of Choy was impermissible and the answer irrelevant.

43.Aside from the issue of corroboration which was common to all four applicants, one further submission was made on behalf of the first applicant.  This was to the effect that the judge had made an error of fact concerning a telephone call reported to Choy by the first applicant, a call between herself and the victim.  However, the mistake – which went to the question of who had apparently made the call, whether it was the first applicant to the victim or vise versa – was, when considered in context, of minimal significance.  Nothing of consequence turned on it and, correctly in our view, counsel for the first applicant, having drawn our attention to the error, did not seek to press it as being material.

The second applicant

44.At all material times, Choy, the first accomplice witness, had been the girlfriend of the second applicant.  It was her testimony that, on the day of the attack, she and the second applicant had been summoned by the fourth applicant for the purposes of locating and “beating the boy”, that is, the victim.

45.Choy testified that at some much earlier time, the fourth applicant had shown the contents of a rucksack to herself and her boyfriend.  To her memory, the rucksack contained some pipes and a knife.

46.On the day of the attack, Choy recalled the fourth applicant being in possession of the same rucksack but on that occasion did not see its contents.  There was nothing in her evidence to suggest that her boyfriend, the second applicant, had himself been shown the contents.  She accepted that the fourth applicant had asked the second applicant to carry the rucksack.  She said, however, that the second applicant had refused.

47.As to the journey to the park where the attack took place, it was Choy’s evidence that the second applicant travelled in a separate taxi from herself.  She travelled, she said, in a taxi together with the third and fourth applicants and Kwong; in short, together with the three persons who, the judge was satisfied, made up the attack team.

48.As to the distribution of the pipes used in the attack, Kwong, the accomplice witness, testified that these were taken from the rucksack by the fourth applicant.  It was his evidence that the fourth applicant had had the rucksack with him all along and only after they had arrived at the vicinity of the park did the fourth applicant then open the rucksack and hand out the weapons and other paraphernalia such as gloves.

49.In this regard, it was a specific finding of the judge that the rucksack was only opened by the fourth applicant after he, the third applicant and Kwong had separated from “the rest”, that is, the other members of the group.  On that basis, he accepted that Choy had not seen the contents of the rucksack before entering the park and “did not realise that metal bars would be used in the attack”: para. 24 of the Reasons for Verdict.

50.However, the judge then went on to find that the second applicant had remained with the third and fourth applicants and Kwong after they had alighted from the taxis, this despite the fact that the second applicant had travelled in a separate taxi from the three members of the attack team and that there was no evidence from either of the accomplice witnesses to that effect.  If it was accepted that Choy may not have realised that weapons were to be used in the attack that were capable of inflicting really serious harm, it is difficult to see how the second applicant could have been denied the same benefit.  It was never suggested that he was part of the attack team itself and indeed his role appears to have been an essentially passive one, sitting on a bench in the park in some kind of supportive role.

51.It appears that the judge placed considerable emphasis on Choy’s evidence that after the attack, when the group met at the Causeway Bay MTR Station, the fourth applicant had asked the second applicant about the whereabouts of the rucksack and the second applicant had replied to the effect that “it was put in a rear lane”.  Anxious to recover the rucksack (which still contained a knife and a cigarette lighter bearing the names of the first and fourth applicants), Choy testified that the fourth applicant had arranged for herself and the second applicant to return to the vicinity of the park in order to look for it.  But it could not be found.  Choy recalled her boyfriend saying to the fourth applicant that “probably someone had picked it up.”

52.Obviously the fact that the fourth applicant had asked the second applicant about the whereabouts of the rucksack and had taken him back to the scene to attempt to find it, may give rise to an inference that the second applicant had earlier been given charge of the bag.  But, in our view, in the circumstances, that was not the only reasonable inference that could be drawn.

(i)  Importantly, no attempt was made to ascertain from Choy why and in what circumstances the fourth applicant had questioned the second applicant about the whereabouts of the rucksack.  There could have been any number of reasons.  By way of illustration, perhaps the second applicant had seen it as he himself left the scene.

(ii) What must also be remembered is that, before setting off for the park, the second applicant had refused to carry the rucksack.  Why then would he be prepared to take charge of the rucksack at the park when the weapons were being taken from it?

(iii) It must also be remembered that, when considering Choy’s knowledge of the contents of the rucksack, the judge had made a finding of fact that the rucksack had only been opened and its contents distributed after the attack group (the third and fourth applicants and Kwong) had separated from the rest of the group.

53.In our judgment, therefore, while the evidence clearly showed that the second applicant was a member of the group and was aware that the victim was to be “beaten” or “hit”, there was no basis upon which the judge could legitimately draw an inference that the second applicant knew that weapons were to be employed which were capable of causing really serious harm and indeed saw those weapons being distributed.

54.For that reason, we set aside the conviction for wounding with intent, substituting it with a conviction for the lesser offence of wounding contrary to s.19 of the Ordinance, the same finding made by the judge in respect of Au Kai Lun, the member of the group who drove to the park in the same taxi as the second applicant and who sat with him on a bench in the park.

The third applicant

55.The third applicant was convicted on the basis that he was one of the three men who made up the attack group.

56.Direct evidence that he was one of the three attackers came from the second accomplice witness, Kwong, who admitted to being one of the attackers himself and testified that the other two were the third and fourth applicants.

57.However, as we have said earlier, aside from the fact that Kwong was an accomplice witness with his own interests to serve in giving evidence, his involvement in the earlier stages of the police investigation had been marked by deceit and evasion.  For that reason, although the judge was satisfied that, when he came to testify, Kwong had been “frank” about his involvement in the joint enterprise, he felt unable to accept his evidence as being capable of being relied upon unless it was “supported” either by the evidence of the first accomplice witness, Choy, or by other independent evidence.

58.In looking for such support, the judge looked to see whether there was independent evidence, that is, evidence independent of Kwong’s testimony, that gave rise to an irresistible inference that the third applicant must have been one of the three attackers.

59.In this regard, the judge started from a finding of fact – a finding that, before us at least, was not challenged – that there had been seven persons involved in the joint enterprise.

60.Choy, the first accomplice witness, testified that four members of the group were in the park immediately before the attack took place.  It was her evidence, as we have said, that she and the first applicant, the two women in the group, were with the victim.  Also in the park, seated on a bench and keeping watch, were Choy’s then boyfriend, the second applicant, together with one other member of the group, Au: he being the defendant who chose not to appeal his conviction.

61.Choy’s evidence in this regard was substantially supported by the independent witnesses who, it was agreed, saw two young women speaking to the victim immediately before the attack and who, when the attackers – three in number – fled from the park, saw “at least one other male nearby” leaving the scene.

62.On Choy’s evidence, there being four in the park when the attack commenced, the three attackers had to be the three remaining members of the joint enterprise.  Although Choy was not able to identify the three persons who attacked the victim by sight, it was the sum of her evidence that, aside from those already in the park, the three remaining members of the joint enterprise were the third and fourth applicants and Kwong, the other accomplice witness.  In that respect, an analysis of Choy’s evidence gave direct support to the evidence of Kwong that it was he together with the third and fourth applicants who made up the three attackers.

63.Choy testified that, when she took a taxi to the vicinity of the park, the third and fourth applicants were in the taxi with her.  On her evidence, therefore, the third applicant was part of the group that went to the park.  Choy said that, when she alighted from the taxi, she went into the park and did not see what the others, including the third applicant, then did.  However, it was her further evidence that, after the attack, she and the first applicant made their way to join the rest of the group at the Causeway Bay MTR Station and it was there, she said, that she saw the third applicant again.

64.Kwong, the second accomplice witness, testified to leaving the scene of the attack in a taxi together with the third and fourth applicants although it was his recollection that they had gone to another MTR station, namely, Admiralty Station.

65.As we have understood the Reasons for Verdict, the judge concluded that the third applicant must have been a member of the group and one of the three attackers by means of the analytical deduction that we have outlined above.  In addition, of course, that analysis supported the evidence of Kwong and enabled the judge to conclude that Kwong’s evidence was, in this respect, evidence upon which he could rely.

66.In seeking to overturn the findings of the judge, counsel for the third applicant, Mr McGowan allied himself to the general submissions concerning the issue of corroboration.  In addition, he made extensive criticism of the list of proven facts set out by the judge in para. 155 of the Reasons for Verdict which he argued, in a good many instances, did not advance the case against the third applicant.

67.We accept that issue may perhaps be taken with certain of the judge’s findings in so far as they concerned the third applicant but, as we see it, the judge was attempting to view matters in the round and, by so doing, was able to conclude that there were, in fact, just seven members of the joint enterprise and that the third applicant, whatever his position in the hierarchy of the enterprise, was a member of it.  More than that, it was the sum of Choy’s evidence that the third applicant must have been one of the three attackers, her evidence in this respect directly supporting Kwong’s testimony.  In these fundamental respects, we do not see that the findings of the judge can be criticised.

The fourth applicant

68.What emerged in the clearest terms from the testimony of Choy and Kwong was that the fourth applicant was the leader of the joint enterprise, the one who recruited the rest of the group to assist in his attack on the victim.

69.As we have said earlier, Mr Ross, the fourth applicant’s leading counsel, centred his submissions on the corroboration issue.  In addition, however, he submitted that, as the judge had ruled that he could not accept the evidence of Kwong standing alone, that had to mean that he had dismissed it as being untrue.  That being the case, Kwong’s evidence could not thereafter be resuscitated by a finding that there was some supporting evidence for it.

70.But it is plain, in our view, that the judge did not reject the evidence of Kwong as being untrue.  The concern of the judge went instead to the reliability of Kwong’s evidence.  Even if at face value it appeared to be credible, could he trust it?  The judge’s caution was warranted.  He was therefore entitled, as he did, to say that he was not prepared to rely on that evidence unless it was “supported” either by the evidence of Choy, the other accomplice witness, or by other evidence.

71.As it was, the testimony of Choy was supportive in a number of material ways, certainly by way of her direct evidence that the fourth applicant was the ringleader of the criminal enterprise.

Mr Jeremy Cheung, instructed by Messrs LCP, assigned by Director of Legal Aid, for 1^st and 2^nd Applicants (D1 and D2)

Mr James McGowan, instructed by Messrs Littlewoods, for 3^rd Applicant (D5)

Mr Phillip Ross and Mr David Khosa, instructed by Messrs Raymond T.Y. Chan, Victoria Chan & Co., for 4^th Applicant (D6)

Ms Mary Sin, SADPP of the Department of Justice, for Respondent