Leung Cheung and Others v. The Queen
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CACC000722/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 722 OF 1970 -----------------
Coram: Rigby, C.J., Mills-Owens & McMullin, JJ. Date of Judgment: 6th March, 1971. ----------------- JUDGMENT ----------------- 1. The four appellants, aged 20, 16, 18 and 18 respectively, were convicted of murder. They now apply for leave to appeal against their convictions. In accordance with the usual practice, we have treated their applications for leave to appeal as the hearing of the appeal itself. 2. The facts may be briefly stated. Sometime between 8 and 9 p.m. on the evening of the 5th September, 1970, a group of youths were playing football on the concrete surface of a road running between blocks of flats which form the married quarters of the employees of the Taikoo Dockyard. The players were youths aged between 14 and 19 and all of them lived in that particular area. There were four players each side with about 8 to 10 spectators, all of a similar age. Pieces of paper had been put down at either end of the make-shift pitch to demarcate the goal posts. The road itself was a cul-de-sac with a waterfall at the far end. Throughout the trial the goal at the far end of the cul-de-sac was referred to as the "waterfall end". The goal at the near end was referred to as the "Coca Cola end" by reason of the fact that a large Coca Cola advertisement sign was placed at the entrance to these quarters. The area was dimly lit by two electric lights on either side of the road, such lights protruding slightly from the buildings and each light on either side being situated approximately where the goals at either end had been placed. 3. The deceased, a youth named CHAN Yiu-yi and nearly 15 years of age was keeping goal at the waterfall end and a youth named Yip aged 15 years was keeping goal at the Coca Cola end. Whilst the game was in progress a number of youths, estimated at 10 or 12 in number, suddenly emerged scene, encroached upon the area and without provocation or warning indiscriminately proceeded to attack both players and spectators. They attacked them with wooden poles and what appeared to be lengths of iron piping. There was some evidence that a cyclist had ridden up to the area, either together with or almost immediately after the gang of aggressors had arrived on the scene, and that some of the aggressors approached the cyclist and took from the cycle weapons which had been loaded on to it. 4. At the material time the adopted father of the deceased was playing a game of mah-jong in a neighbour's flat on the eighth floor one of the blocks of flats overlooking the road in which the game of football was being played. At about 9.25 p.m., the deceased entered the room and tapped his father on the shoulder. The father noticed there was blood around his nose and mouth and a black mark, which resembled the impact of a shoe, on his chest. The boy was taken to the Tang Shiu Kin Hospital and from there, later the same evening, he was taken to the Queen Mary Hospital. Later, his condition deteriorated and an exploratory operation on the brain was carried out; he died at 9.50 p.m. on the 9th September at the Queen Mary Hospital. A post mortem examination revealed that the brain was bruised and swollen and that death was due to a fracture of the skull. 5. Two other youths, Yip Yun-fan, the goal-keeper at the Coca Cola end, and Ng Chi-yeung, an innocent spectator, had been injured in the course of the same concerted attack. Ng was struck on the head with a hard object and later admitted to hospital; he was discharged the same evening after a number of stitches had been put in his head. Yip was assaulted by 3 or 4 persons and received injuries to his head and hands as a result of which he was detained in hospital for 17 days. 6. Eight of these youths, both players and spectators, gave evidence as to the circumstances of the attack, but none of them was able to identify any of their assailants. 7. As is so frequently the position in the Courts throughout the Colony, the case against all the appellants rested entirely upon their allegedly voluntary statements without any independent or corroborative evidence of any kind. The apparent voluntariness with which persons suspects crime, without any interrogation or questioning of any kind, are prepared to unburden their souls and confess to the police, however serious the nature of the offence may be, is a remarkable feature of life in Hong Kong. It is, indeed, a most laudable and praiseworthy feature of the resident community in Hong Kong that criminals, without any prompting or suggestion, are so ready and willing to confess and it is, of course, a feature that contributes to the very high rate of detection of crime in the Colony. The difficulty, however, with which the courts, from the lowest to the highest, are continuously faced is that such offenders when brought before the courts and confronted with their allegedly voluntary confessions, almost invariably most vigorously repudiate such confessions and either deny that any confession was made by them at all and assert that the document tendered in evidence was either dictated to him by a police corporal or constable, or that he was compelled to copy it down from a previously prepared piece of paper or, in the further alternative, that the confession was neither freely nor voluntarily made. This case provided no exception to the general rule. 8. It is necessary to refer in some detail to the circumstances in which the appellants were arrested and to the statements subsequently tendered in evidence. At about 8 a.m. on the morning of the 8th September, a police party under the direction of a Police Inspector Yeung proceeded to the Tai On Building, Shaukiwan. There, they went up to a flat on the 19th floor. They were looking for a man named LEUNG Cheung. LEUNG Cheung is, of course, the name of the first appellant. They rang the bell and the door was answered by a woman. They disclosed their identity - they were in plain clothes - and said they were looking for LEUNG Cheung. The woman shut the door against them. They continued unavailingly to ring the bell. They could hear various movements inside the flat. Their efforts to gain admission having proved unsuccessful they then proceeded to force open the iron grille door and make a hole in the wall, as the result of which they were then able to open the inner door. Having entered the flat they found the first three appellants in the bedroom, together with the woman who had answered the door, and a baby. The police officers then informed the three appellants that they were looking for them in connection with a fight which had taken place on the 5th September at the Taikoo Married Quarters in Quarry Bay. All three appellants were handcuffed and taken by jeep to the Shaukiwan Police Station. At the police station the first appellant, LEUNG Cheung, was interviewed by Detective Corporal 1860, Tung Shum, a member of the police party who had arrested the appellants. The detective corporal then made the following entry in his notebook:-
At that time, of course, the boy Chan was still alive. Having recorded that entry he then read it over to the first appellant and asked him if he understood it. The first appellant replied that he understood and then took the corporal's pen and made the following entry in the corporal's notebook:-
9. It is pertinent to observe at this stage that in the course of this trial the appellants were not only indicted with the murder of the youth, Chan, but also in separate counts of the same indictment with the wounding with intent of the youths Yip and Ng and also upon a 4th count with the offence of affray; they were, in fact, convicted on all counts. When charged later by Police Inspector Yeung, at 15.19 hours on the 8th September, with the wounding of Yip, the first appellant, after having been formally cautioned, said:-
10. At 09.42 hours on the same day, the second appellant was being separately interviewed at Shaukiwan Police Station by D.P.C. 6416, Kwok Muk-kin, also a member of the arresting party. According to the evidence of D.F.C. Kwok, he made the following recording in his notebook:-
Having done so, D.P.C. Kwok read what he had written over to the second appellant and asked him if he understood. The second appellant replied in the affirmative and then and there took the constable's notebook and made the following entry in that notebook:-
11. It is said that after the second appellant made this statement he voluntarily took the constable to an open space on a hillside near to a Chinese School in Shaukiwan - which itself was not far distant from the scene where the three youths had been assaulted while playing football - and there pointed out to him a wooden pole lying on the hillside. The pole was 28 inches in length and 1 1/2 inches in width. Upon returning to the police station the second appellant, under caution, voluntarily wrote the following entry in the constable's notebook. The statement and the preamble written by the constable in that notebook are in the following terms:-
12. Later, that same afternoon, the second appellant was formally charged by Police Inspector Yeung with the offence of the unlawful wounding of Yip. After being charged and cautioned, he made the following statement:-
13. At 9.40 a.m. on the 8th September a statement, recorded under similar circumstances, was taken by D.P.C. 1034, Lai Chiu-hoi - also a member of the arresting party - from the third appellant, SHING Kam-tong. That statement, after the preamble written by the constable himself and read over to the third appellant, was written by the appellant himself in the constable's notebook. The preamble and statement are as follows:-
14. Later that same day, the third appellant was charged by Police Inspector Yeung with the unlawful wounding of Yip. Having been charged and cautioned, the third appellant made a statement in the following terms:-
15. On the following morning, 9th September, 1970, the fourth appellant was arrested by Detective Corporal 1860, Tung Shum, and D.P.C. 1034, Lai Chiu-hoi at certain premises in Shaukiwan. He was taken back to the police station and there D.P.C. Lai - the constable who, the previous day, had taken the statement from the third appellant - explained to him why he had been arrested. The constable recorded in his notebook what he had said to the appellant and then cautioned the appellant. Then, according to the testimony of the constable, the fourth appellant, without further ado, wrote the following statement in the constable's notebook. The preamble and statement are in the following terms:-
Later, in the afternoon of the same day, the fourth appellant was charged with the wounding of Yip and after being charged, he simply said:-
16. On the afternoon of the 10th September - the boy, Chan, having died in the intervening period - he was formally charged and cautioned with the murder of CHAN Yiu-yee, and in answer to that charge, he said:-
Again, immediately after being charged with the murder of Chan, he was charged and cautioned with the wounding of the boy, Ng, and in answer to that charge, he said:-
17. So much for the statements. 18. The first and second appellants are brothers-in-law, the second appellant being married to the first appellant's sister. The third appellant was a mutual friend. The woman who had opened the door when the police arrived at the flat on the morning of the 8th September, 1970, was in fact the first appellant's wife and the baby was their child. The defence put forward was that the three of them were watching television when the police arrived at the flat and rang the bell. The first appellant's wife opened the door with the first appellant close behind her. The police were in plain clothes and one of them said to the appellant and his wife: "Young boy" - addressing the first appellant - "go and fetch Leung Cheung", the name of the first appellant. The first appellant, not knowing who these people were, was scared. The door was closed and the first appellant then joined his two companions and told them to get dressed. By the time they had got dressed, the police had already forced their way into the flat. All three of them were arrested, handcuffed and taken by jeep to the police station. On the way, the first appellant was questioned by the detective corporal about the fight which had taken place at Quarry Bay and he replied that he knew nothing about it. The corporal then struck him. At the police station he was taken into a small room and the corporal proceeded to write for some time on a piece of paper; he then asked the first appellant to copy from that piece of paper into the corporal's notebook and then sign what he had written down. The first appellant, who was at that time handcuffed to a chair, refused to do so. The corporal then beat him and finally the first appellant, as the result of duress and threats, copied into the notebook from the piece of paper and then signed the notebook. With regard to the statement which he subsequently made when charged with the wounding of Yip, he said that he had been compelled by threats to write down that statement. 19. The second appellant told much the same story. As to the production of the wooden pole, he said that he was taken to that place by the constable - Kwok; that there were a number of wooden poles there and that the constable pointed to one of them and told him to pick it up and take it back to the police station. The statement recorded in the constable's notebook was one he had been compelled, under threat of violence, to copy out from a piece of paper into the constable's notebook. 20. Similarly, the statement that he made when later charged with the wounding of Yip was one that he was compelled to make. 21. The third appellant gave evidence of a similar nature stating that he had been compelled, as a result of actual physical violence and threats of further violence, to copy from a piece of paper into the constable's notebook and to sign his name to what he had written. Again, he alleged that the further statement that he made when charged with the wounding of Yip was one that he had been compelled to make. 22. The fourth appellant was arrested at the factory where he was working. He was given no reason as to why he was arrested. He was taken back to the police station. In a room at the police station he was accused by Constable Lai Chui-hoi of being one of the persons who had taken part in the fight on the 5th September at the Married Quarters of the Taikoo Dockyard Employees. When he denied it the constable hit him on various parts of the body. Then the constable took out a piece of paper and a notebook and told him to copy the contents of the piece of paper into the constable's notebook and to sign it. At first he refused to do so but then, as the result of further blows from the constable and threats of further injury, he gave way and, under compulsion, copied from the piece of paper into the notebook and then signed his name to it. 23. The trial judge, at the conclusion of the usual voire dire held in the absence of the jury to determine whether or not the statements had been freely and voluntarily made, having heard the evidence of the police officers and the appellants themselves, ruled that the statements were freely and voluntarily made. In his final address to the jury, the trial judge referred in detail to those statements and made it clear to the jury that it was for them to decide, with regard to each statement considered separately and against each appellant, what weight, if any, should be attached to those statements. 24. No complaint is made by either Mr. Henry Litton, who appears for the first, second and fourth appellants, or by Mr. Charles Ching, who appears for the third appellant, as to the manner in which the judge left the matter to the jury for their consideration; nor is it suggested that there was any misdirection, whether in law or upon the facts, by the trial judge in this respect. Mr. Ching, however, has made it a specific ground of appeal that the trial judge was wrong in finding that the statement made by the third appellant had been proved beyond reasonable doubt to have been freely and voluntarily made. In support of that submission, Mr. Ching sought to rely upon the circumstances in which the first three appellants had been arrested, handcuffed and taken to the police station. Two matters, elicited in cross-examination were relied upon by Mr. Ching in the course of his argument. First, Detective Corporal Tung Shum, who was the officer in charge of what was described the "Crime Detection Squad" and appears, for all practical purposes, to have been in charge of the whole operation, said in cross-examination that at the time the police went to the flat at Tai On Building and arrested the three appellants they already had enough evidence upon which to charge them with the offence of wounding the boy, Chan - and by implication - the two other youths. If that was, indeed, the position, then the appellants should have been charged forthwith with the offences which they had allegedly committed and there was no justification whatsoever for the taking of the cautioned statements - as distinct from any statements they might elect to make when formally charged with the specific offence or offences and then cautioned. Indeed, if the police were already in possession of sufficient evidence upon which to charge the appellants the cautioned statements taken by Detective Corporal Tung Shum and the two detective constables at the police station, after informing the appellants that they were merely under suspicion, were simply a farce entered into for the sole purpose of getting the accused, if possible, to provide further evidence against themselves out of their own mouths on a matter upon which the police already had sufficient evidence upon which to charge them. If, indeed, that was the true position, it was clearly improper for the police to seek to obtain further incriminating evidence from the mouths of persons concerning whom they already had sufficient evidence to support a specific charge and they should have been charged forthwith without any form of cautioned statements being first taken from them. It was a matter upon which the trial judge should have specifically ruled whether, in the circumstances, it was proper for the statements to be admitted in evidence. 25. But there are two comments we would make upon this aspect of the case. First, those admissions by the Detective Corporal in cross-examination were not elicited until the trial judge had actually concluded the voire dire and had already ruled upon the admissibility of the statements. Secondly, we think it is quite clear that the Corporal was, in fact, wrong when he said that the police were already in possession of sufficient evidence to justify charging the appellants. It would seem clear beyond doubt that, at best, in arresting the appellants they were acting on suspicion as the result of secret information received. The evidence at the trial against the three appellants consisted solely of their own statements. If there had been any independent or corroborative evidence to support their statements and to implicate the appellants in the commission of these offences we have no doubt whatsoever that such evidence would have been before the court. If, indeed, there was no sufficient evidence upon which to charge the appellants there could be no objection to taking cautioned statements from them as persons under suspicion. 26. Secondly, Mr. Ching submitted that the appellants should have been cautioned at the flat at the time they were actually arrested and that the only reason for not cautioning them until the police had taken them back to the police station and then taking them into separate rooms, getting out their notebooks, making entries in those notebooks, was solely for the purpose of obtaining statements from them. Mr. Ching further stresses the fact that it is admitted that there were conversations in the jeep between the police and the three appellants on the way to the police station and at a time when they were under arrest but had not yet been cautioned. The explanation or excuse given by the police officers as to why they had not cautioned the three appellants at the time they arrested and handcuffed them in the flat was, first, because they had not time to do so and, secondly, because they were surrounded and obstructed by large numbers of occupants of the building who had gathered round and were curious to see what was going on. To that explanation Mr. Ching replies that a verbal caution to each appellant was all that was required to inform him of the reasons for his arrest and that he was entitled to remain silent and not make any statement unless he wished to do so. 27. On general principles we think there is much to be said in support of Mr. Ching's argument. It is, unfortunately, a fact that in practically every case that comes before these courts involving serious charges of murder and manslaughter, where statements involving confessions or admissions are tendered in evidence, the taking of those statements has been left by the police to a detective corporal or a detective constable. We are firmly of the opinion that it would be eminently more satisfactory that where serious charges are involved the interrogation of any suspect, or the taking of any statement under caution, from him should be conducted by a police officer of, or above, the rank of inspector. 28. Returning, however, to the facts of this case, we are not satisfied that the fact that the appellants were not cautioned at the actual time they were arrested at the flat is in any way sufficient to vitiate the cautioned statements subsequently taken from them at the police station. The trial judge, having heard the evidence, was satisfied that those statements were freely and voluntarily made. There are no grounds upon which this court can properly come to a contrary view. 29. We turn now to consider the remaining grounds of appeal put forward by Mr. Henry Litton and Mr. Charles Ching on behalf of the appellants. A fairly large number of grounds of appeal have been advanced but we think it may fairly be said that the complaints of the appellants can be reduced to two main grounds:
In addition to these two main lines of attack upon the convictions there were sundry other subsidiary grounds to which we will later briefly refer. It may be said, however, that even if these subsidiary grounds were found to be of substance they would not, singly or collectively, in our view, warrant any interference with the verdicts of the jury. There were, in addition, appeals on behalf of the 3rd and 4th appellants against the sentence of death imposed upon them on the first count. However, at the hearing of the appeal Mr. Litton, on behalf of the fourth appellant, informed us that he could not pursue this part of the appeal and was not seeking to contest that the appellant had been over the age of 18 years at the time of the commission of the alleged offences. As to the third appellant the trial judge accepted the certificate of birth produced for his scrutiny as conclusive of the age of the third appellant. That certificate, upon the face of it, disclosed that the appellant was born at the Tung Wah Hospital on the 4th September, 1952 The only other evidence in the matter was a medical report indicating that the age of the accused at the time of examination was between 17 and 18 years of age. It is, we understand, common ground that that medical opinion is based upon the physical examination of the accused, including radiological examination of his bone formation, and that this method of determining age is approximate only and may be in error by a margin of as much as one year either above or below the age stated in the doctor's opinion. No other evidence on the matter was laid before the trial judge and we are unable to say that he was in error in coming to the conclusion that he reached, namely, that the birth certificate produced as to the age of the appellant was, in the absence of any other evidence, conclusive evidence that he was born on the 4th September, 1952, and was, therefore, one day over 18 years of age at the time he committed this offence. 30. It was the contention of both counsel that even if the statements had been rightly admitted the evidence as a whole was still insufficient to found the convictions on the 1st, 2nd and 3rd charges, that is to say the murder count and the two counts of wounding. It is in this connection that the criticisms set out above as ground two of the complaints are levelled at the directions given by the trial judge to the jury. Both counsel based themselves, for the purposes of this contention, on certain passages in the summing-up which, they allege, are misleading or inadequate or actually wrong as directions on the law relating to the nature of the intent required to be proved on the murder and wounding counts. In addition Mr. Litton, for the first, second and fourth appellants, invited us to say that the trial judge erred in two distinct and different ways in directing the jury on the question of inferences to be drawn from fact. Thus, he says (ground 4(c)) that the trial judge actually misunderstood the evidence concerning the bicycle upon which, according to certain of the witnesses, had been conveyed the iron pipes used by the assailants and by his direction upon the facts concerning that question, taken in conjunction with what each of these three appellants is alleged to have said in his statements to the police, to have led the jury wrongly to infer that the appellants must therefore have realised, before the attack began, that weapons of that sort were going to be used. This subsidiary point made by counsel on behalf of the first, second and fourth appellants bea ...(illegible) upon the important question of the inference of common intent but, by way of clearing the ground before considering the principal contentions of both counsel on that issue, it may be said that we do not think that there was any misdirection upon the facts in that connection. The evidence concerning the manoeuvring of the bicycle suffers to some extent from the conditions of confusion which obviously prevailed at the time of its appearance, and some of the statements made about it by the two witnesses who spoke of it may not be altogether clear. But it was certainly open to the jury to infer that the person wheeling the bicycle arrived at roughly the same time as the remainder of the invading group and that it was part of the invaders impedimenta. 31. A second subsidiary point which Mr. Litton makes on behalf of his clients on the topic of inference concerns a different area of the evidence. Since it can be quickly dealt with it will be preferable to dispose of it before turning to the main contention by both counsel in relation to the alleged misdirections on common intention. Dr. Ong, the Government Pathologist, told the court that the injury which caused the death of the deceased might equally well have been the result of a blow upon the head with a hard instrument or of a fall upon the ground in which the head came in contact with a hard object. In dealing with this evidence in relation to the undoubted fact that nobody had seen how the deceased received his injury the trial judge pointed out that although the Crown wished the jury to infer that the deceased had received the fatal injury from one of the assailants he might, on the facts, just as readily have received it by accidentally tripping and falling as he ran away, Mr. Litton says that this direction was wrong because it invited the jury to speculate upon possibilities in the absence of clear evidence and, furthermore, that it was an invitation to speculate in a manner unfavourable to the appellant since the possibilities suggested would have left open a conviction for manslaughter whereas a further possibility, and one not mentioned by the judge was that the injuries were caused in some manner wholly unconnected with the incident. 32. That direction, if it stood upon its own, might be said to have been insufficient inasmuch as the judge did not there specifically say that if the jury thought it possible that the deceased might have received his injury in a way unconnected with the actions of any of the appellants they must acquit. We are satisfied, however, having regard to several other clear and forceful directions which he gave on the question of intention that the jury cannot have been in any doubt as to the nature of their duty in relation to the possibilities put before them or of any other possibility which they may have considered. We are fully satisfied on the evidence as a whole that it was open to the jury to infer as a fact, beyond reasonable doubt, that the fatal injury was the direct result of the attack. In this connection we would refer particularly to the general directions given on the question of intention which appear at pages 4 and 5 of the typescript of the summing-up and to which reference is later made herein. 33. Turning now to the question of common intention it is to be observed that each of the disputed statements admitted in evidence did contain matter from which it might be reasonably inferred that each accused had gone in combination with others to carry out a reprisal attack against unspecified persons. Only two of the appellants, however, admitted going armed to the place of the attack. In his statement Ex. D15 the first appellant said:-
And the second appellant in his statement Ex. D17 said:-
By contrast the third and fourth appellants made no admission of possession of arms of any sort and nothing in the statements of either of them could be taken as going further than saying, with regard to their physical acts, that they took part in a scuffle either using, or intending to use, their fists. The third accused actually admitted striking several blows with his clenched fist while the fourth accused merely said:-
As to all this evidence Mr. Litton, on behalf of the first, second and fourth appellants (grounds 4(a) and (b) of the appeals in each case), rightly stresses the fact that the direction on the question of common intent was of primary importance. He asks us to say that the judge did not make it clear to the jury that before they could convict any one of his clients on any one of the first three charges they must be satisfied that that particular appellant had gone with the others intending to take part in the attack and either (a) was armed with a dangerous weapon and intended to use it in such a way as to be likely to cause grievous bodily harm or (b) was aware that his companions, or some of them, were so armed and showed by his behavour that he was a consenting party to the use of such weapons. The point here was, of course, whether it had been made sufficiently plain to the jury that it was their duty to decide whether, upon the evidence put before them as a whole, it was a possible inference that one or other member of the attacking group had wholly exceeded a common design which may only have been to prosecute an unlawful fight or attack without the use of weapons. Easing himself upon the principle stated in the case of Anderson & Morris(1) and accepting that the statement of each of the three appellants admitted to taking part in an unlawful attack, he argued, (a) that nothing in any of the statements disclosed a preconcerted plan to use dangerous weapons and, (b), this being the case the judge should have told the jury that so far as it was open to them to infer that there had been such a plan they should do so only if that was the sole reasonable inference to be drawn. He conceded that a common design sufficient to implicate all participants might arise either by premeditated planning beforehand or, ex improviso, at the time of the actual affray. He made the point, however that the latter possibility required a much more careful direction on common intent in view of the scattered and confused nature of the events following upon the attack. Thus, as to the first accused's apparent admission to going to that place armed, he says this may readily be understood as meaning that he took up the weapon which he used only at the very moment the attack was launched. It was in this connection that he referred to the evidence concerning the bicycle carrying the weapons which he said had been misconstrued by the judge. If the bicycle had arrived after the main body it might have been some indication, in his submission, that the supply and use of weapons had never been part of the preconcerted design. The first accused may simply have snatched up the metal rod in the heat of battle. In such a case, he says, the jury should have been made very clearly aware that his intention might have been less than an intention to cause grievous bodily harm. Similar considerations would apply to the case of the second appellant and as regards the fourth appellant he says that this appellant, if his statement be taken at face value, demonstrated a positive intention not to use any weapons. He asked us to say that the sentence in that statement referring to the conveying of water pipes by a person called Hau Yiu may readily be understood as the mere disclosure to the police, on the 9th September, of a fact which had, in the intervening days between the 5th and the 9th, come to his knowledge. 34. So far as the evidence concerning the bicycle and the weapons is concerned we have already indicated that it was open to the jury to find that the only reasonable construction of the evidence was that the bicycle had arrived at more or less the same time as the attacking party and was associated with that party. While we are not in any doubt as to the validity of the principles stated in Anderson & Morris(1) it does not appear to us to be of much assistance to any of the appellants in the present case. It is true that the trial judge, having told the jury that they must acquit if, in respect of any given accused, they were not satisfied beyond reasonable doubt that he was a member of the group and had the intention to kill or cause grievous bodily harm, went on to say:-
That passage might well have been made the subject of legitimate complaint on the basis of Anderson & Morris, at least as regards the appellants who went to the affray unarmed, had a verdict of manslaughter been returned. But the directions as to common intention, although in general terms, appear to us to have been correct in relation to the murder and wounding counts. At page 3 of the summing-up the trial judge said as follows:-
A little later he said (p.3):-
On the wounding counts the trial judge directed the jury (p.5) in the following terms:-
35. Mr. Litton has not attacked these passages as being inadequate in themselves but in relation to the second of them he said that its force was seriously weakened by what the judge said later (p.21of the summing-up) as to the various possibilities, other than the Crown's contention of an armed attack upon the deceased, which might have accounted for the injuries found upon the deceased. We have dealt with this passage in relation to the suggestion that the jury was invited to speculate and we would only wish to add that it does not appear to us that the direction on p.21, although possibly incomplete, can have come anywhere near destroying the effect of the perfectly clear directions given in the earlier part of the summing-up. These directions, coupled with the usual directions given on the question of the onus and degree of proof, cannot, we think, have left the jury in any doubt that they were entitled to convict only if they were satisfied, beyond reasonable doubt, as to any of the appellants, that he intended to take part in an assault of such a kind that the infliction of grievous harm was a result foreseen and accepted by him. 36. Mr. Ching, for the third appellant, attacks the summing-up on the question of common intention from a different and possibly more subtle angle. Having cited, with approval, the terms of the summing-up which are set out in the second of the two excerpts beginning "You will remember ......." and quoted above, he then refers to a passage which appears in the next paragraph but one upon page 4 of the summing-up, which is in the following terms:-
This, he says, derogates from the propriety and value of the earlier direction by suggesting to the jury that they could convict any one of the accused if they were satisfied that he knew that weapons likely to cause death or serious injury were likely to be used by one of his companions, even if the jury remained in doubt as to whether the appellant was himself a consenting party to that violence. In other words, he complained that the trial judge had defined 'intention' in terms of knowledge. It is an ingenious suggestion, and if those words stood alone it may be that they would have amounted to a material misdirection. We are satisfied, however, that the immediate context in which they appear is sufficient of its own to remove any such impression, for the judge went on immediately thereafter to say:-
It is true, of course, that in that passage the judge refers to: "This intention to kill" and, as a matter of strict logic, it may be argued that this is a reference back to the immediately preceding passage in which 'intention' is said to be defined in terms of mere knowledge. If this passage be read as a whole it seems to us in the highest degree unlikely that even that paragraph could have conveyed so misleading an impression. Taken with the other directions on the same topic which appear in close proximity thereto immediately prior to and subsequent to the same passage, we are left in no doubt at all that the jury cannot have been misled by the words complained of. 37. A further point, possibly of more substance, is made by Mr. Litton as ground 6. Counsel for the Crown had pointed out that P.W.4 had told the Court that he had seen "the deceased lying upon the ground" immediately after the attack. This witness, a boy aged 16 had been one of the eight players taking part in the game. He said that after the assault had taken place, he ran up to the 9th floor flat where he lived. On looking out of the window of the flat he saw a person, whom he allegedly recognised as the deceased, Chan, lying on the ground a few yards from the waterfall at the far end of the pitch. About half a minute later he saw this person, whom he said was the deceased, Chan, get up and walk away. Mr. Litton says that it was advisable that the judge should have reminded the jury that the evidence of the witness, P.W. 4's was unreliable. There is no doubt that there were discrepancies between P.W. 4's evidence and that of certain other witnesses on the question whether or not the deceased was wearing a singlet at the time of the attack. It is also true, according to the evidence generally, that the lighting in the area was not good at the time and that P.W.4 purported to have identified the deceased from a ninth storey window. The evidence of P.W.4 was, no doubt, of considerable importance. Without it there would have been a total lack of eye witness evidence concerning the location of the deceased from the time he was last seen by some of the witnesses on duty as goal-keeper, immediately prior to the attack, to the time, about 9.25 p.m., when he approached his father at a neighbour's flat nearby. However, the difficulties raised by P.W.4's evidence appear to have been very fully canvassed by the trial judge at pages 9 and 10 of the typescript of the summing-up and the judge gave a clear warning to the jury to take into account the possibility that the person seen lying upon the ground might have been somebody other than the deceased. 38. Mr. Ching, for the third appellant, takes the further point that there was no corroboration of the material particulars in the statements of the third accused upon which the Crown relied. He does not suggest that there is any rule of law obliging the judge to direct the jury that it is unsafe to convict in a homicide case upon uncorroborated confessional statements. But he asks us to say that such a direction would have been desirable in the present case in view, particularly, of the spirited attack made upon the Crown's evidence relating to the voluntariness of the statement. Judicial opinion will necessarily vary considerably as to the precise circumstances under which any such direction might seem to be desirable and the matter is, of course, primarily in the hands of the trial judge. Perhaps, therefore, the most that can be said in relation to this ground of appeal is that, whilst in a given case a Court of Appeal might find the circumstances attending the admission of statements so suspicious that it might feel compelled to say that the trial judge ought to have given such a direction, the circumstances would have to be clear, indeed before any court of appeal would feel itself in a position to say that the failure to give such a direction amounted to a miscarriage of justice. We are not satisfied that any such contingency arose in the present case. 39. Finally, we would refer to a ground of appeal raised by Mr. Henry Litton, that in view of the manner in which Crown Counsel referred to the photographs of the deceased, taken at the time of the post-mortem, the learned trial judge ought to have directed the jury that on the medical evidence all the external wounds seen on the deceased were surgical wounds. We were informed that in his final address to the jury Crown Counsel clearly and demonstrably drew the attention of the jury to those photographs - there were five in all. The words actually used by Crown Counsel, as appearing in the transcript, were:-
It cannot be too strongly and emphatically emphasized that the duty of counsel appearing for the Crown is to place the facts fairly, impartially and dispassionately before the jury and this Court deprecates in the strongest possible terms the use of language by a prosecutor the natural tendency of which can only be to inflame and prejudice the minds of the jury against an accused person or persons. There are, indeed, several passages in the final address of Crown Counsel in this case which go far beyond the universally accepted principle that counsel for the Crown is expected and required to conduct the case for the prosecution both fairly and dispassionately. But having said that, we do not think that there is any real substance in the point taken by Mr. Litton. It was clear from the evidence of Dr. Ong that the wounds shown on the head of the deceased were surgical wounds. It may well be that in view of the specific reference by prosecuting counsel to these photographs it would have been desirable for the trial judge to have reminded the jury that the wounds shown on the head of the deceased were in fact surgical wounds, but we think that it must have been clear to the jury that this was in fact so. 40. For all these reasons, we are satisfied that the application of all four application for leave to appeal must be dismissed. Representation: Litton, Q.C. & Ceaser Wong (H.H. Lau & Co.) assigned for 1st & 2nd Appellants. Litton, Q.C. & Sakhrani (A. Tsang & Co.) assigned for 4th Appellant. C. Ching (A. Tsang & Co.) for 3rd Appellant. Corooran, D.D.P.P. for Crown/Respondent. (1) (1966) 2 Q.B.D. 110. |