The Queen v. Lam Tsz Wah

Case No.CACC 754/1983

Court

Court of Appeal

Date22 Dec 1983

Judge—

Case Document

100%

CACC000754/1983

IN THE COURT OF APPEAL

Criminal Appeal

No. 754 of 1983

BETWEEN

	THE QUEEN
	and
	LAM TSZ WAH	Appellant

_______

Coram: McMullin, V.-P., Silks and Fuad, JJ.A.

Date: 22nd December 1983

__________

JUDGMENT

__________

Fuad, J. A. :

1. The Applicant, Lam Tsz-wah, was one of six young men jointly indicted on three counts, of the murder of So Wai-hung (count 1); wounding a second man with intent (count 2) and assault occasioning actual bodily harm to a third man (count 3). At the close of the case for the prosecution, all the defendants other than the Applicant were acquitted on all three counts after a successful submission of no case to answer. In respect of the Applicant the Commissioner also ruled that he had no case to answer on counts 2 and 3 but left the case to the jury against him on count 1. The trial proceeded on that count and the Applicant was convicted of the murder of So Wai-hung and duly sentenced to death. He now seeks leave to appeal against that conviction.

2. The events of the 30th July 1982 which led to the death of the deceased were confused and confusing. It appears that on the evening of that day a boat trip was organised with supper and dancing on board. A group of five young men, which included the three victims who were the subject-matter of the three counts in the indictment, joined the boat party, in the company of four girls. This was at about 7 p.m. Shortly afterwards the boat left the Jumbo Pier at Aberdeen with 80 or so young people on board. When the buffet meal was served a certain amount jostling took place but there was no clear evidence that anything really significant occurred as a result of that.

3. Around midnight the boat returned to the shore and this time it docked at the Tin Wan Re-site Area. Some of those on board jumped ashore before the boat had properly docked. The five young men mentioned earlier disembarked shortly afterwards and found themselves in an open space between the pier and one of the blocks of buildings in the re-site area. There was a wire fence on one side of this open space, opposite the block. Behind them they saw some men taking empty beer bottles from crates that were stacked nearby; and in front of them, barring their exit through one of the gates of the area, was another group of men who had armed themselves with iron bars and wooden poles. The five men with whom we are presently concerned were attacked as they tried to run out of the area. Three of them were assaulted, including Kwok Kwok-ming and the deceased So Wai-hung.

4. Police officers who had been called out in response to a report of a robbery nearby came to the scene and shortly afterwards the deceased was found lying on the ground between one of the blocks of huts and a wire fence. He was terribly injured and found, to be dead on arrival at hospital.

5. The evidence of the pathologist who conducted the post-mortem examination of the deceased showed that he had been the victim of a prolonged and savage beating. He had, it was plain, literally been beaten to death. We do not think it necessary to detail the injuries found but the deceased's body bore lacerations, cuts and bruises on the head and neck; and abrasions and bruises on his back, chest arms and hands. The base of the skull had been transversely fractured into two halves. The pathologist reached the conclusion that death was due to the fractures of the skull with intracranial haemorrhage and injury to the brain. He gave it as his opinion that the injuries which caused So Wai-hung's death were likely to have been caused by blunt and heavy instruments. There must have been more than one blow on the head to account for the fractures.

6. As regards Kwok Kwok-ming the statement of another doctor which was read in evidence, revealed that he had a laceration on the head and another over his left shoulder. There were abrasions on his left arm and left thumb. He was concussed but there was no skull fracture. Some of the injuries, it is not clear which, required stitching. Kwok Kwok-ming told the court that he had had to spend two days in hospital.

7. It appears from the evidence that on the 1st August 1982 the Applicant heard from his family that he was wanted by the police to help in their enquiries in connection with a wounding case. He reported to a police station oh the afternoon of the same day and was released after questioning. He was finally arrested oh the 6th August. On the afternoon of that day he was formally cautioned by a Det. P.C. and when told that he was suspected of taking part with others in the assault and wounding of Kwok Kwok-ming, he said -

"[I] understood the aforesaid words. I did not take part in fighting that night. Because of fear [I] went to the ice conveying boat where[I] slept. I do not know other matters."

8. The only witness put forward by the prosecution as having seen the Applicant on the boat and while the incident at the re-site area was taking place was Kwok Kwok-ming (P.W.5). We will return to his evidence' and the way it was dealt with by the Commissioner in his summing-up, presently. All that is necessary to say here is that the witness pointed to D5 and not to the Applicant as one of the men he saw on the boat during the party, and as the only person he was able to identify amongst those who took part oh the assault upon him (the witness). He also said that it was D5 whom he had picked out at an identification parade. But according to the evidence of the Police Superintendent who had conducted this identification parade oh the 6th August, the witness had in fact picked out the Applicant.

9. The other evidence adduced by the prosecution against the Applicant was that a "metal bar" (our own observation of this exhibit - P.33 - during the appeal leads us to the conclusion that it is in fact the lower part of a beach or garden umbrella stand) recovered from the scene by the police on the morning following the incident was later found to bear a finger impression made by the Applicant, and a blood stain that could have come from the deceased. This exhibit was discovered under a piece of machinery some distance away from the place the deceased was lying, on the other side of the wire fence.

10. A chemist from the Government Forensic laboratory explained that modern science can group blood by a number of systems: the "ABO" system, the "PGM" system the "ESD" system, the "HP" system - and occasional use is made of the "Rhesus" system as well. His examination showed that the bloodstain on exhibit P.33 and a blood sample taken from the body of the deceased were each Group B under the "ABO" system, 1 under the "PGM" system and 2 under the "ESD" system. From statistics available to him, he was able to give his opinion that only 2% of the Chinese Population of Hong Kong would have blood in their veins which would be so categorised by a combination of the three tests employed.

11. The Applicant elected not to give evidence before the jury and called no witnesses.

12. Mr. Bernacchi (who did not represent the Applicant at his trial) submitted that the entire case for the prosecution stood or fell on the circumstantial evidence of the blood stains and the finger print. Mr. Jackson for the Crown (who also did not appear at the trial) conceded so much and we have no doubt that this is so.

13. Mr. Bernacchi submitted that there was no admissible identification evidence linking the Applicant with the offence of which he was convicted - and even if the evidence tendered were admissible, it was so unreliable that it should not have been left to the jury. As has been mentioned, this evidence came from Kwok Kwok-ming. Counsel contended that his testimony in court was the only admissible evidence on this issue; that of the Police Superintendent in charge of the identification parade was in direct conflict with what Kwok Kwok-ming had said and was hearsay. All that the Superintendent told the trial court about this was that on the third identification parade he conducted on the 6th August, which included the Applicant and another suspect, Kwok Kwok-ming identified the Applicant. The relevant questions and answers went like this -

"	Q.	Was the first witness Kwok Kwok-ming?
	A.	That is correct.
	Q.	How long did it take him to make the identification and who did he identify?
	A.	Approximately ten seconds it took him to identify [D6, the Applicant].

14. Thus we do not know in what manner Kwok Kwok-ming made the identification - whether he said something, or pointed to the Applicant or touched him.

15. This is how the Commissioner dealt with the identification evidence in his summing-up-

"Now am not overlooking the evidence of Kwok Kwok-ming who stated that at an identification parade he identified the sole defendant as obviously being at the scene, but it is quite correct to say, as has been pointed out by both counsel, that the visual identification by this witness and the others was so poor and so unsatisfactory that it would be entirely unsafe to rely on it. You have heard of the conditions. the confused conditions, the poor lighting etc.; they had never seen them before except on board this launch, and we do not know what the conditions were. You can ignore it if you discount the evidence of visual identification alone; but taking it into consideration with the fact that P.33 was found there at the scene the next morning, you may find it difficult to escape the conclusion that Kwok Kwok-ming, when he identified the 6th defendant at that identifi-cation parade, may well have been right in saying he saw him there that night."

16. We have been referred to passages in ARCHBOLD (41st Edition p.907) and PHIPSON (13th Edition, pp. 337-339) which discuss what might be called "evidence of past identification". In view of the conclusion we have reached on this aspect of the case, we do not feel it necessary to attempt to resolve the problems created by the state of the authorities, the solutions to some of which, we might add, are not agreed upon by the text-book writers. We recognise that there is room for much reasonable competitive argument about the status and admissibility of evidence of identification other than that given by a witness at the trial identifying the defendant as a participant in the commission of an offence. We will not attempt to list every possible situation, but we have in mind the following which could raise difficult issues - where an identifying witness, having made a previous identification out of court, gives evidence at the trial and -

	(a)	is unable to identify anyone in the dock and cannot remember having made a previous identification;
	(b)	remembers having previously identified someone but does not think that that person is in the dock;
	(c)	remembers having made a previous identification but cannot remember whom he identified;

17. Of the examples we have given situation (a) arose in respect of one witness in R. v. Osborne and Virtue [1973] 1 Q.B. 678, and situation (b) in respect of another. Situation (c) occurred in R. v. Burke and Kelly (1847) 2 Cox C.C. 295, although, of course, situation (b) and (c) are very similar.

18. In our case, it will be recalled, Kwok Kwok-ming, at the trial, said he had identified D5 at the identification parade, whereas the Superintendent (whose memory was reinforced by notes taken at the time, some 10 months before the trial) said he had in fact picked out the Applicant. Let us suppose that Kwok Kwok-ming had pointed to the Applicant when he was giving evidence, surely both his evidence and that given by the Inspector was admissible. That this is so is made clear by the House of Lords decision in R. v. Christie [1914] A.C. 545. As Lord Haldane L.C. put it at p.551, the evidence is admitted "to show that the (witness) was able to identify at the time and to exclude the idea that the identification of the prisoner in the dock was an afterthought or a mistake". Apart from the value of the evidence to strengthen the case for the prosecution, the evidence of the person conducting the relevant identification parade as to whether or hot the witness picked out anyone and, if so, whom, can be an important safeguard for the defendant. The admission of such evidence accords with common sense and well established practice.

19. We do not see how a question of admissibility arose here simply because the evidence of Kwok Kwok-ming and that of the Superintendent turned out to be inconsistent. Rather we think it is a matter of weight.

20. There can be no doubt that in the passage of the summing-up earlier read out, it was a clear misdirection to tell the jury (on two occasions) that Kwok Kwok-ming had said that he had picked out the Applicant at the identification parade. The Commissioner seems to have overlooked the discrepancy between the evidence given by Kwok Kwok-ming and that given by the Superintendent. In the circumstances the weight of Kwok Kwok-ming's evidence, and thus of the identification evidence as a whole, was so reduced that the jury should have been told to disregard it entirely. However, in relation to the murder count which was all that was left before the jury, since Kwok Kwok-ming did not purport to link the applicant with an assault on the deceased, and in view of the fact that the Applicant's statement to the police admitted in evidence, by irresistible inference, put him at the general scene, we do not consider that the misdirection and the failure to direct the jury to give no weight to the evidence at all could have had any effect on the jury's verdict.

21. Moreover, later in the summing-up, the Commissioner told the jury "... if you are not sure that this blood stain on P.33 is that of the deceased, then as a matter of law there is insufficient evidence upon which you could convict this defendant of murder or any other offence."

22. Mr. Bernacchi's main criticism of the summing-up concerns the way the Commissioner dealt with the circumstantial evidence, based on the contention that it raised mere suspicion against the Applicant. It was suggested, in effect, that there was a gap in the chain of circumstantial evidence due to the fact that Kwok Kwok-ming received an injury on the head which must have bled since it required stitching; there was evidence to suggest the high probability that his injury was caused by an iron bar, possibly, on the prosecution evidence, wielded by the Applicant himself; and there was no evidence as to which group Kwok Kwok-ming's blood belonged. Therefore it could not be said that Kwok Kwok-ming did not belong to that very small proportion (2%) of the population of Hong Kong whose blood would match that of the deceased or the blood stain on the umbrella stand (P-33).

23. Mr. Bernacchi cited two unreported cases to us in support of his argument on this point. In the second case, Wong Yu-choi v. The Queen, Criminal Appeal 583 of 1983 (20th July 1983) Jones, J. adopted and applied the following passage from the judgment of the Court of Appeal in Chan Yuet-Kwon and another v. The Queen, Criminal Appeal 212 of 1973 (24th December, 1973) -

"An inference of guilt may not properly be drawn from primary facts unless it is the only inference which can reasonably be drawn from those facts. Nor can any combination of inferences amount to proof of guilt unless in each instance the only reasonable inference which can be drawn from the facts on which it is based is one of guilt, for where primary facts admit of two inferencesone of guilt and one of innocence, they can give rise to no more than suspicion and if suspicion be added to suspicion the total can be no more than suspicion."

24. We would say at once that we do not doubt the principles applied in these cases but we feel that once there is sufficient evidence to go before the jury (and we have no doubt that the circumstantial evidence we have referred to was indeed sufficient) the question is whether or not the jury was properly directed.

25. During the course of the appeal we invited argument upon the duty of a judge in summing up to a jury when the prosecution case rests only upon circumstantial evidence. No authority was referred to us, but we have since come upon a case from Northern Ireland, McGreevy v. D.P.P. [1973] 1 All E R. 503, where the House of Lords addressed the very point which concerned us and we feel we should discuss the case although it was not cited to us. In McGreevy, the point of law certified to the House of Lords was in these terms -

"Whether at a criminal trial with a jury, in which the case against the accused depends wholly or substantially on circumstantial evidence it is the duty of the trial judge not only to tell the jury generally that they must be satisfied of the guilt of the accused beyond reasonable doubt, but also to give them a special direction by telling them in express terms that before they can find the accused guilty they must be satisfied not only that the circumstances are consistent with his having committed the crime but also that the facts proved are such as to be inconsistent with any other reasonable conclusion."

26. Lord Morris of Borth-y-Gest, with whose speech Lords Reid, Hodson, Simon of Glaisdale and Cross of Chelsea agreed, reviewed the practice in the U.S.A., Canada and Australia, and a number of English cases, and came to the conclusion that there was no rule at common law which made it necessary in such cases for the judge to give a further direction that the jury must not convict unless they are satisfied that the facts proved are not only consistent with the guilt of the accused, but also such as to be inconsistent with any other reasonable conclusion, once the judge had discharged the duty to make clear to the jury in terms adequate to cover the particular features of the case that they are not to convict unless they are satisfied beyond reasonable doubt of the guilt of the accused.

27. The submission reflected in the reference with which the House of Lords was concerned was based on the direction of Baron Alderson in Hodge's Case (1838) 2 Lew CC 227, where he told the jury that since the case was made up entirely of circumstances, before they could convict the prisoner, they had to be satisfied, "not only that those circumstances were consistent with his having committed the act, but they must be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty persons." We think it is helpful to read certain passages from the speech of Lord Morris of Borth-y-Gest. First from P.509 -

"I consider that the form in which this general requirement [that proof must be established beyond reasonable doubt] is emphasised to a jury is best left to the discretion of a judge without his being tied down by some new rule which would be likely to have the effect that a stereotyped form of words would be deemed necessary. In a case in which inferences may have to be drawn by a jury such facts as are found by them a judge will wish to give the jury guidance as to their approach and in giving that guidance he will certainly be assisted by having in mind what was said by Alderson B and by Dixon CJ and by others who have given expression to the same line of thought."

Then from p.510 -

"	If, having regard to the facts and circumstances of a particular case, a summing-up is held to have been inadequate and to have failed to set the jury on their proper line of approach or to give them proper guidance a conviction might be held to be unsafe and unsatisfactory. But I am averse from laying down more rules binding on judges than are shown to be necessary.
	In my view, the basic necessity before guilt of a criminal charge can be pronounced is that the jury are satisfied of guilt beyond all reasonable doubt. This is a conception that a jury can readily understand and by clear exposition can readily be made to understand. So also can a jury readily understand that from one piece of evidence which they accept various inferences might be drawn It requires no more than ordinary common sense for a jury to understand that if one suggested inference from an accepted piece of evidence leads to a conclusion of guilt and another suggested inference to a conclusion of innocence a jury could not on that piece of evidence alone be satisfied of guilt beyond all reasonable doubt unless they wholly rejected and excluded the latter suggestion. Furthermore a jury can fully understand that if the facts which they accept are consistent with guilt but also consistent with innocence they could not say that they were satisfied of guilt beyond all reasonable doubt. Equally a jury can fully understand that if a fact which they accept is inconsistent with guilt or may be so they could not say that they were satisfied of guilt beyond all reasonable doubt.
	In my view, it would be undesirable to lay it down as a rule which would bind judges that a direction to a jury in case where circumstantial evidence is the basis of the prosecution case must be given in some. special form provided always that in suitable terms it is made plain to a jury that they must not convict unless they are satisfied of guilt beyond all reasonable doubt." .......................
"	To introduce a rule as suggested by learned counsel for the appellant would, in my view, not only be unnecessary but would be undesirable. In very many criminal cases it becomes necessary to draw conclusions from some accepted evidence. The mental element in a crime can rarely be proved by direct evidence. I see no advantage in seeking for the purposes of asumming-up to classify evidence into direct or circumstantial with the result that if the case for the prosecution depends (as to the commission of the act) entirely on circumstantial evidence (a term which would need to be defined) the judge becomes under obligation to comply when summing-up with a special requirement. The suggested rule is only to apply if the case depends 'entirely' on such evidence. If the rule is desirable why should it be so limited? And how is the judge to know what evidence the jury accept? Without knowing this how can he decide whether a case depends entirely on circumstantial evidence? If it were to apply not only when the prosecution case depends entirely on circumstantial evidence but also if 'any essential ingredient' of the case so depends there would be a risk of legalistic complications in a sphere where simplicity and clarity are of prime importance."

28. The Commissioner dealt with the circumstantial evidence in this way. He said that the jury must be satisfied beyond reasonable doubt that the Applicant struck the deceased with exhibit P.33;and that if he did strike him he intended to cause serious harm or to kill, by reference to all the evidence, drawing such inferences from the evidence as seemed proper. They must not speculate or guess but deal with the evidence and reach a decision on their view of the evidence given and produced in court. He then dealt with the burden of proof, in terms which are not criticised "satisfaction beyond reasonable doubt, in other words to such a degree that you are sure". He went on to comment on the fact that the Applicant had not given evidence - again no complaint is made about this aspect of his summing-up.

29. After reviewing the facts, the Commissioner pointed out that "the case for the Crown depends essentially on circumstantial evidence." He defined "circumstantial evidence" as being "nothing more than a fact from which you may infer the existence of the fact in issue; and the fact, the main fact in issue is did this young man ... assault the deceased with P.33 and cause him one or more of the serious injuries.".

30. The commissioner continued by dealing with the evidence of the Applicant's finger print being found on exhibit P.33. And this is what he told the jury about the bloodstain on the exhibit -

"	Again, as far as you are concerned, the blood stains found on this could have come from the deceased. I must add too that this chemist did not say in fact that the blood stains which he found on P.33 were those of the deceased. Now even if he thinks so, could he say so? These are facts, you see, for you to decide. An expert comes here to give his opinion to assist you but he is not entitled to state as facts, the very facts, which you have to find. It is for you to decide on all the circumstances whether you have any doubt at all that these blood stains found on P.33 were in fact the blood stains of the deceased or whether in fact they could have been from some other person of the same blood grouping. And do not forget that the chemist did say - I think it was something like 14 per cent only with the same blood group - ABO: B: PGM: 1, and EsD: 2; as an example. It may be that the defence, that Mr. Kwan suggests, "Well, it may well be somebody else's." It is for you and you alone to decide on the evidence, the relevant evidence before you.
	Now you must, as I've told you and I'll repeat it again, decide as a matter of fact whether, in your opinion, the blood stains found on P.33 not only matched those of the blood taken from the deceased but are in fact his. You must not, of course, allow the experts to substitute their opinion for yours. Now, of course, on the question whether the blood stains found on P.33 are consistent with being that of the deceased, and the finger-print expert's opinion that the finger-print was that of the defendant, and also whether Dr. WONG Koon-sang's opinion should be accepted, while you are not bound by what they say you must act on evidence, and if there is no fact, no circumstances shown before you which throw doubt on their respective opinions, then all you are left with are their opinions. Now this is particularly important in relation to the blood stains. As far as doctors are concerned, we all have a certain amount of trust in doctors, and a certain amount of apprehension, I suppose, when we go to see them, that is easy to understand, but in relation to blood stains you have that of the - opinion of the chemist.
	It is a matter of science in which most of us are not - do not understand how it is done, how they do grouping of blood stains You have to either reject or accept the evidence of the chemist. In this case, in my view, subject to anything you can think of, there is no reason why you should disbelieve any of these experts whatsoever, in their opinions.
	Now if you have any doubt whatsoever as to whether the bloodstain found on exhibit P.33 is in fact that of the deceased, then the benefit of that doubt must be given to the defendant. What it really amounts to is this, that the Crown has not satisfied you on that particular point beyond reasonable doubt. Now I will say this, that if you are not sure that this blood stain on P.33 is that of the deceased, then as a matter of law there is insufficient evidence upon which you could convict this defendant of murder or any other office. In my view, the key to this, the key issue you have got to decide, was that blood stain on P.33 that of the deceased Now that does not mean, of course, that the deceased - that the defendant inflicted it. I will deal with that and elaborate on that point in a few moments.
	Now, you see, without the evidence of the blood stain there is only evidence that the defendant handled it at some time. As to what he did with it there is no direct evidence, there is only evidence from which you can draw an inference."

31. We would here mention that the Commissioner made a mistake when he referred to 14% of the population having blood similar to that of the deceased. The forensic chemist did say that the blood of approximately 14% of the population would satisfy the ABO and PGM systems in relation to the blood stain, but later said that the blood of only 2% of the population would fall into the same group as the bloodstain found on exhibit P.33 when all three tests were made - ABO. PGM and EsD. Mr. Bernacchi made no point about this mistake and Counsel for the Crown, in his closing address' had given the correct figure when he added "Now that's still a lot of people, but what the Crown say is that lying nearby was this dead or dying young man with blood of the same group as on the iron bar." We do not think that the jury's verdict could possibly have been affected by this understandable slip.

32. Much later in the summing-up, the Commissioner returned to this matter and said -

"Now there are a number of questions, of course, which you will have to ask yourselves, some of them you are already aware, but they bear repetition. The first thing, was that P.33 handled by the 6th defendant at any time and, if so, on the evidence are you satisfied that he handled it on the 30th July that night at that scene? Secondly, was there a blood stain found on it and, if you conclude that there was, was that blood stain not only consistent with the blood of the deceased and was it, on your view of the evidence - it could only be that of the deceased? If you think, on a review of the evidence, that it might have been that of somebody else other than the deceased then, of course, you must, as I have already told you give the defendant the benefit of the doubt."

33. After dealing with certain hypotheses put forward by the Applicant's Counsel at the trial (to which we will have to return) the Commissioner again told the jury that it was for them to decide if the bloodstain on exhibit P.33 came from the deceased or not, and later mentioned once again that they had to be satisfied beyond reasonable doubt that the blood was that of the deceased.

34. We entertain no doubt that the summing-up on the issue of whose blood was on exhibit P.33 and the inferences which could properly be drawn was full and fair in the light of the guidance given by the House of Lords in McGreevy. We do not consider it to be a valid criticism that the Commissioner did not expressly tell the jury that they must, before drawing inferences from the evidence, exclude the possibility that the bloodstain on exhibit P.33 came from Kwok Kwok-ming. Nor do we accept the contention that the Commissioner gave the jury the impression in any part of the summing-up that the bloodstain, being of the same group as that of the deceased, could only have come from the deceased.

35. It was further submitted by Counsel for the Applicant that the Commissioner unfairly withdrew from the jury a number of reasonable hypotheses consistent with innocence put forward by Counsel at the trial in his closing address. Counsel had suggested that it could be the case that the defendant had touched exhibit P.33 before it was used by other persons or after someone else had used it to attack the deceased. He had also raised the possibility that the defendant might have been holding the exhibit at the time of the assault on the deceased, but waving it about to protect himself.

36. It is understandable that the Commissioner did not mention the second proposition, but about the first he said this -

"	Now Mr. Kwan, in his address to you. said that this object might have been handed to him after it had been used; you cannot say whether or not. Now the answer to that is it's entirely a matter of speculation. I am at a loss, on review of all the evidence, to find any evidence which - and I refer to evidence which could support any suggestion that there's an inference that it was handled by somebody else. We don't know, it may or may not have been the defendant, but there is no inference in my view from which you can deduce that it was handled on that night by anyone else other than the 6th defendant.
	The finger-print expert was asked if it was possible that other finger-prints could not - were sometimes not found on various items, but he was not asked if he had examined that P.33 for other finger-prints and found none.
	Now with great respect to Mr. Kwan's very able hypothesis to you, what he has put to you is a matter of speculation and that you must not do. You are thrown back to the evidence which is before you, and upon that and that alone you must reach your decision."

37. In another passage criticised by Mr. Bernacchi the Commissioner told the jury -

"The evidence, as I've pointed out is circumstantial. Now as Mr. Kwan has rightly pointed out, and I must emphasise this, that it is necessary, before drawing the inference of the accused's guilt from the circumstantial evidence that there are no other co-existing circumstances which will weaken or destroy the inference. Now you have heard what he has said to, you and I have stated that what he has put forward are matters of speculation: you must look at the evidence before you and decide on that evidence whether there are or there are not any co-existing circumstances which will weaken or destroy any inference which you say think points to the defendant and to the defendant only."

38. As experience shows, a judge will often deal with any hypothesis raised on behalf of the defendant (or which might occur to the judge himself) which might weaken or destroy the prosecution case, even though it is not suggested by direct evidence. The extent of which

he does so will depend on the inherent reasonableness of the-hypothesis, having regard to the facts. Although the Commissioner's approach was perhaps more robust than one another judge might have adopted, we do not feel that he went too far. Even if someone else did handle exhibit P.33 that night, this does not reduce the cogency of the evidence that the Applicant's finger print was found on it and the validity of the inferences that might properly be drawn from that fact in the light of the evidence as a whole. It could well be that in making the comments he did the Commissioner was, in a somewhat oblique way, commenting upon the lack of direct evidence from the Applicant.

39. Mr. Bernacchi's next submission was that the defence case, as revealed by the Applicant's statement to the police under caution had not been properly put to the jury. The argument went this way - although the Applicant's statement had been read out to the jury in full, the Commissioner had stressed only a part of it and had thus failed to point out to the jury that his case was that he had not taken part in the fighting. We need only say that when reading the passage of the summing-up complained of, we find no possible foundation for this criticism.

40. We have already mentioned that we consider that the circumstantial evidence in this case was sufficient to be left to the jury. We do not accept that it raised mere suspicion, as has been contended, and therefore agree with Mr. Jackson, for the Crown, that since the Applicant chose not to go into the witness box to explain the circumstances in which his finger print came to be on exhibit P.33 he cannot complain if a proper inference is drawn, and if it is drawn more readily in view of his election - Sung Shu -sing v. The Queen [1962] H.K.L.R. 587, a decision of the Full Court applying Reg. v. Sharmpal Singh [1962] A.C. 188 (P.C.).

41. We are thus left in no doubt that the Commissioner was entitled to leave to the jury the inference from the evidence as a whole that the Applicant took some part in a serious assault upon the deceased using exhibit P.33, and in all the circumstances, that the Applicant was guilty of homicide. In the light of Mr. Jackson's very fair concession that the summing-up was not satisfactory in relation to the doctrine of common intent in its application to the offences of murder and manslaughter, and his consequent stand that the Crown could not support a conviction for more than manslaughter, we do not think it necessary to set out all the passages in the summing-up to which each Counsel drew our attention.

42. As we said at the outset, the events on the night the deceased was killed were most confusing since several men were clearly involved in assaulting the deceased and others, in different places, and the evidence of the Applicant's participation was limited to the inferences that could properly be reached from the circumstantial evidence of the bloodstain and finger print on exhibit P.33. Thus a particularly careful direction was called for, and the Commissioner faced a formidable task. No criticism can be levelled at the way the Commissioner began to explain the issue to the jury - indeed in certain passages the direction can be said to have been unduly favourable - but, with due respect to the Commissioner, in recapitulating the law, there is a long passage which might well have been difficult for the jury to comprehend. It seems (and this is understandable at the conclusion of a long and difficult trial) in that passage the Commissioner lost the train of his thoughts and grammar. There is one sentence that takes up 16 lines of the transcript. Immediately after it comes the following passage -

"	If you think, on the other hand, that he was not aware that others were attacking the deceased and that he had one blow which had not caused his death, deliberately caused his death, but which was a dangerous one, and then desisted - there was no evidence of that - then he would be entitled to be acquitted.
	Now if you - and I repeat again, if you think he intentionally caused the blow on this deceased, it must have been unlawful in he circumstances, then if you are of the view that it was dangerous for him to do so and that he contributed to the death of the deceased in any way, although inadvertently, it is manslaughter.
	Now do not overlook, and I emphasise this, that if he was one of two or more who were attacking this deceased, although he did not have the intention to cause serious bodily harm but was lending his assistance to other or others who were, whose intentions were to cause serious bodily harm, then he is guilty of murder."

43. The final paragraph we have quoted clearly contains a misdirection -if it could reasonably be inferred that the Applicant did not himself share the intention to cause serious bodily harm he would not be guilty of murder. This misdirection came just before the jury retired, and after the confusing passage to which we have referred. We, therefore, reach the conclusion, agreeing with the submissions and the concessions made, respectively, by Mr. Bernacchi and Mr. Jackson, that it would be unsafe to uphold the conviction for murder. There was however, ample evidence for a conviction for manslaughter on proper directions. Applying the proviso (in so far as it might be necessary) in respect to the failure to direct the jury totally to disregard Kwok Kwok-ming's evidence of identification, we grant the application and allow the appeal to the extent of quashing the conviction for murder and substituting a conviction for manslaughter.

Representation:

B. Bernacchi, Q.C., Lily Yew (Chung, Kwan, Chan & Evans) for Appellant.

C.G. Jackson for Crown.