HKSAR v. Sze Kwan Lung and Others
Read the full judgment text of CACC 92/2002 on BabelCite. This Court of Appeal judgment was delivered on 12 June 2003.
1. On 2 February 2002, following a trial before Gall J and a jury which had occupied about 68 days, the first Appellant (D1) was convicted of two counts of murder and one count of arson. The remaining Appellants (D2 to D7) were acquitted of the murders jointly alleged against them and D1 in the first two counts, but they were convicted in the alternative of manslaughter on each count. In addition, they were each convicted of the third count of arson which was also a joint allegation against them
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CACC000092/2002 CACC 92/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 92 OF 2002 (ON APPEAL FROM HCCC 6/2001) ____________
____________ Coram: Hon Stuart-Moore VP, Stock and Yeung J JA Dates of Hearing: 19 and 20 February 2003 Date of Judgment: 12 June 2003 _______________ J U D G M E N T _______________ Stuart-Moore VP: Introduction 1.On 2 February 2002, following a trial before Gall J and a jury which had occupied about 68 days, the first Appellant (D1) was convicted of two counts of murder and one count of arson. The remaining Appellants (D2 to D7) were acquitted of the murders jointly alleged against them and D1 in the first two counts, but they were convicted in the alternative of manslaughter on each count. In addition, they were each convicted of the third count of arson which was also a joint allegation against them and D1. 2.Sentencing was postponed until 4 February 2002 when D1 received concurrent mandatory life sentences on counts 1 and 2 for murder. D2 to D5 all received concurrent sentences of 12 years' imprisonment on the manslaughter counts. The remaining Appellants, D6 and D7, each received concurrent sentences of 13 years' imprisonment for the offences of manslaughter. Each of the Appellants received a concurrent sentence of 5 years' imprisonment for arson. 3.The Appellants now seek leave to appeal against conviction and D2 to D7 also seek leave to appeal against sentence. Having regard to some of the grounds of appeal which have been raised, so far as conviction is concerned, we shall give leave to appeal to all of the Appellants, including D2 whose application was slightly out of time. We have treated the hearing of these applications as the hearing of the appeals. Prosecution's case 4.The allegations against the Appellants arose from events on 2 August 2000, after a number of Mainland claimants, seeking the right to live in Hong Kong, went to Room 1301 in Immigration Tower without an appointment, apparently seeking to achieve a face-to-face meeting with the Director of Immigration. This followed a series of earlier confrontations between claimants to the right of abode and Immigration Department officers. 5.At about 3.00 pm, D1 was interviewed by immigration officers as he had been the representative of the group on previous occasions. D1 stated that he was not the group's representative this time. He was told that if the protesters did not leave they would be removed. He made a request that if action was taken to remove the protesters, he should be taken away first. He said that if this was done, the others would be more likely to leave peacefully. It seems that D1, from conversation he had with the officers, was under the impression he might soon be granted a one-way permit by Mainland authorities which would solve his problem. 6.At 4.30 pm, the group was advised that they should leave as the office was due to close. A few did so, but twenty-three were left behind. These people included the seven Appellants and fifteen others who were prosecuted in subsequent proceedings. 7.Further requests were made for the claimants to leave but these were ignored. From 4.30 pm, video cameras were used to record what occurred inside Room 1301 up to the moment when immigration officers moved into the room, at almost exactly 6.00 pm, to evict the claimants. At that moment, all the claimants, with the exception of D1, stood up. Liquid was poured from a number of the water bottles some of them were holding. Most of these bottles, as it turned out, had been used to conceal the presence of highly flammable thinners. Almost immediately, there was a fireball. One of the claimants, Lam Siu-sing (Lam), was covered in flames. This explosion of fire also caused extensive burns to Leung Kam-kwong, an officer attached to the Immigration Department. He had acted with conspicuous bravery, together with a number of others from the Department, in the face of considerable danger. 8.Leung Kam-kwong and Lam both died nine days later from the burns they had received. This was reflected in the date shown in Counts 1 and 2 of the indictment which alleged the murders of Lam and Leung Kam-kwong, respectively, as having occurred on 11 August 2002. 9.These terrible events caused many other casualties to be taken to hospital. They also left behind a very considerable amount of damage. Significantly, amongst the items left at the scene, seven plastic water bottles and five cigarette lighters were found. Only one of the plastic containers was found to contain water. 10.A Government chemist's examination revealed that traces of toluene, a major constituent in thinners, were to be found on several items taken from various parts of the room. 11.The main evidence produced by the prosecution came from the video-tapes which had captured most of the claimants' activities for the one and a half hours leading up to moment when thinners were ignited. 12.Using the material which was before the jury in the form of four video-tapes (Exhibits P. 15-18), coupled with the corresponding transcripts of what could be heard on these, several important general matters were quickly established. 13.Some of the claimants could be seen holding plastic bottles containing clear liquid. In other cases, bottles were placed near them. No one in the room was seen drinking from the bottles and no one smoked. From time to time, some of the claimants were seen twisting or touching the caps of their bottles. Both D2 and D3 were seen removing the caps to their bottles. 14.With specific reference to D1, he was seen and heard asking people to sit in such a way as to enable the females to be at the back of the room. D5, holding a bottle of liquid, moved from the back row to sit down next to D1. A bottle was passed to D4 at about this time. 15.Much of the conversation in the room was taking place in Hoklo dialect. D1 also spoke Cantonese and at one stage said to an immigration officer:
16.D1 addressed the group of claimants in the room after this. He told them that he would telephone the police to say that almost ten people were preparing to commit suicide. He later leant against the wall, apparently seeking the group's agreement for him to be allowed to negotiate on their behalf, and mentioned that:
17.After a discussion amongst the members of the group, D1 made a telephone call to the police saying that somebody was going to commit suicide at Immigration Tower. Later, a mobile telephone in the room rang. This was handed to D1 who spoke to someone he addressed as 'Ah Shing' saying, in Hoklo:
18.When police duly attended the scene, D1 spoke to them saying that people were prepared to pour kerosene or petrol over themselves once the immigration officers started to take action. When asked how many were saying this, D1 replied:
19.There was a slight false alarm about five minutes before the incident reached it tragic conclusion. A number of immigration officers came into the room. Lam and D3, each holding a water bottle, stood up with D4. They sat down again when they realised they were not going to be removed. 20.About a minute before 6.00 pm, D1 moved to a seat which was closest to the door into the room. At about 6.00 pm, when the immigration officers moved in to evict the protesters, D1 was immediately taken out of the room. This was while a number of the claimants could be seen splashing liquid from their water containers. 21.Aside from the recordings of events in Room 1301, the prosecution also called evidence of words uttered by D1, between 5.30 and 5.45 pm, near the door and in the corridor just outside the room. It was not suggested that these words, which were directed at immigration officers, were audible inside the room or that they were said as any form of encouragement to the other protesters. Some examples of these utterances, heard by immigration officers at different times, were to the effect that:
22.The prosecution put D1 forward as the group's leader who had effectively orchestrated all the events leading up to the fire at 6.00 pm, having formed an agreement with the others which was ultimately put into effect when thinner was ignited. 23.Specific evidence relating to D2's involvement at the critical moment just before the fire started, was that he had been splashing liquid around as the immigration officers came in to evict his group. He splashed liquid towards the immigration officers and onto Lam. PW22 saw Leung Kam-kwong (the deceased named in Count 2) trying to stop D2 pouring the liquid. PW20 and PW21, in evidence which was strongly disputed, attributed the start of the fire to D2. The judge advised a cautious approach should be taken to this evidence having regard to a number of inaccuracies in the testimony of both witnesses. PW23 saw D2 holding a lighter during the afternoon. 24.As to D3, he was seen to have uncapped the bottle he had been holding when he sniffed its contents at 5.30 pm. He had a lighter tucked into his waist. During the afternoon, he had been seen to flick his lighter and to stare at the flame. At the time of the confrontation at 6.00 pm, D3 randomly splashed liquid from his bottle. 25.Similarly, D4 was seen to splash liquid towards immigration officers as they moved in to evict the occupants of the room. 26.The evidence against D5, that he was holding a bottle and poured some liquid from it, was solely derived from the video-tapes. 27.D6 was seen holding a bottle as he stood up and moved across the room at the time of the confrontation at 6.00 pm. 28.D7 was seen moving from his side seat in the room towards the middle of the room carrying a bottle. He was heard to say, in Cantonese:
29.Four days later, on 6 August 2000, D3 was interviewed at his request. This was video-recorded. He said that the thinner had been bought by Lam and that Lam had given him a bottle at the Immigration Department and had informed him what was in it. He said that he had twisted off the cap at about 5.00 pm and that he borrowed a lighter from someone. He stated that it had been D2 who had told them all to stand up, to hold up their bottles and to pour it over themselves. He blamed D2 for uttering threats designed to prevent any of the claimants leaving the room. During this interview, D3 gave inconsistent accounts about whether or not he had poured any liquid from his bottle giving, at different stages, both versions. Defence evidence 30.All the Appellants, with the exception of D1 and D7, gave evidence. In general, the defence amounted to an assertion that there was no intention to hurt anyone. The Appellants had merely acted in such a way as to prevent the immigration officers from ejecting them from the room they were occupying. 31.D2 said that Lam gave him a mineral water bottle at some time after 4.00 pm. This was half-filled with thinner. Lam told him that if immigration officers tried to evict them by force, they would pour thinner onto themselves and pretend to use their lighters to frighten the officers. D2 said that he had heard, only a few days before, that Lam had pretended to drink poison when it was, in fact, only coca-cola. He believed that the thinner would not be lit because Lam did not seem to be suicidal. Furthermore, Lam had gone to the trouble of extending his recognisance only that day which would have allowed him to remain in Hong Kong for the time being. His defence, therefore, amounted to an assertion that the liquid was only to be poured in order to frighten the immigration officers away but was not to be lit. He admitted that at 6.00 pm he had poured thinner over himself. When he saw Lam holding a lighter, he asked him not to light it. As immigration officers approached Lam, he saw fire erupting from the area near Lam's stomach and he then realised that Lam had taken his own life. D2 denied holding a lighter at any stage in Room 1301. 32.D3's defence was along similar lines. He, too, said that Lam had given him a bottle containing thinner at about 4.00 pm and was told by Lam that it was to be used as a threat to stop the eviction. At first, he thought Lam was joking but when he unscrewed the cap to his bottle at about 5.00 pm he then realised that the bottle actually contained thinner. He stated that he was given a lighter but that by the time of the fire, he had given it away. When he saw Lam's body on fire, he put down his bottle and ran out of the room. He said that he had not even removed the cap from the bottle. Regarding his interview, he stated that D1 had asked him to shift the blame onto D2 by alleging that D2 had uttered threats to stop people leaving the room. He also denied having said anything in his interview which amounted to an admission that he had poured liquid from his bottle. This was, he said, a misunderstanding arising from his accent when speaking in Punti dialect. 33.D4 said that he was passed a bottle of mineral water by someone sitting in front of him. He believed it contained only water. When he uncapped the bottle, he did not notice the smell of thinner. He heard a man in the room saying that a gesture should be made of pretending to pour liquid onto themselves if an attempt was made to evict them. He denied hearing any conversation about the use of thinner or suicide. He admitted that when the immigration officers came into the room, he had removed the cap from his bottle and held it up. He was pushed forward causing him, inadvertently, to splash water from his bottle. He said that he had no control over the jet of liquid which can be seen in the video-recording coming from his bottle. 34.D5 stated that he had brought his own bottle of water to the Immigration Department. He drank from it, and by 6.00 pm it was less than half full. His group in Room 1301 had agreed to D1 acting as their negotiator. When the immigration officers came in at 6.00 pm, he merely imitated what he saw others doing, by holding up his bottle of water to frighten the officers. He was jostled and the cap fell off his bottle. He did not notice the liquid coming out of his bottle which can be seen in the video-recording. 35.Finally, D6 in his testimony described how he came into possession of a mineral water bottle by saying that it belonged to a female claimant who had been sitting to his right. When she moved to the back of the room, she left her water behind together with some biscuits. He moved over to her seat and ate some of the biscuits. He was thirsty and drank some of the water. He then replaced the bottle on a bench. He originally made out that he did not touch the bottle again but when cross-examined about this in relation to his activity recorded on video-tape at 5.54 pm, he admitted that he had "fiddled" with the bottle, but he denied removing its cap. When the immigration officers came in at 6.00 pm, he said that he moved his position in order to avoid being arrested. He took the bottle with him because it still contained some water, but the cap on the top remained in position. He said that he had not heard anyone speak about splashing liquid or about lighters and he knew of no plan to cause a fire. The appeal D1's murder convictions 36.It is obvious that the background to the case provided a highly unusual scenario for allegations of murder. Not only were video-cameras openly being used to record the proceedings but D1 had, by his own actions, caused police to come to the scene by threatening that others were preparing to commit suicide. The allegation in Count 1, that the Appellants had murdered Lam was particularly curious bearing in mind that he was a supporter from their group of 'right of abode' claimants. This count, alleging Lam's murder, was somewhat artificial. 37.The prosecution's ill-advised inclusion of this count may, to an extent, explain some of the difficulties faced not only by the judge in this legally complex situation but by the jury also. Almost exactly a day after they had originally retired, the jury returned to court to ask three fundamentally important questions. The first of these related to the murder counts. They requested an elaboration on the definition of murder. The definition they were given was in these terms:
38.We were not persuaded by the argument advanced in ground 3 by Mr McCoy, SC, on D1's behalf, that this definition materially omitted reference to 'bodily' harm. Strictly, the definition should have done so, but in the circumstances, this was implicit. This could not, by any stretch of the imagination, have been taken, as Mr McCoy sought to argue, as a direction which left the jury with an option to convict D1 on the basis that "he intended that the acts of the others would cause really serious psychological or mental trauma, that is ... that the harm he intended could have been exclusively mental torture of the immigration officers." In any event, if the omission to refer to 'bodily' harm had been perceived to have damaged the defence in any way, we have little doubt that defence counsel, some of whom were highly experienced, would have sought a correction. None of them did so. 39.Turning to a matter of much greater significance, Mr McCoy submitted in his ninth ground of appeal that the jury's guilty verdicts on the murder counts against D1 alone were inconsistent with the prosecution's case of joint enterprise and inconsistent with the manslaughter verdicts returned against all the others with whom D1 was indicted. 40.The last part of the murder definition given to the jury on their return to court after a day's deliberations, touched upon the position of primary and secondary parties to murder. This is something to which we shall later need to return in greater detail. It suffices, at this stage to say that so far as D1 is concerned, he could only have been convicted of murder on the basis that he was a secondary party to the alleged murders. He was not a principal on the facts we have set out as he had not committed any act which caused either victim's death. For D1 to be convicted of murder, therefore, the prosecution had to prove that he had participated in a joint venture in the realisation that in the course of it the principal might use force with intent to kill or to cause grievous bodily harm, and that the principal had in fact killed with either one of such intents. This foundation is derived from the speeches in R v Powell and Anor; R v English [1999] 1 AC 1. Lord Steyn put the matter simply when, at p. 12, he said:
41.In the speech of Lord Hutton, at p. 26, a passage taken from Chan Wing-siu v R [1985] AC 168 at 172 was cited with approval which related in the first instance to a submission in that case which counsel for the Crown had made:
Sir Robin Cooke stated, at p. 177:
42.I do not need to dwell on D1's convictions for murder. They plainly cannot stand. The jury, by their verdicts of acquittal on both counts of murder against all the remaining Appellants, clearly did not find that anyone who might have been a principal in the killings had in fact acted with the necessary intent to establish murder. 43.When the summing up in the present case is looked at, with many issues of law to be covered, it is apparent that the judge had unfortunately omitted to tell the jury that if those who played a principal role in the events were all acquitted of murder, any secondary parties to the killing would inevitably also have to be acquitted. 44.Without a specific direction to this effect, it is easy to understand why the jury convicted D1 of murder. No doubt they would have had in mind what Mr McCoy rightly described as D1's "foul-mouthed threats" towards immigration officers just outside the room. This one important factor, regarding what may have been in D1's mind when carrying out his actions, placed him, evidentially, in a different category to all his co-defendants. 45.The acquittals for murder of the other Appellants meant that D1's participation, in the form of the encouragement he may have lent by his actions and presence in the room, was limited, at most, to manslaughter on which all the others were convicted. The question in these circumstances which needs to be decided is whether manslaughter convictions should be substituted for D1's murder convictions or whether, alternatively, there should be an order that he is retried on such charges. I shall consider this in conjunction with the other grounds raised by Mr McCoy and the arguments raised in the appeals against conviction of the remaining Appellants. Joint enterprise directions 46.Under Mr McCoy's fifth, sixth and thirteenth grounds of appeal, it was submitted that the judge had failed to direct the jury sufficiently as to "accessorial responsibility" on the part of D1. 47.It has been accepted in these proceedings that the trial judge's handling of the trial personified fairness throughout. The complaint in these grounds is that, inadvertently, the jury were never properly directed as to precisely what the prosecution had to prove in order to establish the role of D1 as an accessory, or secondary party, to these killings. Mr McCoy's argument was that if the jury had been considering manslaughter by an unlawful and dangerous act on the part of D1, as they should have been following their decision to acquit the principals in these killings of murder, the jury needed to have proper directions given to them as to what must be proved against D1 to make him an accessory to either or both of the killings. 48.It is perhaps helpful to set out at this stage what the summing up should have made clear to the jury was the focus of their concern on the manslaughter alternatives. This required a direction to the effect that if D2 (and/or others) unlawfully carried out the dangerous acts which killed the victims, but without the intent required for murder, then D2 (and/or others) would be guilty of manslaughter in each case. A direction along normal lines defining manslaughter would have to be provided followed by a direction to the effect that if one or more of the claimants in Room 1301 was found guilty of manslaughter, D1 (and/or others) would also be guilty of manslaughter if he intentionally encouraged one or more of the others to carry out the act which led to the deaths of the victims. 49.The directions on joint enterprise which the judge gave in his summing up were in these terms:
50.After this, the jury was given an example of "unforeseen consequences" arising in the course of an incident enabling the judge to make the point that:
51.Later in the summing up, the judge went on to make general references to the prosecution's allegation as a joint "plan" or "agreement". When D1's case was given specific attention in the summing up, the judge had the following to say:
52.Mr McCoy accepted that for people to have thinners in open bottles in circumstances such as those which prevailed at the scene was a foolhardy thing to do but, for D1 to be convicted of manslaughter, it had to be proved that he was a party to an act which encouraged the ignition of the thinners. He argued that as it was plain that D1 had not committed any act or acts as part of a joint plan or agreement with others towards igniting the thinners, the judge needed to specify on what basis D1 could be found guilty, yet nowhere did he do so. Mr McCoy submitted that when, at one point in the summing up, the judge said to the jury: "Was what happened what they intended to happen?", the judge had perhaps left the jury with the impression that proof of "intent" was a sufficient basis on which to convict D1. 53.As to this aspect, the judge went on to rehearse with the jury the evidence they had heard about D1's utterances to immigration officers in the corridor outside the room and what he could be heard on the video-tapes to have said inside the room. The jury were also reminded of something which Mr McNamara had said in his speech, on D1's behalf, to the effect that D1's actions in the room might have been designed either to act as a warning to the authorities or as a means of keeping up the spirits of the claimants, or both. 54.D1's actions in this context included organising the women in the room to sit at the back and the men to sit towards the front. So far as his spoken words were concerned, the judge said that these might suggest:
55.Pausing there, Mr McCoy suggested that by giving this direction, the jury may have been left with the impression that a plan by the claimants to set themselves on fire amounted to evidence of a joint enterprise. In the light of the judge's directions which followed, I do not, with respect, consider this submission to be right. The judge went on to say, with specific reference to D1's case:
56.After this, the jury were given further directions of relevance to murder before the judge said:
57.A little later, the judge directed the jury in the following terms:
58.After this, the judge gave further directions related to murder before stating that it was a matter for the jury to decide:
59.Turning later to the alternatives of manslaughter on Counts 1 and 2, the judge said:
60.Taking the numerous factors to which the judge had referred into account it was, in my opinion, abundantly plain that, whilst there were many references to "an agreement that flammable liquid be spilt and then lit" which read as if 'conspiracy' had been charged, the jury was being invited to decide whether D1 had in fact acted, by his words and his deeds, as a participant in the common design to ignite thinners in the event that immigration officers tried to evict them. Specifically, the judge had stated in the passage we have just cited that if D1's agreement only extended as far as the others holding up their bottles or emptying the liquid "without the liquid being lit", or that it may have done, D1 was entitled to be acquitted. He could only be convicted if he had, as the judge twice stated, acted "in concert" with the others. This was repeated a third time at the end of the summing up when the judge, with reference to each and every one of the Appellants said:
61.Mr Lawrence Lok, SC, on behalf of all the remaining Appellants, did not advance any of the grounds with which I have just dealt. This was doubtless because the judge went on to repeat, in each Appellant's case and on each count, directions on joint enterprise using a formula which was more or less the same for each Appellant on each count of homicide. These directions were helpfully coupled with the specific evidence against each of them and the salient points in their favour. In the case of each Appellant, on each count, the jury were directed to consider 'intent' judged by the actions of the individual they were considering, and to consider manslaughter in the event that a murderous intent had not been proved. Similarly, the jury were directed many times that the prosecution had to make them sure that Lam did not die by "his own hand", in which event all the Appellants were entitled to be acquitted. 62.The repetition of these directions was coupled with a direction in the form of a reminder of something, according to the judge, the jury had "been told", (presumably by counsel in their speeches), that the "mere presence of any of the accused is not enough" (Appeal bundle p. 53). It is true that the judge at no stage said that if D1's participation in the offences was to be established, the prosecution had to prove that his presence and/or actions were intended to lend encouragement to the common design. In all, however, the jury could not have been left in any doubt as against D1, or any other Appellant for that matter, that the prosecution had to prove against all of them, on the alternative counts of manslaughter, a joint enterprise or common design, judged by their actions and words, that thinners were to be spilt and ignited if an attempt was made to evict the protesters. 63.Accordingly, these grounds fail. May Lam's death have been suicide? 64.Whilst the verdicts clearly demonstrated that the jury were satisfied that Lam had not committed suicide, the next consideration was whether the jury were entitled to have concluded that Lam's death was not an act of suicide. 65.In the seventh, eighth and twelfth grounds of appeal, Mr McCoy submitted that the jury's verdicts were against the weight of the evidence in that there was a "real possibility" that Lam's death was suicide. If so, on the directions given by the judge, this ought to have ruled out guilty verdicts on any of the counts on the indictment including arson. Mr McCoy further contended that a direction given to the jury, to the effect that if D1 knew of a "plan by the protesters to set themselves on fire", might have seemed to the jury to have been sufficient to establish joint enterprise when, at most, it was evidence of complicity in another's suicide. In this regard, it was submitted that the judge had erred by omitting to leave the crime of complicity in another's suicide as an alternative to the homicide charges which he would have been entitled to do under the provisions of section 33B of the Offences against the Person Ordinance, Cap. 212. 66.The specific criticism that the judge may have allowed the jury to think that joint enterprise was established if D1 simply knew of a plan by one or more of the right of abode claimants to set themselves on fire was directed at a stage in the summing up where the judge had been drawing together the various strands of evidence in D1's case. In particular, he had taken the jury through the snatches of conversation directed by D1 towards immigration officers in the corridor outside Room 1301. The judge then reminded the jury of other conversation which had occurred inside the room. Amongst these "snippets", as the judge referred to them, D1 had been heard to speak on the telephone to someone he called 'Ah Shing', saying: "people up here fight at the expense of their lives. People down there leave." Then referring to 'item' points of reference in the tape transcripts, the judge went on to say:
67.Then, in the passage containing the direction which was criticised, the judge continued:
68.The judge's comment as to what these passages might "at the very least" suggest was a statement of the most obvious kind. However, as I have already indicated when dealing with the joint enterprise directions considered in previous appeal grounds, the judge had repeatedly made it clear to the jury that if Lam committed suicide or may have done so, D1 and all his co-defendants should be acquitted of both homicide alternatives. It could be said that this direction was more beneficial to the defence than it should have been as the further alternative suggested by Mr McCoy was never left to them to consider. There had been some evidence that suicide was possibly within the contemplation of the claimants in Room 1301 but, realistically, the jury had to decide on this issue whether the threat of suicide was merely being used, as the prosecution suggested, to keep the immigration officers at bay by frightening them into leaving the protesters alone. None of the Appellants had put forward a defence of complicity in suicide and it follows that none of them could conceivably have been prejudiced by the absence of a direction that they could convict of such an offence as an alternative to manslaughter. 69.One possibility which the jury no doubt considered was that the Appellants had misjudged the volatility of thinners when, in a split-second, the fire enveloped Lam. In any event, the issue relating to a possible act of suicide was left to the jury to decide. If the jury had taken the view that this tragedy had resulted from an act of suicide, all the Appellants would have been acquitted. I do not consider that the jury's rejection of Lam's death as an act of suicide was against the weight of the evidence. Manslaughter directions 70.Ground 1 was not pursued by Mr McCoy. The fourth of his grounds, in relation to the direction on intent, I have not had to consider in the light of my conclusion that the murder convictions must be quashed. If I had needed to consider this ground, I would not have found that it lent weight to this appeal. 71.The grounds which remain for consideration were advanced on behalf of all the Appellants. Mr McCoy submitted in his eleventh ground of appeal that the directions given to the jury were erroneous in that they did not deal with the requirement on the part of the prosecution to prove that the act leading to the death of the victims was intentional and either that it was, when viewed "subjectively or objectively", a dangerous act or an act which carried with it an appreciable risk of serious injury. Mr Lok's submission, under his first ground, made more or less the same points. This was confined to a criticism of the direction given to the jury when they returned on the second day of their deliberations to ask the judge to "elaborate" on the definition of manslaughter. 72.The direction which is usually given to a jury, in trials where manslaughter by an unlawful act has to be considered, is set out in the 'Specimen Directions' issued by the Judicial Studies Board. 73.In effect, a jury needs to be directed in cases of this kind that a killing will amount to manslaughter if it is the result of an unlawful act by a defendant where the unlawful act is one which all sober and reasonable people would inevitably realise must subject the victim to the risk of some harm, albeit not serious, whether the defendant realised this or not. The direction should continue, adopting the wording in the Specimen Directions:
74.This direction applies, of course, to a principal in manslaughter who is responsible for the act of killing. Other directions, with which I have already dealt, need to be given to cover accessories to the offence where joint enterprise is alleged. When dealing earlier with joint enterprise, I set out in full the judge's directions on manslaughter which included the following:
75.When the jury returned on 2 February 2002 requesting an elaboration on the definition of manslaughter, the judge gave the following direction to the jury:
76.It can readily be seen from the two definitions which the jury had been given that the 'Specimen Directions' for manslaughter by an unlawful act had not been followed. In particular, the jury were not told, in terms, that they had to be sure that the unlawful act had been committed "intentionally" or that the unlawful act was one which "all sober and reasonable people would realise must subject the victim to some harm". 77.This oversight on the judge's part was unfortunate but not necessarily fatal. The question which needs to be asked is whether, in the circumstances of this case, these were material omissions. Throughout the summing up, the judge had emphasised in D1's case that the prosecution had to prove that the group's actions amounted to the "fulfilment of a plan to which (D1) was a party" and that D1 was "acting in concert with others." These and other references were to the prosecution's central allegation that a flammable liquid was intended to be "spilt and lit". 78.Similar directions were given in respect of the other Appellants. It was plainly implicit in these directions that the act had not only to be unlawful but also intentional. 79.The same rather obvious point can be made about the complaint that the judge failed to direct the jury that the prosecution needed to prove not merely an unlawful act but one which all sober and reasonable people would realise must subject the victim to the risk of some harm. In my view, there can be few cases in which injury would so obviously flow from an unlawful act as from the facts disclosed in the present case. Several bottles containing thinners were being held up and spilled over people, and the ignition of that liquid could only realistically have led to harm being caused to others. For those Appellants (D4 to D7) against whom there was no conclusive evidence that they held bottles containing thinner, some of whose cases had been that liquid only came accidentally from the bottles they carried, the judge gave specific directions to take these issues into account. 80.The judge gave careful and individual attention to each of the Appellants when dealing with the salient points raised by them in their defence. In every case it was emphasised that the jury had to be sure that Lam was not killed "by his own hand" or "did not kill himself". Equally, in every case, the judge directed the jury that if they were not sure the defendant whose case they were considering had done the unlawful act himself or had been a party to it, they should acquit. Specifically, for each of the Appellants who had been identified as having held a bottle in the events at about 6.00 pm, the jury received a direction in more or less identical terms to this effect:
81.The judge reminded the jury that only in the cases of D2 and D3, apart from Lam, had there been direct evidence of anyone in the group possessing thinners. In the cases of D4, D5 and D6, each of them had said that they believed they had been holding a bottle which contained water. This evidence was summarised by the judge. D7, who did not testify, stood in a slightly special category in that not only was he holding a bottle as everyone, except D1, stood up when the immigration officers moved in to eject them from the room, but there was also the evidence that he had uttered the words: "Pour and light the fire." However, these words were not heard by PW3 who had been in a good position to have heard them, assuming they were said. Again, all these matters were fully and fairly summarised by the judge. 82.In all the circumstances, it is plain that whilst the judge's directions on manslaughter should have included precise words to indicate that the unlawful act had to be intentional and that it carried with it an appreciable risk, when viewed objectively, of harm being caused, these missing directions were implicit in everything which the judge had said. Accordingly, the omission was not, in my view, one which amounted to a material irregularity. Inaccuracies in video-tape transcripts 83.The next grounds, the tenth and second, put forward by Mr McCoy and Mr Lok respectively, related to the video-tapes recorded in Room 1301 and to the transcripts of what could be heard on these. It was submitted that as a result of the enhanced quality of the audio recordings subsequently achieved on digitalised video discs (DVDs), which were made during the course of a later trial involving the remaining fifteen protesters taken from Room 1301 on two charges of manslaughter and one charge of arson, additional words could be ascertained to those which could be heard on the inferior video-tapes. These, it was asserted, revealed material inaccuracies and omissions, exculpatory in nature, when compared to the evidence before the jury. It was submitted that if the jury in the present case had been able to consider the material now available, this may have led them to a different conclusion about the Appellants' activities and their intentions. 84.At the outset of these proceedings, we granted an application, which was unopposed, to introduce revised transcripts as further evidence under the terms of section 83V(2) of the Criminal Procedure Ordinance, Cap. 221. 85.The two issues of concern, when looking to see whether important evidence was denied to the jury were, firstly, the alleged intention of the participants that thinners would be ignited and, secondly, the extent to which suicide may have been contemplated. Both topics were before the jury but the question for us has been whether the new material might have made any real difference to the evidence upon which the jury were asked to rely in the court below. 86.Mr Lok concentrated in his written submission upon just one additional reference in the transcript (at p. 1130 in Exhibit CK-2a) which was admitted as fresh evidence. In the moments before the fire started, this transcript shows the following passages, spoken in Hoklo dialect and timed at about 5.56 pm, which did not appear in the version before the jury:
87.Similar words were to be found on a DVD recording of earlier events where, at about 5.29 pm (Exhibit CK-3a p. 1167), the fresh evidence showed an unknown male's voice as saying:
This was followed by an unknown female's voice saying:
After that, there were other unknown male voices saying:
88.However mixed in with these words, on the most recent transcripts, were words to the same effect, insofar as there was no need to set light, uttered by unknown males which were picked up from the video recordings on the original transcripts (Exhibit CK-3a p. 1167) including:
89.On the closely related issue of suicide, there were various references in the newly prepared transcripts which had not appeared in the original transcripts before the jury. However, these references also added very little to the material already before the jury as the threat of suicide had been recorded on the video tapes on a number of occasions. Mr McCoy referred to five passages in the recently amended transcripts between approximately 4.40 and 5.29 pm. The words, spoken by unknown persons in the room, were in these terms:
90.There then followed the passage at 5.29 pm with which I have already dealt in paragraph 87 above. 91.The jury were aware from the telephone call to the authorities which D1 had made at about 4.55 pm that the possibility of suicide had been mentioned. Afterwards, at 5.05 pm, when apparently addressing a police officer in uniform, D1 said:
92.A male responded:
93.There were other references to suicide with which I have already dealt. 94.It is apparent that the jury were fully aware of these issues and, in my view, the additional passages did not add materially to any of the matters already before them. These grounds, therefore, fail. Burden of proof direction 95.Mr McCoy's second ground of appeal, echoed in Mr Lok's third ground, complained that the judge had "erred in law by directing the jury that only evidence from an accused which the jury is 'sure is true' may be taken into account by it in deciding whether the prosecution case has been weakened or undermined by that defence evidence". 96.The passage which is criticized appeared early in the summing up where the judge was dealing with the burden of proof. He said:
97.This passage was, as Mr Arthur Luk, SC, on the Respondent's behalf, understandably described it, "unhappily worded", and it once again demonstrates the considerable danger inherent in the abandonment of a time-honoured direction in favour of a self-made formula which, although designed to be helpful, is less than clear. Save where an issue arises on which the defence shoulders the burden of proof, when a special direction will be required, juries have traditionally been directed as to the burden of proof in words to the effect that:-
98.Mr McCoy described the judge's direction on the burden of proof in the present case as "intrinsically confusing and uncertain". Whilst D1 did not give evidence, Mr McCoy asserted that such a direction might have affected the jury's approach to evidence favourable to D1 given by other co-defendants. In particular, he criticized the sentence, taken from the passage we have cited:
99.Mr McCoy stated that this unambiguously proclaimed to the jury the precise opposite of what was contained in the remainder of the direction on the burden of proof, particularly the phrase, relating to defence evidence, "what you are sure is true" which the jury could take into account when identifying "doubts in the prosecution case". He contended, therefore, that the jury would have been left with an overriding impression that only defence evidence which the jury were sure was true, would assist in pointing to weaknesses in the prosecution's case. He also referred to the judge's description of the defence evidence as "information" as having denigrated its status. 100.I have considerable doubt that a jury, hearing the passage about which particular complaint is made, would have understood what the judge was saying. If they did so, I think it is just as likely, if not more so, that the impression created in their minds would have been that the jury could look at the defence evidence as information which might assist them in finding doubts in the prosecution's case when looking at what they were sure was true in the case presented by the prosecution. 101.Whatever the case may be, Mr Luk pointed out that there was effectively nothing in the evidence given by any of the co-defendants which directly assisted D1. Furthermore, he submitted, that it must have been plain to the jury, that no defendant had to prove anything when the judge had immediately followed the direction which is criticized by saying that this burden "at all times" lay on the prosecution. Mr Luk submitted that the judge's meaning was clearly enough intended to convey the message that a defendant does not have to prove his innocence or, indeed, anything at all. 102.Despite my acceptance of counsel's criticism that these directions were somewhat muddled, I have concluded that they were not so unclear as to have amounted to a misdirection. Throughout the summing up, the judge repeatedly reminded the jury where the burden of proof lay. The jury, by the end, could not have laboured under any misapprehension. 103.I would, however, in the light of what has occurred in this case, wish, with respect, to remind those who are tasked with the responsibility of summing up to a jury, to have resort to the 'Specimen Directions' which have been specifically designed to deal with issues of law which are likely to arise in most criminal trials. Although many of the directions given to a jury will need to be adapted to the circumstances of the case being tried, the directions on the burden and standard of proof are intended to be, in view of their obvious importance, extremely straightforward and easy to understand. They do not usually require any adaptation or further amplification. 104.Mr Lok did not attach weight to this ground of appeal, describing its terms as "not fatal but unhappily phrased". However, it was a concern that whilst the summing up, taken as a whole, unmistakably reminded the jury where the burden of proof lay, there was a particular difficulty in respect of D3 which, although it was not specifically argued by Mr Lok, was directly related to this issue. 105.D3 had, as I have already said, made a statement to police at his own request. The judge directed the jury about their approach to the statement saying:
106.I can leave aside the judge's misdirection that D3's statement could only be used for or against him when plainly he had adopted most of it in his evidence. This caused no one any prejudice and, no doubt for this reason, it is not the subject of any complaint. 107.The judge then went on to deal in detail with the two disputed issues which arose on D3's evidence when compared to his statement. 108.Later the judge went on to direct the jury that:
109.After this, the jury were reminded of various pieces of evidence concerning D3 before the judge said:
110.These directions could well, in my opinion, have given the jury the impression that they had to decide which of D3's answers given at his interview were true before utilising any of the answers in his favour. The judge omitted to use the formula which is usually given in such circumstances that the jury could use such answers in his favour that were or may have been true. However, the judge's directions about how D3's statement should be approached have to be viewed also in the context of other directions given in D3's case. The judge summarized the salient parts of the prosecution and defence evidence relating to him and reminded the jury about the alternative verdicts open to them together with what had to be proved if they were to find him guilty of either murder or manslaughter. As to Counts 1 and 2, the jury was separately reminded that they had to be sure about the ingredients of the offences which the prosecution had set out to prove and that, in the final analysis, D3 should be acquitted:
111.I am satisfied that, taken in overall context, the burden of proof in D3's case would have been properly understood by the jury. 112.These grounds, therefore, fail. Arson 113.Although Mr McCoy submitted in his thirteenth ground that there was insufficient evidence against D1 of joint enterprise to convict him even of arson, I do not consider that this was a well-founded submission having regard to my earlier conclusions on this ground regarding joint enterprise. Conclusion 114.In the case of D1, for the reasons I have given, I am satisfied that his convictions for murder on Counts 1 and 2 cannot stand. However, contrary to Mr McCoy's invitation to this court to have the case sent back for re-trial on the charges of manslaughter, it appears to me that the jury must have been satisfied of facts which proved D1 guilty of manslaughter and, accordingly, pursuant to the provisions of section 83A of the Criminal Procedure Ordinance, Cap. 221, I consider that there should be a substitution, for the verdicts found by the jury, of verdicts of guilty of manslaughter on Counts 1 and 2. 115.In my opinion, the appeals by the remaining Appellants against their convictions for the two counts of manslaughter should be dismissed. 116.I consider, also, that the appeals by all the Appellants against conviction on Count 3, arson, should be dismissed. Hon Stock JA: 117.I have had the advantage of reading in draft the judgments of Stuart-Moore VP and Yeung JA. Whilst I agree with them that all applicants should be given leave to appeal against their convictions, and that the murder convictions in D1's case must be quashed, I respectfully otherwise disagree with them as to the proper disposition of these appeals. 118.I would allow the appeals of all the appellants upon each count of the indictment upon which they were convicted. I would not substitute verdicts of manslaughter in the case of D1. I would in respect of each appellant quash his convictions, and order each appellant (including D1) to be retried for manslaughter in relation to the deaths of Lam and Leung, and for arson. D1 and the murder convictions 119.I agree that the murder convictions of D1 cannot stand, but I must add to and comment upon the reasoning already provided in that particular regard, for these additional comments are relevant to other aspects of this appeal which I shall later address. 120.It is said at [37] above that it was the prosecution's ill-advised inclusion of a count of murder which may explain the difficulties faced by the judge and the jury - ill-advised particularly, it is said, because it was odd to have postulated the murder of Lam who was himself a party to the right of abode protests and on the side of the applicants. I do not think that this is an accurate assessment of the root of the jury's difficulties, and of the inconsistency between the murder verdicts in the case of D1, and the manslaughter verdicts in the case of the other applicants. It is important to recognise what those difficulties truly were, for that recognition impacts on much else. 121.The inclusion of a murder count was hardly curious, for it was the prosecutor's case, as expressed in the opening - such as it was - that all the applicants went to the Immigration Department on 2 August 2000 "for just one purpose ... to stage a violent protest by pouring thinner on persons inside the office and setting fire. By setting fire ... they must have intended to kill or to inflict very serious injuries on the people there." There was no suggestion in that opening of guilt of manslaughter by gross negligence, and the case was never left to the jury on such a footing. It was not suggested by the prosecutor that there was a suicide pact as, by reason of the provisions of section 5 of the Homicide Ordinance, Cap. 339, would give rise to the offence of manslaughter; and that too was never left to the jury as a basis for a manslaughter verdict. In his summary to this Court of the prosecution's case, Mr Luk SC, said:
It is noteworthy that the prosecutor did not specify, either to the jury or in that summary, the people whom they suggested it was intended to set alight, whether the protestors themselves, or the immigration officials; and the summing-up is noteworthy for the same rather important omission. One assumes, however, from the thrust of the case, that the assertion was of an intentional setting alight to immigration officials. That being so, it is difficult to see how the prosecutor could have justified an indictment which did not allege murder. By reason of the doctrine of transferred malice, the fact that one of the persons who died may not have been someone whom the attackers wished to die is irrelevant to the issue of culpability for the offence of murder. 122.Nonetheless, I tend to agree that the jury's conviction of D1 for the offences of murder, in the face of the acquittal of the other applicants of those charges, is attributable to the facts that:
Indeed, the summing-up had attached importance to the words D1 had used as evidence of his intentions. Yet, in contrast to the approach adopted in the case of the other appellants, the jury was not invited to address the question whether by his conduct he had actually participated in the acts which caused death. The judge, having instructed this jury time and again that it sufficed to constitute D1 guilty of murder if they were sure merely that he intended and had agreed that the contents of the bottles be spilled so as to kill or cause really serious bodily harm, then said this:
In the context of the preceding passages of the summing-up, the "matter" to be determined, to which reference is there made, must have been D1's intention. Since intention, according to the judge's directions, sufficed regardless of what intentional act of assistance or encouragement D1 may or may not have rendered, and since intention was evidenced by the words he used, it is not surprising that the jury convicted D1 of murder. 123.I agree, in the circumstances, that the murder verdicts in relation to counts 1 and 2 cannot stand. The Question of D1's participation 124.But my agreement is not founded upon the fact only that those verdicts were inconsistent with the acquittals of the others. In my judgment, those verdicts could not have withstood the directions which the judge gave as to what constituted the first appellant a party to whatever crime was committed. My conclusion in this regard carries over to the issue of manslaughter, (as well as arson). In my judgment, there were material misdirections in relation to participation in so far as D1 is concerned which, independently of my other misgivings about the directions and verdicts relating to the other appellants, render it impermissible to substitute in the case of D1 verdicts of manslaughter. 125.I note at [44] above the comment that the words used by D1 were important "regarding what may have been in D1's mind when carrying out his actions"; and at [45] the comment that "the acquittals for murder of the other appellants meant that D1's participation in the form of the encouragement he may have lent by his actions and presence in the room, was limited at most to manslaughter on which all the others were convicted." (My emphasis). Those comments are significant, for they illustrate the material lacuna in the directions in the case of D1. 126.I can fully appreciate the actions and the encouragement which my learned colleagues have in mind: the action of leadership; organizing the others to sit in certain positions which might render resistance to eviction more likely to succeed; encouragement by presence; and so on. But the fact is that it was for the jury to determine whether or not this appellant was or was not a participant in whatever criminal acts were perpetrated that afternoon at the Immigration Tower; whether D1 intentionally lent assistance to those acts. And what this jury was told as to what sufficed to prove him to have been a criminal participant was, in my respectful judgment, lacking in a material degree. 127.The jury was not told that intentional assistance by D1 was a condition precedent to guilt. They were not told that, if not physical action, then encouragement or some other form of intentional assistance was a condition precedent to guilt. They were not told what suggested actions on his part, or what suggested acts of encouragement by him, might render him a participant. They were not told in what circumstances, despite his absence from the room at the time the fire was started, he could nonetheless be a party to such crime as that ignition might represent. The directions, in their true effect, did not explain to the jury that mere intention did not suffice; that before D1 could be convicted of such offence as they might find was committed by the others, it had to be shown that he intentionally assisted the actual commission of that offence, by himself pouring liquid or lighting it or, if not that, then by encouraging the offence through words or conduct. This was particularly important in the case of D1 because it was common ground that he did not pour thinner; that he did not carry a lighter; that he did not light anything; that he was outside the room when the fatal act or acts took place; and that such threatening words as were used by him were uttered outside the hearing of the other applicants. And it is not just that no direction was given that some form of encouragement was a sine qua non of guilt, but the effect of the following comments and directions from the summing-up was to tell the jury, incorrectly, as it happens, that there was in fact no material evidence of encouragement or advice or instructions, and that that did not matter:
and then, immediately after those words at page 26, the following:
I say that this is a material misdirection. It cannot be that if this appellant took no physical part and offered no encouragement and no advice and no instructions, that he is nonetheless guilty of the substantive offence, whether murder or manslaughter or arson, by mere reason of some prior agreement. That there was evidence of encouragement by conduct is clear enough, and there was ample material upon which a jury could have decided that D1 intentionally assisted the others in the acts which followed. But, as I say, that was a question of fact which they had to address, and it was not left to them to address it. 128.I am conscious of the instances which my learned colleagues have emphasized in which the judge told the jury of the need to be sure that D1 was "acting in concert" with others (see [57] and [59] above); and I note their view that in reality the summing-up in its overall effect invited the jury to decide "whether D1 had in fact acted by his words and his deeds as participant in the common design to ignite thinners in the event that immigration officers tried to evict them" ([60] above). This is a matter of judgment as to the true effect of the summing-up, but it is not a judgment which I feel able to share. 129.Time and again, as I shall illustrate in the passages which follow, the judge told the jury that it sufficed to establish guilt on the part of D1 that he had been a party to an agreement and that he nurtured an intent for the agreement to be executed and, as we have seen, he told them in terms that D1 had taken no action, and that none was needed; that if guilt was to be established, it could only be because he was party to a culpable agreement. The fact that we find buried here and there, in the course of a necessarily long summing-up, references to "acting in concert" does not cure the defect; and I note that the judge did not even explain to the jury what in this case "acting in concert" meant. Since it was not, according to the judge, encouragement or advice or leadership, which he told them did not come into play, what then was it? 130.The passages I have in mind are these:
The emphasis in each paragraph above has been added. 131.These passages each represent comments made by the judge when dealing with D1. One notes that immediately upon turning to D2, in the very next paragraph of the summing-up at page 36, the judge says this:
We see here reference to acts and to death resulting from acts, a notable difference repeated in the case of each of the other defendants, from the directions given in the case of D1. Whether the jury appreciated the distinction and its significance, it is not possible to say. D1: Conclusion 132.For the reasons which I have provided, I do not see how it can reasonably be said that this jury was given an adequate direction on the law of participation as it affected D1, a matter of particular importance in his case given his absence from Room 1301 at the moment it was set ablaze; or, to put the matter more accurately, how it can reasonably be said that the directions as to what sufficed to prove guilt did not amount to material misdirections. One might add that the inconsistency of the jury's verdicts is perhaps a signal pointer to their lack of appreciation of the law which they ought to have applied; but that apart, I am not satisfied that D1 has been the beneficiary of a proper determination of the issues as they affect him. These misdirections affect all three counts upon which he was arraigned, and I would allow his appeal on all three counts, and order a retrial of D1 on an indictment alleging the manslaughter of Lam and Leung, and arson. D2 to D7: The manslaughter verdicts 133.There are several features of this case which give me cause for material concern in relation to the verdicts of manslaughter. They are:
(1) The directions as to manslaughter 134.On the facts of this case, on the evidence which emerged, there were several bases upon which a manslaughter verdict might have been justified:
The case was not left to the jury on either the second or the third premise. Indeed, as to the third, the judge told them that:
As is clear from the terms of the summing-up, the jury was invited to consider manslaughter on the basis only of an unlawful act. 135.There was, as we shall shortly see, an assumption that no matter the circumstances in which, or the end to which, or the purpose for which, thinner was spilled and lit, such an act was unlawful. I am of the view that that assumption - indeed, that direction - was not accurate. 136.The judge directed the jury that:
That was not correct. An accidental ignition resulting in death would not have been unlawful. More particularly in this case, since it may be said that the remainder of the summing-up by clear implication excluded accidental ignition (although the word "accident" never featured), an act of attempted suicide by any one or more of the applicants would also not have been unlawful, and would not have been rendered unlawful by the ensuing death of Lam or Leung. Suicide is not unlawful. It follows that attempted suicide, also, is not unlawful and
137.What the judge in this case did was to exclude a suicidal act or intention as a basis for murder (and manslaughter) in the case of Lam's own conduct only; and even then only in relation to count 1. So, for example, at page 32:
In the case of D2, we see this, specifically in relation to manslaughter:
And in relation to all these appellants, the judge said, at page 63:
(One notes that sometimes the word "splash" is used and sometimes (for example page 50E) the words "pour out"). 138.Those passages - and there are quite a number along the same lines - repeatedly:
139.It was in the circumstances of this case important, and incumbent upon the prosecutor, to identify the criminal act, and its appropriate mens rea, upon which it relied as the unlawful act, and then to prove it (see Smith & Hogan "Criminal Law", 9th ed., page 370); and it is noteworthy that the summing-up does not specify the crime which is said to be the unlawful act. What was not addressed was the end, the purpose, to which thinner was poured, (if deliberately poured), and what the ramifications were of each variant - whether in suggested resistance of eviction; whether self-immolation; whether assisting the suicide of another; or a pretence at suicide; or a mere act of gross negligence; or an assault on the immigration officers. In particular, the effect in law of an attempted suicide, or a pretended attempt, by the appellants, either as a group or individually ought to have been addressed, and the jury told in what circumstances such conduct justified, or did not justify, a manslaughter verdict, for it was not in every such circumstance that a verdict of manslaughter by unlawful act properly followed. Even a group decision that each individual should self-immolate was not in my judgment necessarily unlawful, since a suicide pact, which is unlawful, presupposes an agreement to kill another, not oneself; and complicity in another's suicide contemplated by section 33B of the Offences Against the Person Ordinance requires proof - which may have been easy to cull from the evidence - of at least counseling the commission of the act. 140.There was an evidential basis for a scenario of attempted, or a pretended attempt at, suicide by persons other than Lam. There was evidence that D2 splashed liquid onto himself. We see from the prosecutor's summary of the case that PW20 said that D2 splashed liquid on himself and that he saw a flame near D2's thumb. There was evidence from D3 that he poured liquid over himself. The comments made by D1, as well as comments heard on the tapes, are redolent with suggestions, or threats, of suicide. This jury was not directed to that issue in the specific terms that were required, and the direction that any act of spillage and ignition was an unlawful act was a misdirection. The fact that the appellants were convicted of arson is of no significance in this context, for an act of attempted, or a pretended attempted, suicide which goes wrong remains consistent with the direction, which we see at page 18 of the appeal bundle, that arson is committed by an act which creates an obvious risk that property will be destroyed by fire. 141.There is another aspect of the directions as to manslaughter which is addressed in the majority judgment, namely, the directions given on the second day of the jury's retirement, after they had submitted a note to the judge. Whilst questions from a jury after retirement are not unusual, the very fundamental nature of the questions posed in this case tend, I would suggest, to underscore my misgivings about the clarity of the summing-up in this very difficult case. I note that in the instructions which were given after the jury's note, the judge told the jury again that they "... need not be concerned with the word 'unlawful'." (page 71). Whatever other directions were given in the course of the summing-up which had ended the previous day, the jury on this occasion wrote down what the judge said. We see from the bundle, at page 70:
And we see also that both the judge and counsel were then concerned to ensure that each juror was thus supplied. So, thus armed the jury must also have written down the judge's definition of manslaughter:
142.That was not an adequate definition to a jury demonstrably anxious after one day's deliberation to know what it is that constituted the elements of an offence upon which they could properly return a guilty verdict. On the basis of the definition thus given, following an instruction, which had moments before been repeated, that any act of spillage and ignition was unlawful, a definition bereft of any reference to an intentional act, let alone to the act's potential for causing harm to third parties, the jury could do nothing else but return a guilty verdict. I do not in those circumstances think it right to permit these verdicts to stand. (2) The evidence on which to act 143.Stuart-Moore VP has at [98] above recited the passage which appears early in the summing-up in which the trial judge, having told the jury that an accused had nothing to prove, said that in giving evidence what a defendant was doing was:
It is said at [100] above that there is doubt that the jury would have understood what the judge was saying but that if they did understand it "the impression created in their minds could have been that the jury could look at the defence evidence as information which might assist in finding doubts in the prosecution case when looking at what they were sure was true in the case presented by the prosecution." (My emphasis). That, I suppose, is a possibility, but it is not what the judge said; and the problem is this, that in directing the jury as to its analytical task, the judge regularly exhorted the jury to reach its verdict based upon such evidence as was established to be true, an analytical method to be adopted equally to defence evidence as to evidence adduced by the prosecutor. If I am correct, that the judge more than once led the jury, or may well have led the jury, to believe that the evidence upon which they were to act was only evidence the truth of which was established to their satisfaction, what then were they to make of such a direction in their approach to defence evidence and its role in their ultimate task? More pertinently, how can this Court be confident that the jury has not taken the judge literally and discarded such defence evidence the truth of which was not established to the jury's satisfaction? It is suggested that since the judge has regularly used formulae to the effect that the jury could only convict if sure that an appellant did such and such an act, and to acquit if it may be the case that Lam committed suicide, or that no more than intimidation may have been intended, this cures any "unfortunate" impression created by suggestions that they could only act on defence evidence if established to be true. I do not, with respect, think that that is logical. If these fact finders were told to ignore such evidence as they could not be sure was true - and I think it is clear that they were told that - by what token or upon what evidence might they have given any weight to suggestions, for example, by some appellants that they thought that they were carrying mineral water; or to D4's contention that he told the officers to stand back; or to evidence that there was no intention to set fire? Might they not then have said to themselves that, not being sure about such suggestions, they were to look only to the undisputed fact that all but one bottle contained thinner, to the undisputed fact that flames were ignited, to the undisputed video evidence that thinner was thrown, and to the evidence of the witnesses who were officials, and then act only on such evidence? 144.In addition to the passage at page 5 of the bundle, I have in mind the following further passages. The emphasis in each instance is mine.
145.One notes throughout these passages the emphasis on acting on evidence which is shown to be true, with no distinction drawn between defence and prosecution evidence. I have not rehearsed the many passages of the summing-up in which the judge has told the jury not to convict unless sure of certain facts, or the passages in which he tells them to acquit if it may be the case that a defendant intended no more than to intimidate. In my judgment, they do not cure the impact, which at the least is uncertain, of the passages which I have highlighted, and which render it difficult to be assured that the jury's analytical approach to the evidence, and to the burden of proof, was correct. (3) The new evidence 146.I accept that the comments of the group, amongst whom the appellants were numbered, which were heard by the jury, on the video tapes, and the transcripts of which were provided, contained several references to suicide, although I do not agree, as is suggested in [85] above that suicide was properly put as an issue before the jury - a point which I have already developed. More relevantly, however, to the issue which I now wish to develop, I cannot agree that the additional words revealed by the enhanced recordings do not materially add to what was before the jury. 147.What was already before the jury were comments made as the afternoon of 2 August 2000 progressed, that suicide was threatened. There is however new material of which the appellants might, quite reasonably, have sought to make use, particularly:
148.The additional or new evidence which has impressed me as relevant to the appellants' defence is as follows:
The fact of the matter, as we now know, is that words to that precise effect were used, and were used immediately before the fire started. The words "Don't come over" were used, it appears, by a female; and we see also that a male did ask an officer not to snatch. We see this, which tends to support D4's evidence, from transcript P18, at items 34 to 37 inclusive:
All this is new evidence revealed by digital enhancement since trial. 149.These various passages were all, in my judgment, material to issues in the case and could reasonably have been used by defence counsel to support the case advanced by their clients. Whether in the event this new material would have made any difference to the result I cannot say. What I am not prepared to say, however, is that the effect of these 'new' passages was already before the jury or that if they had been presented, it would inevitably have made no impact. In short, I do not think it safe or proper to permit these verdicts to stand when the fact-finding body was deprived of the benefit of this material. Conclusion 150.The task presented for the purpose of summing-up in this case was as complex as one might envisage. It was a case in which there were no fewer than seven defendants. Some gave evidence; some did not. Each defendant offered a defence which was different. The events which lay at the core of the case were themselves complicated, spanning some hours and culminating in a confused and confusing finale, which presented a number of alternative scenarios as to what caused the conflagration and what the intent of the group and of individuals amongst the group might have been. Each variation had its own ramification in law. Any tribunal tasked with summing-up in such a situation will wish to avoid overcomplicating the directions given; whilst at the same time fulfilling the need to ensure that the alternatives are indeed covered, both as to fact and as to law. That is an enormously difficult exercise. In this case, that exercise was in my judgment made the more difficult by the prosecutor's opening. An opening is supposed to be an aid to a jury as well as to a judge. It is intended to set the scene and in a complex case such as this to specify precisely what the case is against each defendant, and how it is said that each defendant is rendered culpable. We see in this case an opening which suggested, quite unrealistically, that all the defendants went to the Immigration Department with a view to setting fire. The prosecutor did not say whether this was to set fire to the immigration officers; whether only in certain circumstances; whether possibly to commit suicide; and if so, in each instance, with what consequence; or whether to intimidate, and if so with what consequence. The judge's conduct of the trial was described by leading counsel in this appeal as the personification of fairness, as from the material we have seen it was clearly intended to be. With the benefit of hindsight and detailed scrutiny, we are now able to see that the failure adequately to identify those many issues has resulted in shortcomings which I have specified. In the event, and for the reasons I have given, I am unable to say that the verdicts were safe and satisfactory and, accordingly, I would allow the appeals, quash the convictions in relation to all the appellants, and order each to be retried for manslaughter in relation to the deaths of Lam and Leung, and for arson. Yeung JA: 151.To decide if the summing up by the judge is adequate, it must be borne in mind the nature of the prosecution case against the Appellants. 152.The prosecution case does not rest on any suggestion that the Appellants encouraged, advised or instructed others to commit the offences at or about the time when the offences were committed. The prosecution case is that the Appellants were acting in concert with one another. They committed the offences either on their own or did an act or acts as part of a joint plan or agreement with others to commit the offences. The judge referred to it in these terms:
153.The act or acts include, inter alia, abusing and threatening the Immigration Officers, carrying the bottles of thinner and/or lighters, uncapping bottles and splashing liquid around or encouraging others to do the same and flicking lighters to cause ignition. 154.If two or more people go out together in joint possession of items such as bottles of thinner and lighters and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to start a fire to cause fear in another, the contemplated act is unlawful. Bearing in mind the intention is to use the bottles of thinner and lighters in a confined and small area; the act must be a dangerous act. 155.The judge had given repeated direction on joint enterprise throughout the summing up as set out in the judgment of Stuart-Moore VP. 156.In relation to the arson charge, the judge directed the jury that an accused could only be guilty if he intended that a fire be lit either by himself or in agreement with others. 157.On each of the homicide charges, the judge used the same formula, namely "if an accused was a party to an agreement to set fire in the room, to spill flammable liquid but did not intend or may not have intended anyone to be killed or really seriously injured but that [the deceased] died as a result of that unlawful act, then the accused would be guilty of manslaughter". 158.The judge emphasized that if "an accused intended no more, or might have intended no more, or could have intended no more than to intimidate the officers by waving the bottle or even pouring out the liquid, but not by setting fire to it, had no intention or might have no intention that fire be started", then he should be acquitted. 159.On the background of the case, the direction by the judge is adequate and correct. 160.The jury must at least have found that the Appellants had started out on a joint enterprise which envisaged the starting of a fire in the office of the Immigration Department, albeit with a view to cause fright only. On such finding, convictions on the arson charge and on manslaughter on the homicide charges against each of the Appellants are inescapable. 161.I have the benefit of reading the draft judgment of Stuart-Moore VP with reference to each of the Appellants. I agree entirely with his conclusion and his reasoning. I too, would make the order he has set out. Stuart-Moore VP: 162.It follows from the judgments which are set out above that D1's convictions for murder on counts 1 and 2 are unanimously quashed and that by a majority, D1's murder convictions are substituted by verdicts of manslaughter and that his conviction for arson is upheld. Also by a majority, all the convictions of the remaining Appellants on counts 1 to 3 are upheld. 163.There remain for our consideration the applications for leave to appeal against sentence. Although, of course, D1 has not made such an application, we shall, at the same time, hear submissions on his behalf before deciding the sentence to be imposed in substitution for his life sentences on counts 1 and 2. In the meantime, he will remain in custody.
Representation: Mr Arthur Luk, SC, DDPP, Mr Alain Sham, SADPP & Ms Anna Lai, SGC, of the Department of Justice, for the Respondent. Mr Gerard McCoy, SC & Mr John McNamara, instructed by Messrs Knight & Ho, assigned by Director of Legal Aid, for D1/Appellant (re: Conviction). Mr Lawrence Lok, SC & Mr Edwin Choy Wai-bond, instructed by Messrs S.Y. Chu & Co., assigned by Director of Legal Aid, for D2-D7/Appellants (re: Conviction). |
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