The Queen v. Wong Bing-fai and Another

CACC000012/1983

BETWEEN

Coram: Huggins V.-P., Yang J.A. and Hooper J.

Date: 31st October, 1983.

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J U D G M E N T

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Yang J. A.:

1. During a family quarrel in the evening of 20th March 1982 an old lady Tang Lin was killed and her husband Wong Heung very seriously injured in a hut at Mount Davis. Their adopted son (the first appellant) and his teenage wife, then seven months pregnant (the second appellant), were convicted of murdering Tang Lin and wounding Wong Heung with intent. The first appellant now appeals against his conviction for murder and against his sentence of 12 years imprisonment for wounding. The second appellant appeals against her conviction in respect of the murder as well as wounding.

2. Mr. Payne, counsel for the appellants, has abandoned, in our view properly, the original grounds of appeal. Quite clearly, some of those grounds, and the unusually strong language in which these were couched, cannot be justified on a fair reading of the record and the summing-up. In the event Mr. Payne confines himself to the supplementary grounds of appeal.

The First Appellant's Appeal

3. Of the ten grounds of appeal against conviction, one ground, namely Ground 7, is withdrawn. Of the remaining nine grounds, seven are directed at particular aspects of the case, particularly the summing-up, and the last two grounds are general.

Ground 1 : The trial judge erred in his direction to jury on the inferences to be drawn.

4. The complaint here is that the judge failed to direct the jury that inference of a further fact to be drawn from primary facts must be a compelling and the only one. Mr. Payne was unable to cite any case where it had been held that a judge was required to do more than warn the jury that they must be satisfied of the defendant's guilt beyond all reasonable doubt. Indeed, McGreevy v. Director of Public Prosecutions 1973 1 W.L.R. 276 is to the contrary effect. That is not to say that an appellate court may not come to the conclusion that the evidence was not sufficiently compelling for an inference of guilt to be drawn so that a verdict is unsafe. Here a number of passages in the summing-up has been cited by way of particulars. Although these matters might more logically fall for consideration under Ground 10, we will deal with them now.

(1)    As to motive (pp. 5G-7J of the summing-up)

5. It is argued on behalf of the first appellant that the judge wrongly suggested a motive for both offences when (a) it was not necessary for the prosecution to prove motive and (b) in any event no evidence as to motive was adduced. In his summing-up, the judge said (at p.5G-K):

"   However, the Crown did, during the course of its cross-examination of the 1st accused, attempt to suggest that there may well have been a motive in this case. Now I conceive that the reason for the Crown doing this was largely to displace and to put in proper perspective the allegation made in the statements of the two accused that NG Yat-lai had been guilty of an indecent assault on the 2nd accused, and that this had formed the basis of the bone of contention between TANG Lin and the 2nd accused."

6. According to the defence, the relevance of the allegation about Ng Yat-Lai was this. The appellants had been living in the same hut as Tang Lin and Wong Heung after their marriage. Then the first appellant invited his friend Ng Yat-lai to stay in the hut. Ng, until his departure from the hut as a consequence of the allegation of indecent assault upon the second appellant, had been giving money to Tang Lin. His departure meant of course that no further payments would be paid, hence Tang Lin's displeasure. In order to rebut the appellants' statements, prosecution counsel cross-examined the first appellant at length about his financial affairs. The judge continued (at p.5L-O):

"    The Crown asserts that this story of NG Yat-lai is an absurd story that falls down under its own weight. It seeks also to establish a motive lest you pay too much attention to this and think that because there is no apparent motive that this must therefore be the motive. The Crown sought to show you that there could be - although it cannot prove it - there could be a very plausible motive in this case."

And then (at p.7E-J):

"    That, as I conceive it, members of the jury, is the reason why the Crown suggested to you the possible motive that the dispute that occurred on the night in question arose, not because of anything that might have happened concerning NG Yat-lai, but because of the financial, the desperate financial position that the 1st accused was in, and that this may well have all arisen out of one too many requests for money from TANG Lin. And that I think, members of the jury, is as far as you can take it."

7. In our view, the passages cited above could not fairly lead the jury to believe that they were being directed by the judge to form any particular view as to motive. The judge was simply saying that the prosecution's cross-examination was "largely to displace and to put in proper perspective" the allegation made in the statements. He pointed out to the jury that whilst the prosecution suggested a plausible motive, they could not prove it. The jury were not told that there was any motive, nor that the motive, if there be any, was connected with the first appellant's financial affairs. It is plain that the jury were told that the prosecution sought to rebut the Ng Yat-lai story by suggesting some other possible motive: they were not told that it was open to them to find the suggested motive proved but only that it was a possibility. And that was as far as the jury was permitted take it. The direction is in our judgment a proper direction.

8. Mr. Payne contends that the judge improperly directed the jury that the appellants' lies and a joint fabrication by the appellants could fairly lead to an inference of guilt. The appellants, it is said, had every reason to seek to hide what actually took place in the evening of the 20th March 1982, and the jury should have been so directed to say, as the judge did more than once, "that recourse to falsehood leads fairly to an inference of guilt" is too sweeping a proposition: not every liar is a criminal, let alone guilty of a particular crime alleged against him. At p.28D-R of the summing-up, the judge said:

"    If, however, you come to the conclusion that these statements are the product of a pre-arranged story jointly concocted by the two accused, it is then open to you to infer that this joint fabrication is indicative of a consciousness of guilt on the part of both accused. Resort to falsehood might fairly lead to an inference of guilt. But in deciding whether a finding of joint fabrication, if such you do find, is indicative of guilt, you must consider whether there might be some other reasonably possible explanation for their fabrication.

Mr. Payne suggested that the 1st accused has been trying to protect the 2nd accused. Mr. Dinan says that the 2nd accused has been trying to protect the 1st accused. Does this explain this matter?

Sometimes people lie out of a sense of sheer panic. A person may feel that although he or she or some other person is entirely innocent of any wrong doing, the surrounding circumstances of the case are such as to create an entirely false impression of his or her or that other person's guilt and that therefore in a desperate attempt to restore the balance he or she tells a false story in order to put the matter in a proper perspective. A person may lie either to shield himself or another such as his spouse from injustice and you have to bear that consideration in mind. Thus, whether the fabrications, if such they be, lead to an inference of guilt is eminently a matter for you to decide after a consideration of all the evidence in the case."

9. That was a perfectly proper direction (Mawaz Khan v. Reg. 1967 1 All E.R. 80) and we think that the summing-up, whilst indicating that lies might, if explained, justify an inference of consciousness of guilt, never suggested that the telling of lies was, by itself, evidence from which guilt could be inferred. There was ample other evidence which, if believed, pointed to the guilt of the appellants. The judge alerted the jury to the suggestions of both defence counsel and left it to the jury to draw their own conclusions. We do not think he was required to do any more.

(3)    Inferences to be drawn from Wong Heung's evidence and the appellants' minor injuries (pp. 18A-19E of the summing-up).

10. The contention here is that the judge indulged in a new theory which had not been canvassed before. Wong Heung's evidence was that almost as soon as he heard Tang Lin's groans in the next room, he himself was savagely attacked by the appellants with weapons. Much of that part of the summing-up dealt with the second appellant. It had been suggested that the second appellant's attack on Wong Heung indicated that she must have been actively involved in the attack on Tang Lin as well. The judge said (at p.18A-L):

"    So the Crown says that not only is there the evidence of the two different types of weapons having been used on TANG Lin, but there is the evidence of WONG Heung that after he had heard his wife's groans he was savagely attacked by both the accused. If WONG Heung's evidence is true, the suggestion is that this gives rise to the possibility that before the attack on him the 2nd accused was actively engaged in an attack on TANG Lin. If she had not attacked or assisted in the attack on TANG Lin, do you think she would have attacked WONG Heung in that manner? That is the inference the Crown draws from the evidence of WONG Heung.

The Crown readily admits that WONG Heung was not in the front room at the time when the injuries were inflicted on TANG Lin and therefore is not in a position to say what happened in there. But the Crown says surely the 2nd accused must have been involved, actively involved, in the attack on TANG Lin because her subsequent actions in relation to WONG Heung show her state of mind and indicate what had happened previously."

The judge's approach seems to us to accord with common sense. The undisputed evidence was that Tang Lin received her injuries in the television room immediately before the attack upon Wong Heung in the rear bedroom. The jury was therefore entitled to use their common sense to come to a conclusion as to what the second appellant's state of mind was as regards Tang Lin by reference to her subsequent attack upon Wong Heung.

11. The first appellant suffered three cuts to his right hand and the second appellant suffered a minor injury to the web between her thumb and fore finger. Referring to those injuries the judge said (pp. 180-19E):

"    Now, members of the jury, one does not need scientific evidence to draw certain reasonable deductions. You are entitled to draw such inferences from the evidence as fairly arise from it. You may think that it doesn't require a great deal of imagination to realise that if TANG Lin had been attacked with a weapon or weapons, that she would have frantically attempted to ward off the blows with her hands.

Do you think that if the two accused had attacked her with weapons that in the wild flailing of arms, both accused might have inflicted minor injuries on each other's hands? If, aimed at one person, their blows must have been delivered within a narrow compass. It might possibly suggest to you an explanation for these injuries if you were to accept the possibility that both of them were attacking TANG Lin at the same time."

Again, the jury was perfectly entitled to use their common sense and knowledge of human affairs to draw obvious inferences.

12. The two possibilities mentioned in those passages are not new theories brought up by the judge himself, but are the kind of possibilities which reasonably intelligent men, endowed with the usual common sense, will be entitled to accept.

Ground 2 : The trial judge wrongly directed the jury that there was a plausible motive.

13. This ground has been covered under Ground 1 under the sub-heading of Motive. We did not feel it necessary to invite Mr. Lucas, counsel for the Crown, to address us on this issue.

14. The first appellant's case was that he had killed Tang Lin on provocation. In his summing-up, the judge dealt with the issue of provocation with great care (pp. 14H-16Q); in particular he said (at p. 14K-N):

"    It is not a full defence. Self-defence, if it is not negatived by the Crown, results in a complete acquittal. On the other hand, provocation is a partial defence because if the Crown does not succeed in negativing it then, provided you are satisfied beyond reasonable doubt that the accused had the necessary mental intent in causing the death of the deceased, then you will find the accused guilty of manslaughter."

15. We apprehend that the judge described provocation as a "partial defence" in the sense that even if successful it would not result in a complete acquittal but in a conviction of the lesser offence of manslaughter. In clear terms he stated that it was for the prosecution to negative provocation. This direction is in our view sufficient. Coupled with the earlier direction on the prosecution's burden of proof, the matter is put beyond a shadow of a doubt. On this ground too, Mr. Lucas was not invited to address this Court.

16. In his final address to the jury, Mr. Plowman said:

"Now it is important to remember that insofar as that 1st charge is concerned, the 1st charge of murder, WONG Heung's evidence does not really assist you to any great extent. Whether you prefer WONG Heung's version of the struggle as he puts it - the 1st accused's version, rather, of the struggle, or WONG Heung's version as to the chopping of him by the 1st accused really only assists you on the wounding charge. In many ways it might well be said that the protracted cross-examination of WONG Heung was a red herring vis-a-vis that main charge of murder. I ask you not to allow those issues, vis-a-vis what happened in the fight with WONG Heung, to distract you when you are considering the main issue, namely, whether or not these two accused were responsible for the murder of TANG Lin."

17. There counsel was referring not so much to the fact that Wong Heung had said he was attacked by the appellants as to the details of that attack. If there was an attack on Wong Heung by the appellants at all, it was clearly some evidence, although not conclusive evidence, that they were responsible for the attack on Tang Lin moments before. Thus the judge in his summing-up said (at p.18A-H supra) that Wong Heung's evidence, if accepted as true, might give rise to the possibility that before the attack upon him the second appellant was actively engaged in an attack on Tang Lin. He said (at p.18G):

"If she had not attacked or assisted in the attack on Tang Lin, do you think she would have attacked Wong Heung in that manner? That is the inference the Crown draws from the evidence of Wong Heung."

He went on to say (pp. 19S-20I):

"    The Crown places reliance on the credibility of WONG Heung. If, as has been suggested, he has fabricated a case against the two accused because of his indignation on finding out that his wife had been killed, you may legitimately ask yourself, members of the jury, why didn't he really sew up the murder charge against the two accused by saying that on hearing a disturbance in the front room, he went forward to investigate and he saw both accused viciously attacking his wife with weapons? He said nothing to that effect. If he had been enraged over his wife's death and sought vengeance against the two accused for it to the extent that he was prepared to fabricate evidence against them, do you not wonder why he failed to fabricate a story as to the circumstances of her death? That is a matter which you will have to take into consideration in determining what weight you attach to his evidence."

18. Mr. Lucas contends that even without Wong Heung's evidence the first appellant could be convicted of murder. There was of course his cautioned statement in which he admitted to killing Tang Lin. As to the second appellant, there was a series of lies in her statements to the police, the joint concoction with the first appellant and the evidence that two different weapons were used on each of the two victims. From this evidence, the inference could properly be drawn that the second appellant was guilty of murdering Tang Lin. In so far as Wong Heung's evidence was in existence and believed by the jury, it shows that immediately after the attack on Tang Lin, there was a joint attack on Wong Heung, and from that, an inference could be drawn as to the mind of the second appellant at that time and also (given a proper direction to the jury) immediately prior to that attack within the context of an attack on Tang Lin. The Crown's stand, Mr. Lucas submits, is that Mr. Plowman did not concede that Wong Heung's evidence was of value in respect of the wounding charge only.

19. It is debatable whether Mr. Plowman did concede that Wong Heung's evidence was of no value to the murder charge. If he did not make the concession, then there can be no question that the judge's direction was correct. What is the position if there had been such a concession?

20. If there was a concession, the concession had been wrongly made. Neither counsel for the defence nor the judge was bound by such a concession, which amounted to no more than prosecution counsel's own view on the evidence. Mr. Payne suggested that the defence was misled in that, having heard counsel for the Crown make what was understood to be a concession, the defence did not try to persuade the jury that Wong Heung's evidence in fact was of no assistance to the prosecution on the murder charge. The so-called "concession" was not a concession as to a simple fact but as to the implications of the evidence which had been given. Where a judge disagrees with the manner in which the prosecution has presented its case it is usually desirable that he should so inform counsel before counsel for the defence addresses the jury, unless the matter is of minor importance. He is no more bound by counsel's view of the facts than he is bound by counsel's submission on a question of law, but fairness requires that the defence shall not be taken by surprise. Here the view adopted by the judge was one which was obviously open. We do not think that his failure to notify counsel was a material irregularity. The present situation is not analogous to a summing-up in which the judge for the first time brings forward an entirely new theory which has not been canvassed before.

21. This case can be distinguished from the cases of R. v. Halverson (1979) Law Society's Weekly Gazette p.209 referred to in Raymond Lau Gai Cheung (Criminal Appeal No. 140 of 1980). Both cases were relied on by Mr. Payne for the appellants in this context.

22. In Halverson's Case the Judge suggested the possibility that the appellant had committed the offences alone whereas it had been the Crown case that she had committed them together with her husband. That case was in any event an obvious case for holding that the verdict was unsafe and unsatisfactory because there were inconsistent verdicts. However the report, which is a very brief one, revealed that the gravamen of the appeal was that the judge had presented a way of considering the facts which had not been put by the prosecution and which the defence had had no opportunity to meet.

23. This case was followed in the Court of Appeal in Hong Kong in Raymond Lau Gai Cheung v. The Queen where convictions in the District Court were quashed on the new theory principle. There the District Judge had found in his judgment that the appellant had committed the offences together with a prosecution witness when it was the Crown case that he committed them alone.

24. In the present case no such new theory was suggested. All the judge did, and in our opinion quite properly, was to refer the jury to the primary facts from which an obvious inference could be drawn.

Mr. Payne agrees that the ground should be dealt with under Ground 10 (infra).

25. On the 7th April 1982 whilst still in hospital Wong Heung gave a statement to the police which all the parties accepted was untrue (whether he then appreciated its untruth or not), for in it he exculpated both appellants and denied knowledge of anything. On the 22nd April, shortly after his discharge from hospital he gave a statement to the police where he first said he saw the appellants each holding a hammer or an iron bar but later said that he did not see what kind of hard objects they attacked him with. On the 26th April, he made a statement to the police sergeant at the Forensic Laboratory, where he selected from a display of five weapons an axe and a chopper and said that the first appellant had used the axe and the second appellant had used the chopper to attack him. His evidence at the trial was consistent with this last statement.

26. In this connection it is necessary to quote the judge's summing-up at length (p.22D-235):

"    Now, what WONG Heung told the sergeant at the Forensic Laboratory about the axe and the chopper may not be used by you as proof of the truth of what he told the sergeant. It can only be used by you to determine whether, since his return home from hospital, WONG Heung had fabricated his account that the 1st accused had attacked him with an axe and the 2nd accused had attacked him with a chopper.

Now the defence alleges not only that WONG Heung has lied at all times about this incident in so far as he has implicated the 1st and 2nd accused in the commission of any crime but that he has recently invented the allegation that he made in his evidence in court that the 1st accused had attacked him with an axe and the 2nd accused had attacked him with a chopper.

As to this latter allegation of recent invention, the defence relies on the statement that WONG Heung made to the police on the 22nd of April in which he said that the 1st and 2nd accused were both armed with hard objects that looked like either iron hammers or iron bars and that he also said that he did not see what hard objects they attacked him with. Now I've mentioned that twice, members of the jury, because that is an important aspect of the defence case.

Now the evidence of what WONG Heung told the sergeant in the Forensic Laboratory on the 26th of April, four days after he made that statement of the 22nd of April, is before you solely for the purpose of enabling you to determine whether WONG Heung's evidence in court is a recent concoction or whether when he made the statement on the 22nd of April, he was suffering from a lapse of memory or from confusion.

You will recall that WONG Heung had difficulty in even remembering whether he had made a statement to the police at his home or at the CID office and he could not recall ever having gone to the Forensic Laboratory to identify the weapons used.

In this connection, members of the jury, seeing that he had positively stated in the Laboratory that the weapons were used by the two accused, you may think that his failure to even remember that incident might be consistent with his allegation that he was suffering from lapses of memory and from confusion. That is a matter which you must bear in mind.

In this court, he insisted that he had told the police that the 1st accused had used the axe and the 2nd accused had used the chopper to attack him and in the course of his evidence, he complained that he had suffered loss of memory and of confusion of thought since he had suffered the, no doubt, terrible injuries that he had in fact sustained in this incident. It is for you to decide, members of the jury, having regard to the time when and the circumstances in which his statement to the sergeant in the Forensic Laboratory was made, whether it rationally tends to answer the allegation that his evidence in this court was recently invented.

Now, it is true that the defence did not pinpoint the time when WONG Heung allegedly concocted his evidence that the 1st accused had attacked him with an axe and that the 2nd accused had attacked him with a chopper. They merely alleged that at some time since his statement on the 22nd of April, he has concocted these two particular allegations."

And then (p.24K-Q):

"    Now I repeat, the evidence of what WONG Heung told the sergeant in the laboratory is not evidence that tends to prove that the 1st accused attacked WONG Heung with an axe or that the 2nd accused attacked WONG Heung with a chopper. It is evidence that can be used only to rebut the allegation that his testimony in court as to the nature of the weapons held by the 1st and 2nd accused is a belated concoction and is not due to a lapse of memory or to mental confusion suffered as a consequence of the injuries that he sustained and the distress that he must have suffered as a consequence of his wife's death."

27. Mr. Payne stressed that he had made it quite clear to the judge that he simply attacked Wong Heung's evidence as being untrue, and not as a recent invention. Before us Mr. Payne began by submitting that the evidence as to Wong Heung's statement at the laboratory was admissible (if at all) only on the basis that it would tend to negative any allegation of fabrication of his evidence that the defendants had attacked him with an axe and a chopper, and (counsel said) no such allegation of fabrication was being made. Subsequently it was conceded that there was in the argument an implicit allegation of fabrication after the statement of 22nd April and the burden of the contention now is that evidence of a statement consistent with the witness's evidence in court was not admissible unless the consistent statement was made before the statement of 22nd April, because only then would it in truth tend to negative fabrication "recent" fabrication would include fabrication between 22nd April and 26th April. Mr. Payne contended that whilst hearsay evidence may be legitimately admitted to rebut an allegation of recent invention, the judge has used the evidence to rehabilitate the credibility of Wong Heung's evidence. It should be noted here that the appellants accepted that Wong Heung's statement of the 22nd April was true.

28. The authorities show that two conditions must be fulfilled before a previous consistent statement can become admissible: (1) that on a fair consideration of the case so far presented it can be deduced that an imputation of recent invention is being made against the witness; (2) that the consistent statement was made at such a time that it tends to negative the allegation of fabrication.

29. Two of us think the first condition was fulfilled in the present case. In Reg. v. Coll (1889) 24 L.R.Ir. 522 Holmes J. said at p.541:

"Even if the impeachment takes the form of showing a contradiction or inconsistency between the evidence given at the trial and something said by the witness on a former occasion, it does not follow that the way is open for proof of other statements made by him for the purpose of sustaining his credit. There must be something either in the nature of the inconsistent statement, or in the use made of it by the cross examiner, to enable such evidence to be given."

That passage was adopted by the Court of Appeal (Criminal Division) in Oyesiku (1971) 56 Cr.App.R. 240, where counsel conceded that the "something" was present, namely an innuendo that the witness's evidence was a late invention. Holmes, J.'s reservation doubtless contemplated a case where the mere cross-examination on a previous inconsistent statement might suggest faulty memory rather than deliberate fabrication.

30. Generally speaking, of course, an earlier statement is not admissible as confirmatory evidence. If in cross-examination, a witness's account of some incident or set of facts is challenged as being a recent invention, thus presenting a clear issue as to whether at some previous time he has said or thought what he is now saying at the trial, he may support himself by evidence of earlier statements by him to the same effect (per Lord Radcliffe in Fox v. General Medical Council (1960) 1 W.L.R. 1017, at 1025).

31. However, it may not always be easy for a trial judge to ascertain whether counsel is alleging recent invention. The difficulty was envisaged by Dixon C.J. in the Australian case of The Nominal Defendant v. Clements (1960) 104 C.L.R. 476, where he said (at p.480):

"It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness's account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course. That is one reason why the trial judge's opinion has a peculiar importance.

In the present case counsel for the Nominal Defendant disclaimed any attack on the honesty of the plaintiff's account of the accident. But although upon the evidence as recorded it is difficult to feel assured that a foundation had been laid for an attack upon the boy's story as a late reconstruction it was, I think, fairly open to the judge at the trial to conclude that the defendant would set up a case that the plaintiff's story was the result of the father's coaching and represented no antecedent memory of the events, and that is perhaps enough."

Dealing with the same difficulty, McTiernan J. said (at p.481):

"In my opinion, the statement was receivable in evidence not as proof of the fact which it mentions, but to re-establish the plaintiff's credit. At the trial, counsel for the defendant disavowed that he intended to charge that the plaintiff's evidence that he was standing still when run over was an invention and that the only purpose of the cross-examination as to credit was to test the plaintiff's recollection and to show, if he could, that the plaintiff's father was endeavouring only to refresh it. But reading the transcript, the cross-examination seems to me to have gone further and to have suggested that the plaintiff's father did implaint in the plaintiff the crucial idea that he was standing still when run over, not merely that he helped the plaintiff to recollect that fact. It may be that it is a fine point, which view of the cross-examination is the correct one. I think the cross-examination is reasonably capable of the inference which I have drawn from it."

32. Menzies J. in his judgment reviewed the authorities and at page 490 had this to say:

"Finally in Franklin v. Victorian Railways Commissioners (unreported) Sholl J. adhered to the view which he had expressed in Woodward v. Shea that it is sufficient to render admissible in re-examination a prior statement consistent with the witness's testimony if the cross-examination may reasonably have been taken by the jury or by one or more of them to suggest recent invention. Herring C.J. and Gavan Duffy J. having referred to Woodward v. Shea, adopted the proposition `that a former statement made by a witness is generally inadmissible to re-establish his credit when impeached by proof of a previous contradictory statement except when the witness is charged with having recently fabricated the story', which, as I indicated earlier, draws what I regard as a correct and important distinction between merely proving a previous contradictory statement and going further to impeach the witness's evidence as a fabrication.

This review of the authorities does establish the rule which the learned judge applied in admitting the plaintiff's statement of 1st July 1954. It seems to me that in some of the cases to which I have referred, the rule is too widely stated or the evidence admitted went beyond what a strict application of the true rule would authorize. I regard evidence of an earlier consistent statement as admissible in accordance with this exception only when the Court itself considers that the evidence of a witness has been impeached as a later contrivance and this has been done by the opposite party in the conduct of the case, whether by the cross-examination of the witness, or by eliciting evidence of the fabrication from another witness, or in some other positive way."

33. Although Mr. Payne asserted before the judge and before us that he was not alleging recent invention but merely that the witness had made a previous inconsistent statement, Macdougall, J. was clearly of the view that the cross-examination was likely to impress the jury as an attempt to get from the witness that what he had said in his evidence was a fabrication and not what he himself recollected. The question remains whether the judge was entitled to form the view he did. Two of us are of the view that he was; the other that he was not.

34. This however is not the end of the matter. In Nominal Defendant v. Clements (supra) Dixon, C.J. said at p.480 that the statement sought to be put in must be such "that having regard to the time and circumstances in which it was made it rationally tends to answer the attack". In the ordinary case where a witness has made two previous statements one of which is consistent with his evidence and one inconsistent, it seems to us that cross-examination as to the inconsistent statement will let in evidence of the consistent statement if, but only if, the consistent statement antedates the inconsistent statement. It is purposeless to negative "recent" fabrication if the possibility of not-so-recent fabrication is still wide open. So, where some particular event or circumstance is advanced as the reason for a change of story, there must be evidence of a consistent statement made before that event or circumstance could have had any effect on the witness's testimony. That is not the case here. However, as we understand it, what is in part suggested is that the statement of 26th April consistent with the evidence in court tends to negative fabrication because the witness's mind was in a state of confusion after the attack on him and he was only gradually piecing together his recollection of what had happened. That seems to have been the approach of the judge when he said at p.157 (lines 17 to 21):

"But it may be relevant to indicate the state of the man's mind. He said that he was in a muddled state. He said he can't recall many things. All the Crown is seeking to do is to explain the apparent discrepancy. ..... The Crown is saying, `No, it is not an invention because at a much earlier stage at or about the time that he made the statement he identified these very objects as being the objects which he has now testified to in court as being the objects which the two accused used on him'."

The alleged offences occurred on 20th March. The first statement was not made until 7th April and there was then a gap of 15 days before the second statement, whilst there was a further gap of four days before the statement at the laboratory. The judge expressly invited the jury to consider whether, when Wong Heung made the second statement, "he was suffering from a lapse of memory or from confusion". There was no medical evidence to support a suggestion that the witness has lost his memory and that it was gradually returning. His own evidence suggests, on the contrary, that he deliberately withheld mention of the appellants until he knew that Tang Lin was dead. The difficulty then is that he could not describe the weapons on the 22nd April and that the statement at the laboratory (which is the one in question where he did describe the weapons) does not rationally tend to answer the contention that the evidence given in court was a fabrication. We therefore all incline to the view that the evidence objected to was not within the narrow confines of any exception to the rule that previous consistent statements are inadmissible.

35. It is however submitted that we can apply the proviso. Mr. Payne argues that Wong Heung was a crucial witness (as, indeed, he was) and that the fact that the jury returned to ask if it might "see any statement by Wong Heung" shows that there was doubt whether he should be believed. The Foreman indicated that the reason for the inquiry was that the jury thought there had been an oversight in not supplying it with a copy of the statements and we are not persuaded that the inquiry indicates any doubt in the minds of the jury. Given a very careful direction as to the purpose for which the statement was admitted, it is unlikely that the wrongful admission in evidence of the statement of 26th April could have had any prejudicial effect on the jury's assessment of the credibility of Wong Heung: its consistency with his evidence in court was offset by its lack of consistency with the statement of 22nd April. It cannot have had a decisive effect upon the jury's verdict and we would apply the proviso:

Ground 7

36. As has been indicated, this ground was abandoned.

37. We cannot see what else the judge could have said. The statements were before the jury and such passages as might exonerate the accused could not have escaped the jury's attention. We deprecate the emotive description of this part of the summing-up by reference to the phrase "cavalier manner" which terminology we find unhelpful.

Ground 9 : The learned judge never put the first appellant's case fairly to the jury.

38. Mr. Payne sought to argue that because of the judge's error in Ground 8 the first appellant's case was not fairly put. In our view there are no merits in this ground.

Ground 10 : The verdicts were unsafe and unsatisfactory.

39. Whilst not saying that the appellants had no case to answer on the charge of murder, Mr. Payne did argue that the verdicts were unsafe and unsatisfactory. Under this heading he also relies on Ground 5 relating to Wong Heung's credibility.

40. We have considered Mr. Payne's arguments as well as Wong Heung's evidence and the summing-up. In our judgment there is no substance in his complaints.

The Second Appellant's Appeal

41. The second appellant did not give evidence but relied on her cautioned statements and the evidence of the first appellant.

Ground 1 : This ground is similar to the first appellant's Ground 1.

42. Our judgment is therefore the same.

Ground 2 : The trial judge's direction on joint enterprise was wrong. (p.8F-S)

43. This direction is related to the charge of murder. The prosecution's case was that the second appellant wilfully assisted the first appellant in killing Tang Lin. The judge said (at p.8L-S):

"    Of course, assistance may be rendered in any one of many ways. The assistor might, for example, restrain or hinder the victim in some way or create a diversion so as to enable the other person to strike at him. The ways in which assistance can be given are limited only by your imagination.

Equally, a person may be guilty of murder if, being present at the scene he or she, intending that the victim be killed or seriously injured, intend to encourage and wilfully encourages another person to attack the victim, and as a consequence of that attack the victim dies. So there can be positive assistance and there can be what one may call passive assistance in the sense of encouragement."

44. Mr. Payne complains that this direction is both unfair and misleading. True, it was not happily worded. The judge was clearly trying to differentiate between a particeps criminis ("positive assistance") and an aider and abettor ("passive assistance"). The jury could not possibly have been led to believe that mere presence amounted to "passive assistance in the sense of encouragement". In our judgment the judge correctly stated the law and the direction was neither unfair nor misleading.

Ground 3 : This ground is abandoned.

45. This ground may be dealt with in the same way as the first appellant's Ground 1 in relation to first appellant's minor injuries. The judge was not here bringing forth a new theory but inviting the jury to use their common sense. We see nothing said by the learned judge which might be faulted.

Ground 5 : The trial judge did not put the second appellant's case fairly when dealing with self-defence (p.340-35P).

46. The judge said (at p.36A-C):

" It is on the basis of these assertions and the evidence given by the 1st accused in the witness box that the 2nd accused claims that she is not guilty of murder."

47. Having dealt with the second appellant's case at some length, and having gone through several aspects of her defence (e.g., that she did not use any weapon to attack Tang Lin, that there was a mere struggle during which Tang Lin fainted, that she did not take part in the incident or harm anybody, provocation by Tang Lin, why the second appellant lied to the police, etc,) the judge gave the direction quoted above. It was a careful direction covering all aspects of the defence that needed to be covered. In our judgment, there is nothing in this Ground of Appeal.

Ground 6 : The second appellant adopts Grounds 2, 3, 4, 5, 6, 7, 8 and 10 of the first appellant's Supplemental Grounds of Appeal.

48. In this connection, Mr. Lucas was invited to submit on the first appellant's Grounds 4, 6, 8 and 10 only:-

(1)    The first appellant's Ground 4 has been dealt with. We do not propose to say anything further on that issue.

(2)    The first appellant's Ground 6 is on earlier consistent statements and recent inventions, with which we have dealt with in some detail.

(3)    The first appellant's Ground 8 relates to the "cavalier manner" in which the trial judge was alleged to have dealt with the two appellants' exculpatory statements. Nothing further need be said on this subject.

(4)    The first appellant's Ground 10 is simply that the verdicts were unsafe and unsatisfactory. It was a very careful and comprehensive summing-up. The requisite evidence was present. As in the case of the first appellant, there is nothing in this Ground of Appeal.

Conclusions

49. For the foregoing reasons, the appellants' appeals against conviction are dismissed.

Representation:

Mr. Lucas, Q.C. and Mr. Plowman (Legal Dopartment) for Crown/Respondent.

Mr. I. Payne (D.L.A.) for 1st and 2nd appellants.