CHAI CHUNG LAM and Others v. R.

IN THE COURT OF APPEAL

1992 No. 92
(Criminal)

HEADNOTE

A judge is not required to give an accomplice warning when dealing with a number of witnesses of proven bad character.

No special duty of care rests upon a trial judge in "cases where the cards seem to be stacked most heavily against the defendant" Fraser Marr (1990) 90 Cr.App.R. 154. The duty of care is the same in every case.

There is a continuing duty on a trial judge who has admitted a cautioned statement to reject that statement If at any time during the trial he is occasioned a doubt as to whether it was given freely and voluntarily. He is not however required to make further rulings in this regard. The Court of Appeal must proceed upon the basis that he is aware of this duty and makes no further ruling because he is of the view that nothing has arisen to occasion him any doubt as to the correctness of his ruling.

IN THE COURT OF APPEAL

1992 No. 92
(Criminal)

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J U D G M E N T

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Power, V.-P.:

1. This is the judgment of the Court.

2. In this matter there were originally nine defendants facing a count that on 5th November 1990 in Sheung Shing Street, Kowloon, they murdered Shek Chi-ming. When the matter came on for trial before Bewley, J. and a jury on 20th January 1992, only four defendants remained. They were Chai Chung-lam, D1, Wong Tat-yan, D2, Chan Po-keung, D6, and Lee King-lun, D7. For convenience sake, we will refer to them as D1, D2, D6 and D7. Each pleaded not guilty and each was, after trial, found guilty. D1 and D7 were sentenced to death and D2 and D6 were, because of their age, ordered to be detained at Her Majesty's pleasure.

3. On the appeal, Mr. Sarony, Q.C. and Mr. Mok appeared on the instructions of the Director of Legal Aid for D2 but only for the purpose of informing the court that they were unable to put forward any arguable grounds of appeal. D2 requested an adjournment stating that he wished to obtain private representation. His application was granted and his appeal was adjourned to a date to be fixed.

4. It was the Crown evidence that all four defendants were members of a triad group ("the armed group") which on the night in question used knives to attack another group ("the victim's group"), one of whom was so badly injured that he succumbed almost immediately to his wounds.

5. From the evidence overall, it was clear that there had been an initial confrontation between the members of the armed group and the members of the victim's group at "the hole". This was a term used to describe a covered passageway on the ground floor of Block 1 of Homantin Estate which appears to have been used as a meeting place by members of the victim's group. Words were exchanged and there was some evidence that one of the members of the armed group was kicked and fell. In the event, the victim's group turned and fled out of the passageway and, eventually, into Sheung Shing Road where the fatal attack took place.

6. The principal evidence came from two police officers who happened to be on duty near the scene of the attack, and from members of the victim's group. The two police officers were: Lee Tung-hoi, PC19709 and Pang Wing-leung, PC21002. The friends of the deceased were: Cheng Ka-piu, aged 17, who had previous convictions for burglaries, common assault, and possession of dangerous drugs; Li Tak-wing, aged 18, who had a previous conviction for assault occasioning actual bodily harm; Lee Yuk-chuen, aged 17, who had two previous burglary convictions; Chan Ka-chun, aged 20, who had previous convictions for burglary, common assault, assaulting a police officer, possession of dangerous drugs and two offences of assault occasioning actual bodily harm; and Cheng Ka-chun, aged 18, who had two robbery convictions.

7. After hearing evidence in voir dire proceedings, the judge admitted statements that were made by D6 and D7. The statement of D6 was taken by Detective Station Sergeant Liu Siu-kai at the Homantin Police Station at 9.15a.m. on 5th November 1990. In that statement, D6 said that at about 1 a.m. on 5th November 1990 he went out with Ah Lung for a stroll and that they came across Lo Shu and about 10 others in the vicinity of Block 1 of the Homantin Estate; that Lo Shu was a member of the Luen Ying She Triad Society and that he told him that his group had been beaten by a group from the Sun Yee On Triad Society; that he told Lo Shu that the group from Sun Yee On in Block 6 had alleged that he, D6, had beaten their brothers; that he knew that Lo Shu "came up to locate the group of Lo Sun Chais to air the grievance for me"; that Lo Shu's group, having sighted a group of Lo Sun Chais, took out knives and rushed towards them; that he followed and that when they reached Sheung Shing Street, Lo Shu's group chopped one of the others with knives.

8. When asked would he lead the police back to his house to seize his shoes, he said "Ah Sir, I now tell (you all). I did hold a knife and give a chase to them, but I did not chop anybody". He was then cautioned again and said "The group of Lo Sun Chais alleged me of beaten their brothers and (they) looked for me around (with an intent) to beat me. Therefore, in the afternoon yesterday, I went to Jordan Road to find Lo Shu to give me a hand. I saw Lo Shu in Jordan Road where (I) told him that the group of Lo Sun Chais were 'Kwat Kan' me and (I) asked him to give me a hand. He promised (me that he would) bring men up to Homantin Estate at about 1 o'clock at night and beat the group of Lo Sun Chais for me". He went on to say that Lo Shu and a group of about ten men did come up at about 2a.m. and he led them looking for the Lo Sun Chais; that when they saw the group in Block 1 Lo Shu gave him a knife and another person gave a knife to Ah Lun; that they ran towards and hit the group of Lo Sun Chais who ran away; that he chased after the group and turned down Sheung Shing Street; that he saw Lo Shu and his group chopping a man but that he and Ah Lun did not approach but together ran home.

9. This statement, which was taken in the presence of the applicant's mother, was on its face a clear admission that he had instigated and orchestrated the attack which led to the death.

10. D7, Lee King-lun, also made a cautioned statement in which he said:

"The cause of this event is that a brother of us was hit by the opposite side Lo Sun Chai so this time Chan Po-keung summoned seven to eight brothers of us to meet in the vicinity of Homantin Estate Bus Terminus. Then, Chan Po-keung took out from a dark-coloured travelling bag seven to eight knives to give us each so as to go to the carpark between Block 1 and Block 2 Homantin Estate to chop the group of Lo Sun Chai. On being chased and chopped by the group of us, the Lo Sun Chai ran towards Sheung Shing Street. (They) were caught by our group on reaching the road off the vehicle detention compound. As I was slow, I saw that one of the Lo Sun Chai was chopped and wounded all over his body by people and was bleeding a lot when (I) reached Sheung Shing Street. I did not take part in chopping. On seeing the situation, I ran towards the direction of Tin Kwong Road along Sheung Shing Street. On the way the knife was abandoned to the bush. About 15-20 minutes later I returned to the vicinity of Block 5, Homantin Estate, where I saw Chan Po-keung (I) then went to Chan Po-keung's home with him to sleep".

11. The most cogent evidence as to the actual chopping came from the two police officers, PC 19709 and PC 21002, who were on duty near the gate of the police vehicle compound in Sheung Shing Street at the time when the fatal attack took place. There was also evidence from the five companions of the deceased as to the initial confrontation, the flight and the fatal attack. The five were persons of poor character, they had an interest in seeing the attackers who had had murdered their companion punished and they had had the opportunity to put their heads together. Their evidence clearly had to be approached with care. It can properly be contrasted with that of the two police officers who had no connection with the parties but who had, coincidentally, happened to be on duty at a point opposite to where the fatal attack occurred. Their evidence against D1 was particularly cogent as both identified him as one of the attackers and both said that they had apprehended him after a short chase.

12. Mr. Grounds, who appeared for D1, submitted in his first ground of appeal that the conviction was unsafe and unsatisfactory because:

(1) of a failure by the trial judge to understand the evidence with regard to the position where the first defendant was standing at the time of the initial confrontation and a misdirection with regard thereto;

(2) the trial judge confused the evidence given by Chan Ka-chun with that given by Cheng Ka-chun;

(3) of a failure by the trial judge to remind the jury of weaknesses in the evidence of PW6 Cheng Ka-chun;

(4) of an unfair emphasis upon the weaknesses in the evidence of D1.

13. The second ground of appeal pleaded by Mr. Grounds was identical with Ground 2 in the grounds to be argued by Mr. McGuinniety who appeared for the 6th defendant. Mr. Grounds stated that he would not address thereon but would be adopting the arguments of Mr. McGunniety and we shall deal with that ground later in this judgment.

14. We turn to the four matters upon which Mr. Grounds relied in his first ground.

(1) The trial judge when directing the jury as to the evidence of D1 about his position at the time of the confrontation stated that he had said:

"Lo Shu's group drew knives and rushed, as he said, 'from behind me' but later on he withdrew that".

The complaint is that this is a misdirection of fact as D1 had never said that the group had rushed from behind him. It was submitted that it was a most important misdirection as it incorrectly suggested that D1 had, on his own admission, placed himself in the forefront of the attacking party at the time of the initial confrontation. His evidence is, however, when examined by no means as clear cut in this regard as Mr. Grounds would have it. It was as follows:

"Q. So what did you do?

A. After the one with his back towards me had been kicked, the group behind rushed forward and the person who had been kicked had fallen to the ground said, "Move him".

Ct. Lo Shu said, 'Move him.'

Mr. Lim: Right.

Q. When you say the people from behind, where were these people in relation to you?

A. In front of me. It was a group and there was about one body's space between every two of them.

Q. At that time, were you acted(sic) in the hole or were you outside the hole?

A. I was on a step somewhere between the outside and the inside of the hole.

Q. So the group in front of you were inside the hole.

A. Yes, but not very much inside.

Q. When you heard this shout 'Move him', tell us what else you saw.

A. The group who rushed from behind him drew something out.

Q. What was the lighting condition like in the hole at that time?

A. Normal.

Q. Could you see what these people drew out?

A. Knives.

Q. Yes, carry on. Tell us what you saw.

A. The one who had kicked Lo Shu picked up a metal pipe from the ground. He pushed the metal pipe forward once. He then threw it down and ran away.

Q. And what did this group do?

A. Which group?

Q. The group in the hole.

A. You mean the group of Lo Shu?

Q. Yes, what did they do?

A. Rushed forward and the group who had kicked Lo Shu ran in another direction.

Q. What did you do?

A. As I did not know Homantin District well, so I followed the other people. I did what they did." (Emphasis supplied.)

This matter was taken up by Mr. Stone for the prosecution in cross-examination in the following passage:

"Q. Where were the 6th accused and the 7th accused when you were looking in to the hole?

A. Where I first saw the three or four men, that is on the step between the inside and the outside of the hole.

Q. So you are saying that the 6th accused and the 7th accused were behind you when you were looking into the hole?

A. No.

Q. Were they in front of you when you were looking into the hole?

A. Beside me.

Q. Then knives were produced by Lo Shu's group, is that right?

A. After Lo Shu had been kicked, he fell. The group rushed from behind him and drew knives.

Q. Where was the 6th accused when the group rushed forward with knives?

A. He was still beside me.

Q. Did he draw a knife?

A. I did not notice.

Q. Where was the 7th accused when knives were produced?

A. Where we had been standing and talking.

Q. You mean he was beside you?

A. Sort of."

15. It is certainly correct that D1 did not place himself in the forefront of the group at the time of confrontation. It seems clear, however, that he was saying that there was very little separating the persons standing at the entrance to the hole.

16. After re-examination the following passage occurred:

"By Court:

Q. I just want to develop that a bit more. You said yesterday that Lo Shu's group drew knives and rushed from behind you. You also said that Lo Shu's group comprised ten people, including the 6th and 7th defendants.

A. Yes, but not including me.

Q. But you earlier said that you had approached the 6th and 7th defendants. So they would have been in front of you, not behind you.

A. They were in front of me all the time. I have been saying that they were in front of me.

Q. Your evidence is that Lo Shu's group was inside the 'hole', and the 6th and 7th defendants were with two or three other people just outside the 'hole'.

A. When I first looked at the hole, I saw three or four persons there and I walked closer. I saw more people inside.

Q. Why did you say the group rushed from behind you?

A. I just meant that they ran forward.

Q. So that was wrong. They did not run from behind you.

A. Not from behind me.

Q. Thank you. That is all I want to know. That is all."

It appears that the judge must have misunderstood the evidence of D1 as he had not said that the group rushed from behind him. It was, therefore, not correct to tell the jury, as the trial judge later did, that D1 had at one stage said that Lo Shu's group had "rushed from behind me" and had later withdrawn it. We do not, however, consider that this misdirection can be given the significance attributed to it by Mr. Grounds. Firstly because, on D1's own admission, the group were in close proximity to each other and were at the mouth of the hole at the time of the initial confrontation. Secondly, and more importantly, because the crucial matter in the trial was the part eventually played by the members of the group in the attack. This was the vital issue and there was no doubt, if the evidence of the police officers was accepted, that D1 was in the forefront of that attack. We are satisfied that the misdirection of the trial judge was not such as to have misled the jury in any material way.

(2) We see no significance in this matter. Indeed, Mr. Grounds did not seek to place much weight on it. The judge did, it is true, confuse two very similar names but given that he accurately stated the evidence that was actually given we are unable to see how D1 could have been in any way prejudiced by this.

(3) The complaint as to the way in which the judge dealt with the evidence of PW6 was threefold. It was suggested that the judge had failed, when dealing with that evidence as it related to D1, specifically to tell the jury that PW6 had

(1) said that the 2nd defendant had been involved in the chopping but had resiled from that evidence;

(2) had admitted making mistakes concerning the 8th defendant; and

(3) had resiled from his evidence in relation to the 9th defendant who was found to have no case to answer.

The judge had warned the jury to look at the evidence of the civilian witnesses with care (we will deal fully with that warning shortly) and the jury had heard D6's evidence and his cross-examinaton. It was for them to give heed to the impression which they had formed of his reliability in the course of the trial. We do consider that it was incumbent upon the judge specifically to detail each of the matters set out above in his direction the jury.

(4) We are quite unpersuaded that the trial judge unfairly dealt with the weaknesses and contradictions in the evidence of D1. A trial judge must be even-handed, but even-handedness cannot be gauged by the amount of time he spends in his summing up upon a particular aspect of the evidence. It is proper for a judge, if the evidence of a witness reveals weaknesses, to assist the jury by commenting thereon. If there are a number of weaknesses his comments will, of necessity, be lengthy but this cannot be suggested to be indicative of unfairness. In the present case the evidence of D1 fully warranted the comments made about it by the trial judge.

17. We turn now to the appeal of D6 who was represented by Mr. McGuinniety. We will deal firstly with Ground 2 - the ground common to D1 and D6.

18. It was argued in this ground that the trial judge had not given a sufficiently strong warning as to the evidence of the friends of the deceased. It was submitted that he failed to remind the jury that they were members of a triad society, that they had previous convictions and that some wanted the defendants punished. It was also submitted that he should have told the jury to look for support for their evidence before acting upon it and that he should not have used the evidence of one of them to support that of another. The trial judge early in his summing up warned the jury that they had to take care when considering the evidence of these witnesses. He said

"I want to say a word of warning about the civilian prosecution witnesses. Quite apart from their previous convictions, which may indicate to you that they may not be reliable witnesses of truth, they admit they belong to a triad society. They also admit that they would like to see the defendants punished. That is a motive to inculpate the arrested persons."

The judge here referred specifically to their previous convictions, their triad connections and the fact that some had admitted they wanted to see the defendants punished. When he came to deal with each of then he indicated the nature of their previous convictions. There is no warrant from the suggestion that the judge was called upon to give a quasi accomplice warning in relation to these witnesses. We were referred to Reg. v. Beck [1982] 1 WLR 461 but are satisfied that it gives no support for the proposition advanced by Mr. McGuinniety. Indeed it supports the opposite view. The judge made it plain to the jury, as their common sense would undoubtedly have already indicated to them, that they must approach this evidence with care. He was not called upon to do more.

19. Both Mr. Grounds and Mr. McGuinniety strongly submitted that, when the trial was viewed in the round, this Court could not but be left with an uneasy feeling that the trial judge, influenced by the strength of the Crown case and the weaknesses of the defence, had, when summing up, fallen short of the duty of care which he owed to these defendants. Both relied heavily, when so submitting, upon the case of Fraser Marr (1990) 90 Cr.App.R.154, in which the Lord Chief Justice said, at 156:

"It is, however, an inherent principle of our system of trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge. Indeed it is probably true to say that it is just in those cases where the cards seem to be stacked most heavily against the defendant that the judge should be most scrupulous to ensure that nothing untoward takes place which might exacerbate the defendant's difficulties."

20. It is quite wrong to suggest that this passage can be interpreted as meaning that where there is cogent evidence against a defendant some special duty of care rests upon the judge when summing up. The duty of care is the same in every case. It is one thing to say that the judge should be most scrupulous to ensure that nothing untoward takes place which might exacerbate the defendant's difficulties and quite another to suggest that there is some special duty of care in the case where the evidence against the defendant is particularly cogent. We are satisfied that what the Lord Chief Justice was saying was that where there is strong evidence against a defendant the judge must be particularly careful not to lose sight of his duty to conduct the trial fairly and to deal evenhandedly with the evidence.

21. The conduct of the trial in Fraser Marr was unsatisfactory for three reasons. Firstly the judge refused to allow the defence to conduct a demonstration in re-examination after having allowed the prosecution to conduct a similar demonstration in cross-examination. Secondly the judge failed to direct properly as to the use to which character evidence could be put. Thirdly he referred to that evidence in such a way as to suggest that it was of no real significance. The appellant was clearly not as his counsel urged given "a fair run".

22. We are satisfied that there is no foundation for suggesting that D1 and D6 were not given "a fair run" in the present case. They were not prevented from putting before the court all of the evidence which they wished to call and the trial judge nowhere made comments which were either unfair or outside the bounds of propriety.

23. There were only two further matters argued by Mr. McGuinniety with which we consider it necessary to deal. They are contained in Grounds 4 and 5:

"4. Notwithstanding the Learned Trial Judge's statement of intention that he would in turn firstly against and secondly in favour of each defendant direct the jury to the trial evidence he clearly omits in regard to the 6th defendant to deal with the 2nd limb of his stated intention and instead - having directed the jury as to the prosecution view of evidence against the 6th defendant at best only follows his comments up with a neutral view of the defence case for the 6th defendant."

"5. The Learned Trial Judge wrongly stated that the defendant was identified by all civilian witnesses as the leader with a knife. Cheng Ka Piu only identifies the 6th defendant as having pulled out something that looked like a knife - and all civilian witnesses at best describe the defendant as one of two or three leaders. In Marr [1989]

90 Cr. App. Rep. 154 the Court of Appeal stressed that the accused had a right to have his case presented fairly by counsel and Judge - and that - observance of that right is never more important than when the cards seem to be stacked most heavily against the defendant."

Ground 4 suggests that the trial judge failed adequately to outline the case of D6 and, having set out the prosecution case, "at best only follows his comments up with a neutral view of the defence case." The defence case was, given the contents of the cautioned statement made by D6 in the presence of his mother and the failure to call the mother, not a strong one. Except for one other matter to which we now turn the judge carefully, and in our view adequately, set it out.

24. This matter is the subject of the first part of Ground 5. The second part of Ground 5 raises the issue of fairness in the light of Fraser Marr a matter with which we have already dealt. The complaint arises out of the following passage in the summing up. When speaking of the initial confrontation and the role of the 6th defendant therein the judge said:

"He was identified as the leader with a knife at the 'hole' by all the civilian witnesses. Well, members of the jury, all these witnesses knew him, so you will ask yourselves: have they exaggerated his role?"

To understand this ground it is necessary to look at the evidence given by each of the civilian witnesses. Cheng Ka-piu said that D6 was one of two persons in the lead as the party approached the hole. He said that the two were then joined by others, that after one of them had shouted "Don't move" the two in the lead pulled out from their denim jackets something that reflected light and that he thought that the objects were knives. He said that he then started to run. The cross-examination by Mr. Franklin who appeared for D6 with regard to knives was as follows:

"Q. It was very confusing, Mr. Cheng - the situation at that time.

A. Quite.

Q. The first thing you saw the two men who approached you do was to take out what you think were knives.

A. Yes.

Q. Did you see other people behind them take out knives?

A. I am not clear about those behind.

Q. In any event when you saw knives being drawn, you became, I suggest, understandably, very frightened.

A. Quite.

Q. You were unarmed.

A. Right.

Q. Your primary concern was to run for your life?

A. Right.

Q. It was a matter of seconds, was it not, between the time you saw those knives being drawn and the time you turned to flee.

A. Right. A few seconds.

Q. When you saw these two men draw their knives, they were at one end of the covered rest area and you were at the other end.

A. Right.

Q. What distance would you estimate that to be approximately?

A. Ten odd walking steps."

Cross-examination as to the position in which D6 was standing when the group approached "the hole" was as follows:

"Q. You are wholly mistaken when you say that he was in the forefront of the group holding a knife.

A. He was really the first one who came in, he was in the lead.

Q. You have placed him there - I have said 'I suggest you are mistaken', I am not suggesting that, I am suggesting that you are making this up, you are embellishing this - you have put him there in the forefront of this group because you believe that he might have taken part in this attack.

A. In fact, that night I saw him and the other one unknown to me.

Q. You might have seen him, but you saw him, if at all, on the periphery of the group unarmed.

A. I remember very clearly that he was either the first one or the second one. He was one of the two who came in."

The cross-examination continued:

"Q. You are simply inventing the fact that he was at the forefront of this attack carrying a knife.

A. I did not say that he came in carrying the knife. He came in and then he drew the knife from his jacket.

Q. I suggest you never saw him draw a knife.

A. I disagree.

Q. And the reason you are telling the court and the members of the jury this is because you, as you say, are anxious to see the 6th defendant punished.

A. I am not sure whether the object he drew was a knife but I am sure that he drew something that reflected light.

Q. You thought it was a knife.

A. Yes."

25. It is clear from the above that his evidence was that D6 was one of the first two persons who came to the hole and that he drew out something which reflected light which he took to be a knife.

26. Lee Tak-wing said that D1, D2 and D6 were in the lead as the group approached the hole. He said that the one in the lead, who was not at that time known to him, was D1 and that he said "Don't run". He said that when he first saw the three leading the group they were carrying knives which they drew from inside their clothes, and that he together with the others then ran. Under cross-examination he affirmed that D6 was one of three in the lead and that he had seen him draw out a knife.

27. Lee Yuk-chuen said that D6 and a person unknown to him were in the lead of the group as they approached and that he saw D6 draw a knife from behind his right hand and that the unknown man did the same. Under cross-examination he affirmed that D6 was in the lead of the group and positively rejected the suggestion that he was on the periphery of the group and was unarmed.

28. Chan Ka-chun said that D6 was one of the three in the lead of the group which approached the hole and as they approached all three drew knives and that he then took flight. Under cross-examination he said that he was sure that D6 was one of the men in the lead and that he had a knife. He said that he "certainly was armed".

29. Cheng Ka-chun said that D6 was one of two people in the lead as the group approached the hole. He said that when the group first approached the rest area knives were produced. He later modified this saying that as soon as the two men came into the hole they produced knives. He went on to say that he later saw the 6th accused chopping the deceased in Sheung Shing Street. In cross-examination he re-affirmed that D6 was at the front of the group when it first arrived at the hole.

30. The judge should have told the jury that D6 was identified as "a leader" rather than "the leader" but we do not consider that this mis-statement in any way worked to the prejudice of D6. We take a similar view of the failure of the judge to remind the jury that Cheng Ka-piu had not said that D6 was carrying a knife but had said rather that he was carrying something that looked like a knife.

31. We find no substance in the grounds that were urged on behalf of D1 and D6. Their appeals are dismissed.

32. We turn finally to the appeal of D7. Mr. Cheng Huan, Q.C., with him Mr. Anthony Chan appeared for this applicant. He argued two grounds: firstly that the trial judge erred in his finding that the cautioned statements made by D7 were voluntary and secondly that the trial judge erred in failing to reconsider the issue of voluntariness when the Crown witness who had taken the statement, when giving evidence in the trial proper, made a material departure from that which he had given in the voir dire.

33. In arguing his first ground Mr. Cheng Huan pointed to a number of matters which he suggested raised a doubt as to whether the statement was given freely and voluntarily. We do not intend to canvass them. They were matters essentially for the trial judge. Mr. Cheng Huan was, in reality, asking us to re-try the issue of voluntariness upon the basis of the record before us. There is nothing to suggest that the trial judge failed to consider all matters material to the issues, or that he took into account anything to which he should not have had regard. Nothing has been raised which would warrant our interfering with his decision that the statement was given freely and voluntarily.

34. We move to the second ground. When the detective sergeant who took the statement came to give evidence in the trial proper he said that the statements made by the defendant when he took him to the scene of the initial confrontation and of the attack were first written down by him on a piece of paper and then later transcribed into his note book. He made no mention of this procedure when giving his evidence in the voir dire. Indeed his evidence at that time appeared to be given upon the basis that the statements of the applicant had immediately been written down into the notebook. Mr. Cheng Huan submitted that this variation was one which, depending upon the view taken of it, might have cast doubt upon the credit of the sergeant as to the whole of his evidence and as to the voluntariness of the statements. He submitted, this being so, that it was incumbent upon the trial judge specifically to rule that his earlier finding that the statements were free and voluntary was in no way shaken by this evidence. We do not agree that he was required so to do. It is true that there is a continuing duty upon a trial judge to reject a statement should he at any time during a trial be occasioned a doubt as to whether it was given freely and voluntarily. He is, however, not required to make further rulings in this regard. We must proceed upon the basis that he remains aware of his duty and makes no further ruling because he is of the view that nothing has arisen to occasion him any doubt as to the correctness of his ruling.

35. The appeal of the 7th defendant must also be dismissed.