THE QUEEN v. CHIU MING CHEUNG AND OTHERS

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JUDGMENT

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Li V.-P.:

1. The six appellants are six of eight persons indicted for 1 count of murder and 6 counts of wounding with intent to cause grievous bodily harm. The 1st appellant is the 2nd defendant in the court below (D2), the 2nd appellant is the 8th defendant, the 3rd appellant is the 3rd defendant, the 4th appellant is the 4th defendant, the 5th appellant is the 4th defendant and the 6th appellant is the 7th defendant. For convenience I shall refer to them in their respective numerical orders as defendants DI to D8 respectively.

2. In the end D5 and D6 were acquitted of all counts by the jury and the other six, Dl, D2, D3, D4, D7 and D8 were convicted of all counts.

3. On the 22nd of November 1983 there was an indiscriminate attack on the staff and customers of a mahjong school by the name of Luen Fat Mahjong School at Sun Tsuen Street, Tsuen Wan. The assailants wielded melon knives and beef knives for the purpose. They attacked without warning. As a result one person died and six were wounded, hence the one count of murder and six counts of wounding with intent. The attackers were ten to twenty in number. Each was masked with a piece of white cloth. Thus none of the attackers was identified.

4. The evidence on the attack, the resulting death and injuries was not seriously challenged. The only issue is whether any of the six appellants was a participant in this attack.

Case against D1

5. After the incident the police started enquiries. On the 9th of December 1983 a massive operation was mounted. About thirty persons were located and brought back to the police station. D1 was one of the persons brought in at about 2 p.m. on that day. Later in the afternoon, Chief Inspector CHEUNG May-yee together with one Station Sergeant Cheng interviewed him in respect of his background, his friends with whom he associated and what he did during the fortnight prior to his arrest. The interview took 30 to 35 minutes.

6. At about 4.15 p.m. Chief Inspector Cheung handed D1 over to Sergeant LAI Siu-wah, No. 4604. The Sergeant then took over the interview. At 5 p.m. on the same day the Sergeant put D1 under arrest because he had reason to believe that D1 had taken part in the Luen Fat Mahjong School attack on the 22nd November 1983 in which a person was killed and six others were wounded. Then he administered the caution. In his statement D1 denied that he had taken part in the attack though he admitted knowing about it beforehand. He said that LAM Moon was the instigator of the whole matter. In the evening in question he took one Sai Wah with him. Then the whole group including LAM Moon and his other associates went out to Tai Mo Shan to have a barbecue. After that they drove to the Lai King Carpark where they all stopped for a while. He saw one of LAM Moon's associates went up to a building. Ten minutes later that man came back with a bag containing objects with protruding knife handles. The group was then directed by LAM Moon to go to the Luen Fat. Three vehicles were used - two 7-seater vans and a car driven by D1. In D1's car was Sai Wah. He drove Sai Wah as far as the Good View Theatre. When he stopped, Sai Wah got out and he drove home. The next day Sai Wah told him over the telephone that they, meaning the group, had gone into the Luen Fat to chop people the night before, that he, Sai Wah, had entered the Luen Fat and had seen the friends of LAM Moon chopping people and that he, Sai Wah, then went out without participating in the chopping. Certain questions were asked to clarity some ambiguities in the statement. The whole interview ended at 7.36 p.m. on the 9th of December. That was exhibit P1.

7. On the following day, the 10th of December, at about 9.24 a.m. the Sergeant interviewed D1 again. He started off with what appeared to be an antecedent statement and then D1 repeated what he had said the day before. In addition he gave more details. He told the Sergeant that the car he drove on the 22nd of November was borrowed from one AU Chi-kwong. In this 2nd statement he said:

"About an hour later, LAM Moon said to me, 'You drive a person to Lai King Estate for me. I asked him why he had to be driven there. LAM Moon said, 'We'll go to have a fight at Luen Fat a little later. Will you go?'  I said, 'I will not go, because I am a familiar face there. I can't help you'. He thus said, 'No matter what, you drive a person to Lai King Estate for me. You wait for me there.

At that time, Sai Wah was also present when LAM Moon talked with me. However, he said nothing. I just asked him 'What about you?' He didn't answer me. I thus went with Sai Wah and LAM Moon's friend to the carpark in Lai King Estate. The male then got out of the vehicle and went upstairs. Sai Wah and I thus waited for LAM Moon inside the vehicle."

Then there was a lunch break. And after lunch D1 continued to say:

"After Sai Wah and I had waited for about 5 to 10 minutes, LAM Moon and his group of friends arrived there in two 7-seater dual purposes vans. One was white the other one was yellow. I'd seen the two said vehicles parked in the vicinity of the barbecueing place at the hilltop of Tai Mo Shan. However, I did not pay attention to their Registration Nos. After they alighted from the vehicles, they stood and chatted by the side of the vehicles. They were at a distance of about four car-lengths from me. They didn's talk in a loud voice, thus, I couldn't hear what they were talking about. At that time, Sai Wah and I were sitting in the vehicle and had never got out of the vehicle.

        About 5 minutes later, the male who went to Lai King Estate in my vehicle came down from upstairs to the Carpark. At that time, I saw him carrying on his right shoulder a travelling bag. However, I can't remember the colour. Several knife- handles stuck out of the travelling bag. The handles were in wooden colour. The reason why I saw it so clearly was because he passed me at that time to approach LAM Moon.

        When the male carrying the travelling bag reached where LAM Moon was, LAM Moon said in a loud voice, 'You people go to do the work. I am not going'. Thus, all the persons there boarded the two 7-seater dual purposes vans. LAM Moon stayed standing there while the male carrying the travelling bag boarded one of the vans. I don't know which vehicle he got on board."

He went on to say he saw the two vans move off. With Sai Wah on board he drove his car following the vans. When he reached the Good View Theatre in Tsuen Wan he saw the two vans turn into Chung On Street. There he stopped the vehicle and told Sai Wah to get off. However, Sai Wah refused to do so and asked him to drive him to the Luen Fat. And so he drove Sai Wah to the Luen Fat. That is exhibit P2.

8. On the 15th of December at about 11 a.m. Sergeant 4604 and a party of police officers took D1 to Tai Mo Shan and later to the Lai King Estate Carpark where D1 pointed the place where they had the barbecue and the place where they had assembled before going to the Luen Fat.

9. On the 11th of December 1983 D1 was charged with the murder of the deceased, TING Lin-fat, a member of the staff of the Luen Fat Mahjong School. In answer to the charge he replied:

"That evening when the fight took place I did not join in to fight. Before others took part in the fight I was asked to assist, but I already refused. What I want to say was already said yesterday."

That was the sum total of the evidence against Dl.

Case against D2

10. The evidence against D2 was that he was located at about 7 p.m. on the 10th of December 1983 when he was invited to go from his home to assist the police in their enquiry.

11. On arrival at Tsuen Wan Police Station he was interviewed by Inspector Shum at 8 p.m. in the presence of Chief Inspector Koo. At the beginning he was told by Inspector Shum that he, the inspector, was making enquiries into a case of homicide and wounding which had occurred at the Luen Fat Mahjong School on the 22nd of November 1983. The Inspector began with questions about D2's personal background until he reached a point where he asked D2 whether he remembered where he had been on the 22nd of November 1983. In reply D2 said he went to Tai Mo Shan for a barbecue and he remained there all night until the next morning. He said he was there at the barbecue with at least three of his friends. When asked whether he knew their telephone numbers, he said he had a pocket telephone book. At that moment he produced a telephone book from his pocket and started to give the telephone numbers of his friends. Then he was asked whether he could help by locating his friends so that they, his friends, could assist in the enquiry. He kept silent for a while, then he said in a low voice:

"You mustn't tell anyone that it was said by me. On that day it was Ah Yee Suk who told me to go to Luen Fat, I merely followed the group."

At this juncture the Inspector declared that he was under arrest in respect of the homicide and wounding at the Luen Fat Mahjong School on the 22nd of November, 1983 and administered the caution. D2 said that he had something to say. Then he commenced to write the following statement:

"On that afternoon WONG Lap-chung telephoned me asking me to go to barbecue. I said it was good. We reached there. After having barbecue, he said he would go with me to Luen Fat Mahjong School for fighting. I replied, 'See Tan' (as you like). We then got into a vehicle. We alighted after reaching there. We went in. On entering I delivered a chopping blow, I then ran on a vehicle. The person, whom I chopped once, was wearing denim shirt standing at the doorway. I did not chop anyone to death."

The interview concluded at 10.50 p.m. on the 10th of December.

12. The next day on the 11th of December he was charged with the murder of TING Lin-fat. In answer to the charge he said:

"I did not go in to chop people. I only chopped some- one at the entrance. I chopped once and walked past."

Subsequently when this answer was read back to him, he made one change. He substituted the word "left" for the words '''walked past". That was all the evidence against D2.

13. D2 elected to give evidence. He said that he was contacted on the 22nd of November 1983 by one WONG Lap-chung. As a result he went to the Lai King Estate Carpark next to the Lok King House where he met LAM Moon. He was told to sit in one of the 7-passenger vans and went to Tai Mo Shan for a barbecue. The party finished by about 10 p.m. and they drove back to the carpark at Lai King Estate. There he saw someone carrying a travelling bag and boarded the van. Two vans arrived at the junction where the mahjong school was situated. Six or seven-persons alighted from the yellow van, including LAM Moon and WONG Lap-chung. Others got off from the white van. He, D2, himself waited in a van for about 10 minutes. Then the group of people who had alighted returned and rushed back to the vans, carrying knives.

14. On the 10th of December 1983 he returned home about 7 p.m. when he met four police officers. He was told to take out everything including his pocket telephone book which he 'did and these items were kept by the police. He was then taken to a large room in Tsuen Wan Police Station were he was questioned by a number of police officers. He was slapped on the face. He admitted he told two lies to the police in the statements. One was that the barbecue took the whole evening until the next morning and the other was that he went by taxi.

15. Then he was taken to a small room where he was questioned. It was alleged that while in the big room Inspector Koo slapped him on his face. When he was taken into the large room he was asked where he was on the 22nd of November and what he did. He told a lie because he was frightened. He was closely questioned by the police officers to whom he told the same sequence of events as he told the court. However, they did not believe him. A few minutes later Inspector Koo told Inspector Lee and Inspector Shum to take him to another room, and later on to yet another smaller room. In that room Inspector Shum wrote something and asked D2 to sign that he under-stood. He was reluctant and he was slapped on the face by Inspector Koo. After that both Inspector Koo and Inspector Shum put questions to him in turn and those questions were about his family background. While this was being done Inspector Shum was writing on three pieces of paper. When it was done D2 was asked to sign all those pages. He realized that that part of the writing was about his friends, was not what he had told the officer. He did not want to sign. At this point Inspector Koo, again slapped his face five times. He was then told to take off all his upper garments and he was handcuffed to the chair. The air-conditioner in the room was turned on. In the end he could not stand the cold any longer. He agreed to sign. Inspector Shum wrote another paragraph and told D2 to sign his name with the words "understand and something to say". Then the Inspector retrieved the paper and wrote a few more lines and gave the paper to D2 to write at his dictation.

16. D2 called his younger brouther CHIU Ming-kong to corroborate his evidence that he and his home had been searched and the telephone book had been taken away from him before he was taken to the police station. The police had been to his home three times. On the 2nd occasion the home was searched before the return of D2.

17. In cross-examination he said he joined the group to go to Luen Fat because he knew there was going to be a talk. He went there not to participate in the negotiation, but he had no idea where the place of negotiation was. He did not know that there had been a fight until the people who alighted from the vans returned to the van and LAM Moon told him that there was a dispute as a result of which there was a fight. He also admitted that when he was examined by Dr. Yip he did not make any complaint of assault because he thought he was sent to Dr. Yip in order to have a specimen taken from him.

Case against D3

18. D3 was intercepted in Hong Kong & Macao Ferry Pier at 11.10 p.m. on the 14th of December 1983. He was taken by Tsuen Wan police officers to the Waterfront Police Station. While at Waterfront Police Station one of the officers who was sent to collect him was Dectective Police Constable 7734.  He told D3 that he was responsible for the investigation of a case of murder which occurred at the Luen Fat Mahjong School on the 22nd of November 1983. He said he had reason to believe that D3 could assist him in the investigation of the case and then he cautioned D3.  D3 replied that he understood and said as follows:

"I myself do not want to say anything, I will let my solicitor say it."

19. He was then taken back to Tsuen Wan Police Station. After he was processed and finger-printed he was detained in the cell for the night.

20. At about 1.49 p.m. on the 15th of December he was interviewed by Senior Inspector LEE Sze-kwong in room 218 of the Tsuen Wan Police Station in the presence of DPC 17901. In the course of the interview Inspector Lee told D3 that he was going to show him several copies of statements to read over and that the statements were given by the persons who had been arrested by the police for the case of murder. He reminded D3 of his earlier indication that he did not want to say anything until the arrival of his lawyer and then enquired whether he wish to get his solicitor then. D3 replied that there was no need but he would like to telephone his parents. He was permitted to do so but without success. Then he telephoned his girl friend; with whom D3 had a short conversation concerning the incident of his arrest. At 2.23 p.m. Inspector Lee handed him a copy of exhibit P1'- a cautioned statement made by D1 Having read it, D3 said: "Fuck, there is a lot of things which I don't fucking know." At this juncture Inspector Lee administered a proper caution.' Having indicated that he understood. the caution D3 said as follows:

"I have to say something. Ah So mentioned in his statement that after he conveyed me and Tai Shing by vehicle to the Grand Theatre, he then left. In fact, he did convey me, Tai Shing and Ah Yin by vehicle to the Mahjong School. At that time there were three vehicles there and ours was the last one. Before I went in, the rest of the men had gone into it. When I went in, people therein were in a mess. I tried to chop a person with the knife but he warded off with a wooden chair. I could not chop nor injure anybody. I then heard somebody saying to leave. I immediately got on the vehicle and left. The others seemed not to have said so. However, I don't know a lot of other things."

After this he was shown the 2nd cautioned statement made by Dl. Having read it D3 said: "Ah Sir, that is more like it. Upon this Inspector Lee cautioned him again. Then D3 said: "More or less the same." After this he was shown the 1st statement by one CHEUNG Chun-hoi. He read it and stared at the inspector without saying anything Then another statement made by CHEUNG Chun-hoi was shown to him. Having read it, D3 said: "Ah Sir, I wish to say something." Then there came yet another caution. Having indicated he understood the caution D3 said:

"I did ring up CHEUNG Chun-hoi by telephone. I asked him to come down for snack. He, however, did not come down for snack. He wasn't seen in the mahjong school either."

This is exhibit P4.

21. On the 16th of December he was charged by Chief Inspector Koo in the presence of Superintendent Whitley. He was charged with the murder of TING Lin-fat on the 22nd of November 1983. In reply to the charge he said first that he would like to think for a while. Having done so he wrote a long statement confirming what was contained in exhibit P4. The statement in answer to the charge is exhibit P5.

22. In the course of the trial there were suggestions of improper questioning followed by physical violence. It was put to the prosecution witness that having been shown the statements D3 was ordered to write something similar to the statements made by D1. All these allegations were denied. D3 elected not to give evidence so there was no evidence at all to support those allegations.

Case against D4

23. We now come to D4, AU Chi-kwong. He was taken from his home on the 15th of December 1983. He was interviewed by Senior Inspector SHUM Wai-kin from about 5.56 p.m. to 8.40 p.m. of the same day. At the beginning the Inspector told him that he was investigating a case of homicide and wounding which had occurred at the Luen Fat Mahjong School at Sun Tsuen Street on the 22nd of November 1983. The Inspector asked him whether he was willing to assist in the investigation. D4 said: "Sir, there is no need to say that much. Regarding this incident it's that somebody left me on the table." Thereupon the Inspector cautioned him.

24. After this caution D4 indicated he wanted to say something. He said:

"On that night 'Ah Moon' told me to go to have barbecue. Only when I'd got up there did I come to know about this incident. But I did not dare to go away because I did not know the consequence. So I followed them to board a vehicle to go to Lai King. Then someone gave knives to us. I took a knife. I was taken in the vehicle to the Luen Fat Mahjong School. Persons inside the vehicle ahead took knives, alighted and rushed inside. I took the knife and alighted. But I did not dare enter. I heard people fighting inside. Then they ran ...."

At that time D4's mother arrived and she was allowed to witness the rest of the interview. Having indicated that he was prepared to continue D4 said:

"Then they ran to board the vehicle. I then followed them to board the vehicle to run away. Then we alighted at different places. I then myself took a transport to go away. Actually I did not chop and injure any person."

After he made his statement Inspector Shum asked him whether he was willing to reply to certain questions to clarify his statement. He indicated his willingness. Some of the questions and answers were as follow:

25. D4 elected to give evidence. He said that upon his arrest he was taken to a room to face three or four of  officers including Inspector Shum. He was questioned as to his whereabout on the 22nd of November 1983. They disbelieved his denial of any knowledge of the incident. He wanted to see a lawyer but that was denied him. His hair was pulled and his chest was punched. At one stage he was pushed face downwards onto a table and a telephone directory was pit on his back. He was then hit with an iron pipe. He was shown statements made by D1, D2 and D3 and was told to write something similar. Again he was beaten and his hair pulled. He was told that if he made a statemen the would not be charged. He said that the statement which he made including the questions and answers, exhibit P7, was simply not true. Inspector Shum dictated the gist of that statement. He was forced to finish writing before he was allowed to see his mother. The questions and answers incorporated in the statement were Inspector Shum's composition. As a result of the physical violence committed against him he had bruises. However, when he was examined by a doctor on the 17th of December 1983, he made no complaint to the doctor. Nor did the doctor observe any bruise on any part of his body.

Case against D7

26. D7 was located in the early hours of the 31st December 1983 as a result of a routine check at certain premises on Tsing I Island. He was taken back to the Tsuen Wan Potice Station and interviewed by Sergeant 7925 from 10.55 a.m. to 1.03 p.m. He was told by the Sergeant that he, the Sergeant, was investigating a case of homicide and wounding which occurred in the evening on the 22nd of November, 1983. The Sergeant said that he had reason to believe that D7 was involved in the case and then administered the caution. The Sergeant then handed to D7 a piece of paper on which the aforesaid preamble was written. D7, having read it, wrote: "Understand. It was Wa Chai who asked me to go. I knew nothing before the incident. Then the Sergeant asked him whether he was willing to answer questions and again administered the caution. D7 indicated that he was willing to answer the questions. Part of the questions and answers were as follows:

That is exhibit P17.

27. On the lst of January 1984 he was charged with the murder of TING Lin-fat by Chief Inspector Koo in the presence of Superintendent Whitley. In reply to the charge he said:

"I didn't take part. I did go there but only to the door way then I left. Wah Chai asked me to go. There were 'CHAM', hand gloves and mouth cloth."

After he finished reading the reply he asked to amend the statement by saying that the word "CHAM" did not mean "chop" but it meant "knife". That is exhibit P18.

28. In the course of the trial there were allegations of threats as well as physical violence. However, D7 elected not to give evidence so that there was no evidence to substantiate these allegations.

Case against D8

29. D8, WONG Lap-tak, was arrested by chance at about 11.40 a.m. on the 18th of February 1984 as a result of a routine check in a room in I. Feng Building, Tokwawan Road. He was interviewed by Dectective Sergeant CHOI Kam-fai, No. 6727, later in the afternoon from about 3.30 p.m. to about 5 p.m.

30. In the course of the interview the Sergeant told him that he, D8, was under arrest because he, D8, together with other people entered the Luen Fat Mahjong School on the 22nd of November 1983 and chopped one, TING Ling-fat, to death and injured some six other persons with knife. Then the Sergeant administered the caution. D8 indicated he understood and asked the Sergeant to lend him the pen to write and sign his name. He wrote that he understood the caution. Then he wrote the following statement.

"In June 1983 at Tai Po Square, Tsuen Wan, I was chopped by the fokis of Luen Fat Mahjong School and received injuries on the head and back. They said that I had hit his younger brother. On November 15, 1983, my friend LAM Moon was also hit by the fokis in Luen Fat Mahjong School. I do not know the reason. Therefore, at 9 p.m. on November 22,1983, we gathered at Tai Mo Shan.. There were about 12 persons. There were two seven-seat vans and one private car. Upon arrival, we had a barbecue. When it was around 10 p.m. we went to the carpark at Lai King Estate to take some knives and started going to Luen Fat Mahjong School. When we arrived at the destination it was around 10.38 p.m. Then, we covered our faces with white cloths and we each held a sharp weapon. What I took was a water-melon knife. Some of the others held beef knives and some held water-melon knives. Then, we went into Luen Fat Mahjong School. Upon entering there, I saw there were a lot of people. Our friends then each. held 'a sharp weapon to chop the fokis who were at the Mahjong School. However, there was great confusion inside and I do not know if any customer was injured at that time, I was holding a water-melon knife and I chopped a foki of the Mahjong School. However, I was unable to hurt him for he wore too many clothes. Then I saw the friends who came with me - 'Sor Pou', LEUNG Yau-shing, CHIU Ming-cheung, 'Ah So' and others I do not know. Then we boarded a vehicle to go away.''

That is exhibit P19.

31. In the course of the trial counsel representing D8 alleged that D8 was questioned extensively before he was cautioned. In any event the cautioned statement made by D2 was shown to D8 so that he could write something similar. Having done that it was alleged the police produced a prepared statement and induced D8 to sign. Further, he was induced to write the statement at the dictation of the Sergeant. D8 elected not to give evidence. Again there was no evidence to substantiate these allegations.

32. Having regard to the aforesaid circumstances the evidence  against each accused in respect of his individual participation is contained in his own cautioned statements. The complaints raised by all the appellants centred upon misdirections as well as the issue of admissibility of their respective statements.

Grounds of Appeal (i) Re all appellants

33. One of the grounds of appeal is common to all the appellants. The complaint is that there is a fundamental misdirection on the standard of proof. The trial judge in his direction on this issue said as follows at page 521:

"There is a burden on the prosecution to prove every element of these charges and it must do so beyond a reasonable doubt. It cannot prove that to 100% certainty, but it must be beyond a reasonable doubt. In, other words, you must be sure."

It is contended that the sentence "It cannot prove that to 100% certainty." is wrong and objectionable. In support of this contention the case of YEUNG Kuen-chi v. The Queen ⁽¹⁾ was cited. In that case a similar direction was criticised by another division of this Court. The ratio in that case is that the words "certain" and "sure" are synonymous; and that to tell the jury that "the prosecution cannot prove the guilt of an accused to 100% certainty although the jury must be sure'' is to confuse the issue. The phrase confuses the jury in the sense that the prosecution need not satisfied them to 100% certainty and yet they must be sure. My brother Barker who delivered the judgment of the Court in that case said at page 4:

"It is with these principles in mind that we approach the instant case. Mr. Dale, for the Crown, argued that apart from the initial direction as to the standard of proof to which we have earlier referred, the Judge in later passages of the summing up and in relation to specific issues states that the jury must be sure, or satisfied beyond reasonable doubt, and that therefore, taking the summing up as a whole, the jury could be in no doubt as to what the prosecu-tion had to prove.

        We entirely accept that the summing up does have to be read as a whole. But the initial all-embracing and, as we held, incorrect direction as to the standard of proof was the umbrella beneath which all subsequent directions sheltered and such directions were subject thereto,"

34. Besides the case of Yeung ⁽¹⁾ there had been other cases before this Court on the same point. Emphasis in all subsequent cases including the case of Yeung ⁽¹⁾ indicated that the direction must be looked at as a whole. Thus, in the case of The Queen v. NGAN Chun Yee & Others ⁽²⁾ (a case heard subsequent to Yeung's Case ⁽¹⁾), the learned Chief Justice giving the judgment of another division of this Court said at page 4 as follows:

In another case, The Queen v. LEE Yuk-wah & Other ⁽³⁾, my brother Kempster who delivered the judgment of this Court held that a direction to the effect that the jury "need not be certain in a mathematical sense" was not necessarily fatal provided that the judge told the jury that they have to be beyond reasonable doubt and before they could convict. No useful purpose will be served to cite every single one of the subsequent cases. Suffice it to say that the direction must be looked at as a whole. On this point all the divisions of this Court are unanimous.

35. It the present case the direction following the phrase "it cannot prove it to 100% certainty" was clarified immediately by the direction 'but it must be beyond a reasonable doubt". In other words, you must be sure, which is clear ad self-explanatory.

36. Dealing with the accused individually, the trial judge put the evidence against each accused and their defence separately. In respect of D1 he said at page 532 of the transcript:

"Now, the 1st defendant has not given evidence as is his right. He has nothing to prove. He is entitled to sit back and invite the prosecution to prove the case beyond reasonable doubt against him."

After he put D2's case he said at page 538 as follows:

"To convict in the case of each defendant, you must be sure that the prosecution evidence is essentially true.'

Dealing with the 3rd accused he said:

As to the 4th defendant he said at page 542:

"If you doubt the police evidence and think that the 4th defendant may be telling the truth, then you will, I'm sure, acquit him on all counts."

After he put the case of the prosecution and the defence relating to D7 and D8 he said at page 552:

"There it is, members of the jury. I ask you to consider the case against each man separately, remembering that the burden of proving each element of these counts is on the prosecution and it must do so beyond a reasonable doubt.''

37. We are of the opinion that the direction given by the judge as a whole made it abundantly clear that the jury had to be satisfied beyond reasonable doubt as to the guilt of each of the accused separately before they could convict him. In this connection it is pertinent to observe that the same general direction was given in respect of D5 and D6 on the   indictment and they were both acquitted by the jury. We are satisfied that despite the unhappy phrase of "10% certainty" the jury were clear in their mind that they could convict only if they were satisfied beyond reasonable doubt as to the guilt of each of the accused. This general ground of appeal must, therefore, fail.

38. There are other particular grounds relating to each of the appellants. We shall deal with them separately in the order that counsel addressed us.

(ii) Re D1's appeal

39. Mr. Sedgwick who appeared in this Court on behalf of D1, D7 and D8 first advanced the particular grounds relating to D1. It was contended that there was no admissible evidence that D1 aided and abetted the offence. 'The only evidence against D1 was contained in his cautioned statements. In these statements D1 admitted taking one Sai Wah to the Luen Fat Mahjong School, the scene of the armed attack on the 22nd of November 1983. Counsel also complains that that part of D1's statements which he said Sai Wah told him (D1) on the 23rd of November 1983 he (Sai Wah) took part in the attack was hearsay evidence and, therefore, inadmissible.

40. In addition, another piece of inadmissible evidence was allowed to creep in when D6 was cross-examined. In one of his answers D6 said that the Sergeant who took his(D6) statement told him that D3 was Sai Wah. When he directed the jury the judge never told the jury to ignore such inadmissible evidence. On the contrary, at page 523, when he directed the jury that cautioned statement by one accused was never evidence against his other co-accused he went on to say that evidence given in court could be evidence for or against another accused. The trial judge directed the jury in the following terms:

"Now that rule does not apply to the evidence of any of the defendants. Those who have given evidence, their evidence amounts to evidence both for and against all the other defendants."

In the circumstances there is a danger that the jury could have adopted the wrong approach by identifying Sai Wah as D3 and by accepting the inadmissible part of D1's statement or D6's answer in cross-examination that Sai Wah took part in the attack. If such inadmissible statements were taken away from the jury, there would be no evidence that Sai Wah took part in the attack at all. This is so because even D1's own cautioned statement that Sai Wah admitted he took part in the attack could never be evidence against D1.

41. In Surujpaul and Dick v. The Queen⁽⁴⁾ the Privy Council allowed an appeal on this very same point. Lord Tucker said at page 1056:

"A voluntary statement made by an accused person is admissible as a 'confession.' He can confess as to his own acts, knowledge or intentions, but he cannot 'confess' as to the acts of other persons which he has not seen and of which he can only have knowledge by hearsay. A failure by the prosecution to prove an essential element in the offence cannot be cured by an 'admission' of this nature."

42. Mr. Cross, counsel for Crown, admits that the part in exhibit P1 which referred to what Sai Wah told D1 was hearsay evidence and, therefore, inadmissible. He contends, however, that there was sufficient justification for this Court to apply the proviso or order new trial.

43. At the other end of the scale counsel for D1 contends that the evidence is so tenuous that we should not order a new trial. In view of the course that we have decided to take, the less we say on the evidence in detail the better. Suffice it to say that having considered the matter we feel that in the interest of justice, there should be a new trial in the case of D1.

(iii) Re D7's appeal

44. The perfected grounds of appeal filed on behalf of D7 are contained in a document which is more in a nature of a skelton argument than clear and precise grounds of appeal. However, counsel did in his submissions before us separate them into several points of complaint. The first point is an objection taken to the direction of the judge at page 549 of the transcript. Dealing with the allegations made against the police by D7's counsel he said that if the jury found the police evidence unconvincing or if the wording of the cautioned statement made them suspect that it was not a genuine confession they were fully entitled to come to that conclusion. He then said:

"But all the answers are in the 7th defendant's writing, and if you find they are true or sub-stantially true, then it means the 7th defendant was a member of the joint enterprise; he was at the doorway in support, but not taking any active part in chopping the inmates of the mahjong schoo.

45. It is argued that in so directing the jury the judge had usurped their function. Counsel contends that where the primary facts are not in dispute it is usually necessary in order to reach a verdict that inferences should be drawn from those facts. See Phillips J. in Martin ⁽⁵⁾ at page 284. Other cases cited only go to support this proposition which must be correct in law. In the present case, however, the facts in dispute were the voluntariness and the truthfulness of the cautioned statement made by D7, exhibit P17. Having admitted the statement the judge did leave the jury to find whether the statement is true. In exhibit P17 D7, answering one of the questions, said:

"On that night, Wa Chai asked me to wait for him at the Loong Wah Theatre Light Bus Stop; he didn't tell me what the matter was. At around 10.30, Wa Chai asked me to get on board a vehicle and I was given a knife, a mash (or mouth cloth) and. hand gloves and together we went to beat up somebody at a mahjong school. I just stayed at the door way but chopped nobody."

When asked what he meant by beat up somebody, he said in answer "To chop somebody with knife." Later he said:

"I was inside the mahjong school by the door; I was the last one to get in and they already finished chopping people and therefore I fled with them without chopping anybody."

These are admissions of facts. They can only mean that he went in support of others to chop somebody. We are of opinion that there was nothing wrong in the judge's direction on this point.

46. The second complaint is that the judge failed to direct the jury to consider whether D7 was aiding and abetting. It is contended that there was no evidence of any encouragement on the part of D7. The best answer to this complaint is to be found in D7 aforesaid statements. Having regard to the contents of his admissions, to say that D7 did not encourage the others is turning one's face from common sense. D7 admitted that he took such steps as to taking up arms and masks and going together to chop somebody. It was an admission of fact from which no other inference but guilt could have been drawn. It would have been better, of course, if the jury were asked: "With such admissions what would have been your conclusion?" We are satisfied that even if asked the jury inevitably would have come to the same conclusion. Had this been a misdirection, and we find none, we would have had no hesitation in applying the proviso.

47. The third complaint is the judge's use of the terms "true" or "substantially true" in. the same passage at page 550. Counsel says that "substantially true" does not mean that it must be wholly true. In that event, the jury may be considering it would be sufficient to convict D7 if the statement was substantially true. However, in making this remark the judge was referring to the contents of the statement as a whole. One must refer to his general direction as a whole. At page 523(R) the judge said

"Now, members of the jury, you must decide if each cautioned statement contains the truth, or the partial truth, sufficient for you to infer, firstly, that the maker of it took part in an unlawful enter-prise at the Luen Fat Mah jong School.

        If you are not satisfied about that, that is the end of the case. You don't have to look at anything else. You will acquit the defendants. You must, first of all be satisfied that they had agreed to take part in this unlawful enterprise."

In so directing the jury the judge was telling the jury that they could accept fart of the statement, exhibit P17, and reject part of it But he left the' decision to the jury. Indeed, at page 521, in his general direction, he told the jury as follows at letter (D):

"You must decide if they are reliable, whether they have told the truth. You don't have to accept the whole of a witness's evidence. You may decide that he is telling the truth about certain matters and not about other matters. Some people are more reliable than others and more reliable about certain aspects of their evidence than others."

There is no substance in this complaint.

48. The fourth point is yet another complaint is to misdirection. It is contended at page 521(H) that the judge misdirected the jury by saying:

"Now,. having reached conclusions of fact, you are entitled to draw inferences from those facts. As you probably know, an inference is a deduction of fact that can logically and reasonably be drawn from another fact or group of facts that have been proved. On the other hand, if you find that there are two reasonable inferences that can be drawn from a proved fact, then you should draw the one that is more in favour of the defence."

Counsel complained that it was wrong for the judge to direct the jury to draw logical and reasonable inference. The judge should tell the jury to draw inferences only if it is the one and only correct inference. The answer to this criticism can best be found in Mr. Macrae's submission on behalf of D2. He very properly and fairly concedes, in an eloquent and succinct manner, that the words "logically" and ''reasonably'' are otiose. If the inference is illogical or unreasonable, it ceases to be a proper inference. What the judge should say is that the jury may convict only on compelling inference. However, he concedes that the, judge very fairly said in the same passage "If you find that there are two reasonable inferences that can be drawn from a proved fact, then you should draw the one that is more in favour of the defence". It is a matter of choice of words. We do not feel that this passage is prejudicial to D7's case and we do not; find the fourth complaint a valid criticism.....

(iv) Re D8's appeal

49. As regards D8, the only other ground of appeal was that the judge should have held that D8's cautioned statement was involuntary or not taken in the way the Crown alleged. Nothing turns on the contents of the state-ment. Mr. Sedgwick for D8 concedes that if the statement were admitted and held admissible,' there would be sufficient evidence for the jury to convict D8.

50. Counsel contends that the cautioned statement should not have been admitted. In the course of the voir dire held in respect of D8's cautioned statement, the Sergeant who took the statement repeatedly denied that he had questioned D8. The Sergeant also said that soon after he wrote the preamble, D8 immediately asked to borrow his pen to write the state-ment. There was also an allegation of unlawful assault upon P8. Another complaint was that the cautioned statement made by D2 was shown to D8 so as to induce him to write a similar statement. The judge heard the evidence. He also heard the agreed fact that D8 was examined on the 20th of February 1984 by Dr. Yip. In the course of the examination D8 made no complaint. The doctor found no sign of recent injury on him.

51. Two further arguments were advanced. Counsel contends that if one looks at the contents of the statement they seem to be completely out of style of a Yeung person like D8. Further on the arrival of D8's mother the Sergeant asked D8 Whether he had any complaint. D8's reply was that there had been no threat or inducement and that he made the statement voluntarily.  It is suggested that this Court has jurisdiction to reverse the finding of the trial judge if he had made a wrong approach to a problem or had considered irrelevant factors or give them a weight that was gravely out of proportion to their true value. LEE Chun-chuen v. The Queen⁽⁶⁾.

52. In any event counsel repeats that the evidence indicates that the statement was taken not in the precise way alleged by the police. He says that even if D8 is not telling the whale truth about the statement being dictated to him, yet by its style and character the statement was compiled by the police from various answers. In short, the statement was not taken in the way as the Sergeant asserted. It is submitted that if this Court thinks it is possible that that had hapened then it is up to this Court to interfere. In support of his proposition counsel cites the case of LI Kar-wah and another v. The Queen ⁽⁷⁾ when the learned Chief Justice gave the judgment of the Court. He said at page 579:

"We think the onus of proof necessarily involved the prosecution satisfying the magistrate that the statements were made in the manner in which the police officers positively affirmed that they were made, because if the police officers' evidence as to that was not believed that was sufficient to raise doubts as to the voluntary nature of the statements even though the magistrate did not go to the full extent of accepting that the statements were obtained in the manner in which the accused themselves said they were obtained. Unless a judge or magistrate is satisfied that he has been told the truth as to the method employed in taking a statement how can he be certain that the method which was employed did not involve a measure of inducdment?"

53. We have no doubt that counsel is correct in law However, the police maintained, from beginning to end, that there had been no such questioning. In his ruling the trial judge said:

"I accept the evidence of the police officers who took the cautioned statements and I reject the allegations made by the defendant."

This is a finding of fact. There is nothing to indicate that the judge has given improper weight to or considered wrong materials. His finding is supported by material evidence. We are not disposed to interfere with the judge's ruling

54. Having regard to all the circumstances, the appeal by D7 and D8 ''must be dismissed.

(v)Re D2's appeal

55. Counsel for D2 does not seriously challenge the judge's direction regarding the jury's approach to the drawing of inferences at page 521 where the judge said:

"Now, having reached conclusions of fact, you are entitled to draw inferences from those facts. As you probably know, an inference is a deduction of fact that can logically and reasonably be drawn from another factor group of facts that have been proved. On the other hand, if you find that there are two reasonable inferences that can be drawn from a proved fact, then you should draw the one that is more in favour of the defence.

We have dealt with this point.

56. Counsel, however, canvassed two other grounds. The first is that the judge did not put the defence case fairly to the jury. It is argued that if the jury gave weight to D2's cautioned statement, they could properly and lawfully convict D2. Equally they could have acquitted D2 if they accepted his evidence and rejected the statement. Yet another option was that they could take the view that, even though D2 knew some-thing sinister was about to occur, the cautioned statement is not true. In the circumstances, the question of joint enterprise was crucial. The judge must be scrupulously fair and put the defence case in full. According to D2's evidence in court, his home was searched in his absence. His brother, AU Ming-kong, gave corroborative evidence on this point. When he returned home he was searched again. A small pocket telephone book was taken away from him by the police. The police officers who went to locate D2 denied the allegation. Inspector Chan, who was one of the officers who went to his home admitted searching D2's home. According to D2, he was mal-treated when he went to the police station. By that time the police already had his telephone book with them. D2 denied categorically that he himself produced the pocket telephone book in the course of the interview. Counsel submits that in view of Inspector Chan's admission it would at least support part of D2's allegation.

57. In his direction to the jury, the judge did not refer to Inspector Chan's admission or to the corroborative evidence of AU Ming-kwong. Instead, he commented adversely on the defence evidence. In short, counsel contends that the summing-up was unbalanced.

58. The second complaint is that the judge's general direction on joint enterprise is wrong. At page 527, the judge said as follows:

"Where two or more persons embark on a joint enter-prise such as this, each is liable for the act of the others which was done in pursuance of that joint enterprise. Even if unusual or unforeseen consequences arise from the execution of the enterprise, all are liable for the consequences.''

It is argued that the use of the. term. unusual or unforeseen consequences in the context is wrong. Even if the judge gave a correct direction later in his summing-up, the damage had been done and he failed to correct himself expressly. Counsel submits that any correction to be effective must be in clear and unequivocal terms. Regina v. Moon⁽¹⁰⁾; The Queen v. CHUNG Shi-shun ⁽¹¹⁾.

59. As to D2, counsel for the Grown distinguishes the case of Moon⁽¹⁰⁾ and said that an that case the judge gave his misdirection repeatedly. Salmon L.J. said at page 1706:

"Although much of the summing up cannot properly be criticised, the assistant recorder did again and again in the course of the summing up tell the jury in fairly plain terms that before they could acquit the defendant on the ground that he acted in self-defence, he had to satisfy them on the balance of probabilities that that was so."

He continued (at page 1070):

"The fault can be put right, although it may be difficult to do so. This court would accept the second half of Mr. Rawley's proposition that on the assumption that it can be put right, as this court thinks that it could have been, it can only be put right in the plainest possible terms. It would be necessary for the assistant recorder to repeat the direction which he had given, to acknowledge that that direction was quite wrong, to tell the jury to put out of their minds all that they had heard from him relating to self defence up to that moment about the burden of proof and then in clear terms, which would be incapable of being misunderstood, tell them very plainly and simply what the law is."

60. Dealing with the second complaint first, we accept that the above-mentioned passage in the summing-up is wrong. However, immediately following this paragraph the judge said in the next sentence at the same page of the transcript (at 527):

"But if one of those people departs completely from what has been agreed, then the others, are not liable for, the consequences."

The passage of wrong direction and the sentence just cited appear to contradict each other and might cause confusion. However, the judge immediately proceeded in the next two and a half pages of transcript to give a correct direction. He said at page 528:

"First, was there a common unlawful purpose? For example did a group of men, including the defendant whose case you are considering, agree to fight the fokis of the Luen Fat Mahjong School? Such an agreement may be express or implied and, of course, it may be inferred from the cautioned statements.

        If you decide the answer is 'yes', ask your-selves: was there a wounding or killing with intent to cause grievous bodily harm by one of the group who actually were in the mahjong school?

        The next question is: did that particular defendant who was outside - whose case you are considering - assist in the execution of the common enterprise by acting as a look-out, or by driving the car to the scene?

         If the answer to those three question is 'yes', you then must consider the state of mind of the defendant who's outside the mahjong school, or, in the case of the 1st defendant, who drove the car.

         And the test is this: did that particular defendant contemplate - foresee that in carrying out the common unlawful purpose - that is the fight in the mahjong school - one of his partners in the enterprise might use a knife with the intention of causing really serious bodily harm? Because such a person could foresee such a result without necessarily intending it.  If the use of the knife was an act contemplated as a possible incident of the originally planned venture, he is also guilty of the offences.

        On the other hand, if it was not even contemplated by that defendant that serious bodily harm would be intentionally inflicted, he is not guilty."

61. The present case is further distinguishable from the case of The Queen v. CHUNG Shi-shun ⁽¹¹⁾. McMullin V.-P. giving the judgment of the Court in that case referred to an earlier misdirection which was not properly and adequately corrected. He cited a correct direction of the trial judge some time later in his summing-up and said:

"That was on the face of it a correct direction. Unfortunately it comes immediately alter a passage in which some distinctly confusing directions were given concerning the movements of the parties, which obviously had to some extent, caused trouble to the judge himself. And it comes after several other pages of directions of - which no complaint is or can be made - but some considerable time after the initial misdirection."

In the present case the misdirection in the earlier passage was immediately neutralized by the words "But if one of those people departs completely from what has been agreed, then the others are not liable for the consequences." And then this was followed immediately by a clear and correct direction which has been repeated three times. Finally the judge said at page 530:

"You may come to the conclusion that the cautioned statements correctly place the defendants at the scene of the crime but are not true concerning the mention of knives, either because the police are responsible for mentioning knives or because the defendant has falsely written about the knives for one of the reasons advanced by the defence. But although you could find manslaughter in those cir-cumstances, I suggest that if you come to that conclusion it would be far safer to reject the cautioned statements altogether and to acquit the defendant rather than to bring in a manslaughter verdict on those grounds."

62. In all the circumstances we are of the opinion that there was no serious misdirection. Even if there was one at all it was instantaneously corrected in clear terms.

63. As to the first complaint, the judge having summarized the case against D2 also gave a summary of his evidence in defence. This included the following comment on D2's evidence at page 535:

"He says he was asked to empty his pockets, including his wallet, his identity card, some cigarettes, visiting cards and a telephone notebook, and the police kept all these things.

        You will remember that the police say that they returned them to him because they were only looking for weapons.

        Now, you may think it really doesn't make much difference in this case whether they did or not. It is not disputed that the telephone numbers in the statement came from his little book. Its only significance is if you find that Inspector CHAN and the other officers are lying about this and you would ask yourselves why should they lie about a matter of this kind."

64. This direction will put AU Ming-kong's corroborative evidence into insignificance. Later the judge said at page 538 as follows:

"However, if you think it possible that the police behaved in this manner and this is how the cautioned" statements came into being, then you should attach no weight to them; otherwise his statement amounts to an admission that he took part in the attack and actually participated in chopping.

        Now, don't convict the 2nd defendant just because you don't believe his evidence, either about what he was doing outside the Luen Fat Mahjong School or about what happened in the police station.

       A defendant who gives evidence may lie and exaggerate in the witness-box because he feels that the truth will not be believed. He may be scared by strange surroundings in court. He may go overboard and tell a tale that's not true or is not wholly true and, therefore, is disbelieved by the jury.

        In that case, just treat his evidence as though it has not been given at all, and that applies to every defendant who has given evidence.

        To convict in the case of each defendant, you must be sure that the prosecution evidence is essentially true.

65. We are of the opinion that the judge had put the substance of D2's case to the jury. A judge is not barred from making strong comments provided he leaves the issues of fact to the jury. In the circumstances the appeal by D2 is also dismissed.

(vi)Re D4's appeal

66. Now we come to D4. The only other ground canvassed on his behalf is that the judge directed the jury in such a way as to suggest that D4's admission amounted to going to the scene in support of the attack. The judge told the jury at page 542 of the transcript:

"If you find the statement is true, then the defendant appears to have played a minor part in the escapade but nevertheless he was armed with a knife and was there at the doorway of the mahjong school in support, if required, though he did not take part in the actual attack."

67. It is argued that all the admission contained in D4' s statement (the only evidence against him) is that D4 had a knife, knew the purpose of the journey and alighted from the van. The above-mentioned direction took away the function of the jury to draw inferences of fact. The inference might well have been that D4 went as a bystander. 'The term "to support" requires acts of encouragement which may be intentional or unintentional. Mere presence does not amount to aiding and abetting. See Clarkson & Others ⁽¹²⁾. Thus the question of intent is a matter for the jury who must apply the subjective test. The encouragement must be a wilful one. See also Jones & Mirrless ⁽¹³⁾.

68. In Martin ⁽⁵⁾ It was held that except in case where the primary facts were the only matters in issue the judge should leave the jury to draw their own conclusions. In the present case, the learned judge began by giving a general direction in the following terms at page 520.

"Any view that may have been expressed by counsel ' on the facts, again, you may accept or reject. And the same in the case of my summing-up. If you agree with any suggestion I make, well, so much the better. If I leave anything out of my summing-up which you consider is important, then it's your view that counts, and not mine."

69. Digressing a little, counsel for D2 also takes exception to this sentence, namely "If you agree with any suggestion I make, well, so much the better". We take the view what the judge meant was that if the jury should agree with him the jury would not have to waste more time and thus it would be better. Counsel for D2 agrees that nothing much turned on this complaint.

70. Going back to the aforesaid direction (at page 542) complained of, the judge was expressing an opinion when he said "It appears ....'' The basic objection, however, is to the terms "in support", '!if required' and "at the doorway". In view of the order we are about to make we shall not analyse the significance of the contents of D4's statement. It is sufficient to say that the question whether D4 was at the doorway and/or there in support is a matter of inference for the jury. No question had been asked by prosecuting counsel nor any explanation given by defence as to why D4 went along with the gang in the van. Even if they might find the cautioned statement to be true this has not been left to the jury. Mr. Hingorani submits that in the circumstances there should be a new trial. We agree. Accordingly we allow the appeal by D4, quash the conviction and order a new trial.

(vii) Re D3's appeal

71. The other particular grounds raised by D3 relate to the admissibility of his cautioned statements, exhibit P4 and P5. Firstly, it is contended that the judge-erred in admitting the statements as being voluntary. When D3 was arrested and cautioned, he said: I myself do not want to say anything, I will let my solicitor say it." - exhibit P3.  The next day, D3 was interviewed by Inspector LEE Sze-kwong. In the course of the interview D1's cautioned statements were shown to him in an unedited form. At the trial the judge held that a great portion of D1's statements should not be admitted. Counsel for D3 argued that it was wrong of the judge to admit D3's cautioned statements (exhibits P4 and P5) which were made after D3 was shown the unedited statements by D1. We have, in the course of this hearing, obtained the unedited version of D1's statements (exhibits P1and P2). As regards exhibit P1, only a very small portion was expunged after the voir dire. Such expunged portion, even when read, did not affect D3. The objectionable portion in exhibit P1 is when D1 said as follows:

"In the morning of the 23rd of November Sai Wah paged me. Later I telephoned him. He told me that they had gone into Luen Fat to chop people the night before. He entered Luen Fat and saw the friends of LAM Moon chopping people. He then went out and did not participate in the chopping."

We have held that that portion of D1's statement is hearsay and, therefore, inadmissible against D1. We shall not repeat the reasons therefor. Cross-serving of cautioned statements is permissible. The obvious purpose for serving the cautioned statement of one accused on his co-accused is to obtain the latter's reaction. We see nothing wrong in that. Further, at the time when D3 made exhibit P4, there is nothing in the whole of exhibit P1 to link the name "Sai Wah" with D3. After exhibit Pl was shown to D3, he said: "Fuck, there is a lot of things which I don't fucking know." D3 was then immediately cautioned. After that he said:

"I have to say something... Ah So mentioned in his statement that after he convey me and Tai Shing  by vehicle to the Grand Theatre, he then left. In fact, he did convey me, Tai Shing and Ah Yin by vehicle to the Mahjong School. At that time there were three vehicles there and ours was the last one. Before I went in, the rest of the men had gone into it. When I went in, people therein were in a mess. I tried to chop a person with the knife but he warded off with a wooden chair. I could not chop him nor injure anybody. I then heard somebody saying to leave. I immediately got on the vehicle and left. The others seemed not to have said so. However, I don't know a lot of other things."

72. Having regard to the circumstances we cannot say that the inadmissible portion of exhibit P1 could have induced D3 to make an incriminating statement. The incriminating statement was made after caution and even before exhibit P2 was served upon him. The serving of exhibit P2 on D3 resulted in nothing of more significance. Thus the argument that D1 was induced to give his statement in exhibit P2 should not affect the admissibility of exhibit P4 which was made before exhibit P2 was shown to D3. By the time D3 was shown exhibit P2, he had already admitted his own involvement.

73. The second argument was that even if D3's statements were all voluntary, the judge should have exercised his discretion to exclude all the statements by D3. As we understand it the argument advanced is as follows: It starts with the manner in which the police obtained D1's statements (Exhibits P1 and P2). Counsel draws our attention to various conflicts in the police evidence relating to the circumstances in which exhibits P1 and P2 were obtained. He also contends that the judge even had doubts in Superintendent Whitley's evidence when he gave a ruling in respect of the cautioned statements of the various accused. In the course of giving his ruling, the judge said at page 666 of the transcript:

"I accept the evidence of the police officers who took the cautioned statements and I reject the allegations made by the defendants.

        I find that they were all made voluntarily and are therefore admissible, except in the case of the 1st defendant, the passages after the interview with his solicitor, I accept the evidence of the solicitor that the question of being a Crown witness was discussed with Mr. Whitley, and Mr. Whitley's evidence is clearly wrong when he says that this did not happen, and it is in my

view a distinct possibility that this question of being a Crown witness which was mentioned to the defendant by his solicitor was operating on his mind when he made the second part of the statement, so that will be from page 8 on the English translation, at the end of the 1st paragraph."

74. Counsel argues that as Superintendent Whitley was in overall charge of the investigation, there must be a doubt as to the fairness in the police approach to the whole matter. As such, exhibits Pl and P2 should be excluded and similarly exhibits P4 and P5 should also be excluded because D3 was induced to give them as a result of being shown exhibits Pl and P2.

75. As regards the admissibility of exhibits P1 and P2, the judge had heard evidence relating to the issue of the admissibility. He delivered his ruling at page 666 as aforesaid. He heard all the evidence from the prosecution and the defence. He fully realized the discrepancies. He accepted the prosecution evidence. That is the end of the matter. If the judge erred in considering the evidence of Superintendent Whitley, he erred in favour of D1. A perusal of the transcript reveals that Superintendent Whitley never denied the possibility of D1 being used as a prosecution witness discussed between him and Mr. Pang, D1's solicitor. Superintendent Whitley merely denied that he himself had raised the issue. This is quite different from the judge's ruling when he said that Super-intendent Whitley denied that this issue had been discussed.

76. Counsel for D3 has to abandon the third point, namely that the judge should have directed the jury that before they place any weight on exhibits P4 and P5 they should consider the circumstances in which these statements were taken. This is only proper in view of the fact that Superintendent Whitley's evidence was read in Court without challenge and neither D3 nor Mr. Pang, his solicitor, gave evidence on the general issue.

77. In any event, the judge, having referred to the contents of D3's cautioned statements and the allegations against the police witnesses in cross-examination, said at page 540:

"But if you do not accept the police evidence, if you have doubts about the genuineness of this confession, your finding will be reflected is your verdict no doubt."

78. The fourth point is merely an extension of the third. It complains that the judge failed to direct the jury as to the contents of exhibit P3. This the judge did in his direction at page 539, where he referred to the various allegations made by D3. The case of LAM Yip-ying⁽¹⁴⁾ only re-affirms the principle that a trial judge has his residual discretion to exclude even a voluntary statement which is obtained by oppressive conduct on the part of the police. Having regard to the evidence of the present case, Lam's case ⁽¹⁴⁾ is of no assistance to D3.

79. Finally, it is argued since the judge did exercise his discretion to exclude statements or part of a statement of the other co-accused, he should have done the same in respect of exhibits P4 and P5. Counsel cites in support of his contention the case of LI Kar-wah and another v. The queen ⁽⁷⁾. It is contended that there was impropriety in respect of the treatment of D1 by the police. This would taint their treatment or cast doubt as to their treatment of D3. We are not satisfied on the evidence that D1 was in any way mal-treated and that should be sufficient answer to this final complaint.

80. There was no similarity in the character and style of the statements by D3 to those of D1 and D6. We cannot see how LI Kar-wah's case ⁽⁷⁾ could assist D3. Before he made his initial statement (exhibit P ) he was cautioned when the Sergeant told him, D3, that he was under arrest. As to exhibit P4 D3 was cautioned again immediately after he said something which indicated that he might incriminate himself. There is no substance in the grounds advanced by D3. Accordingly, his appeal is dismissed.

(1)    Crim.App. 266 of 1984

(2)    Crim.App. 137 of 1984

(3)    Crim.App. 467 of 1984

(4)    (1958) 1 W.L.R. 1050

(5)    (1973) 57 C.A.R. 279

(6)    (1963) 1 A.E.R. 73

(7)    1970 H.K.L.R. 572

(10)    (1969) 1 W.L.R. 1705

(11)    Crim.App. 530 of 1984

(12)    (1971) 55 C.A.R. 445

(13)    (1977) 65 C.A.R. 250

(14)    Crim.App. 8 of 1984