HKSAR v. NG CHUN HING, GARY and Others

IN THE COURT OF APPEAL

1996, No.696
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. In this matter six defendants faced 13 charges. The applicants were D1, D3, D4 and D6 at trial. There were nine charges of assault occasioning actual bodily harm each was brought against all of the accused. There was one charge of wounding with intent against D3 and D4 and there were charges of claiming to be a member of a triad society against D3, D4 and D6.

2. The incidents which gave rise to the charges occurred at the California Red Karaoke Box situated on the 9th floor of the In-Square, 311 Gloucester Road, Wan Chai. A party of off duty police officers had gone on the evening of 22nd March 1996 to celebrate the birthday of PW4. They occupied Room 48 arriving at about 11.45 p.m. on the 22^nd. At about 4 a.m. on the 23^rd, PW4 and PW8 were involved in what seemed to be a minor incident in the toilet of the karaoke establishment when the toilet door hit an unknown male who appeared to be irritated. The police party having paid the bill were leaving Room 48 at about 4:10 a.m. when they saw three to four male persons, including the unknown man, standing at Room 46 which was opposite to Room 48. One of those persons told the police party not to go and asked where they belonged. At this point five to six male persons rushed towards the police party from a corridor. One of them, who was said to be D4, said, "I am a bouncer here, I am 'Lo Sun' and the follower of 'Yiu Hong'", and another who was said to be D6, said that he was " 'Ah Lung', a bouncer and a member of 'Lo Sun' ". Before anything further was said, the males began to assault the police party. The officers declared their police identity but this was ignored. PW1 alleged that D5 punched him on the back of the head and that D3 and D4 pulled him into Room 46 where D3 broke a glass and stabbed it onto his face. PW2 said that several males, who included D4, punched him on the head and then kicked him using their knees. He said that he was chased into the lobby of the karaoke and that he fell to the ground whereupon D6 kicked him in the head. PW1 said that D1 and other males beat him and kicked him in his chest and stomach and that he then fell to the ground and lost consciousness. PW4 said that he was punched on his left eye and kicked by D2. He said he was also hit on the back of his head by D6. PW5 said that D4 and two or three other men beat him. PW6 said that he was punched by D4 in the face. PW7 said that he was punched several times on his body by D1. PW8 said that he was punched on the face by D3 and PW9 said he was punched and elbowed by D2. It seems that, as the fight was ending, Uniformed Branch officers arrived and D1, D2, D3 and D4 were apprehended.

3. The applicants pleaded not guilty and were convicted after trial before Deputy Judge Jenkins. They now appeal against those convictions.

4. Before us Mr. Hoosen represents D1, D3 and D4 and Miss Moosdeen represents D6.

5. We turn first to consider Ground 2 of Mr. Hoosen's grounds. This ground was also a ground of Miss Moosdeen who adopted the arguments of Mr. Hoosen thereon. The ground reads as follows:

"2. There was (and remains) a grave suspicion of concoction of evidence by PW1-PW10 in view of the following:

(i) the victims had made earlier statements very shortly after the incident according to DSPC 1793 (PW11) who stated in his own witness statement and in his Investigation Report that he had himself taken a statement from PC 13653 (PW8), and who further testified that he had instructed and seen the victims writing statements, none of which were disclosed to the defence;

(ii) PW10 (PC 49952) gave clear evidence that on the morning after the incident at around 9 am - 10 am he himself and other victims had made witness statements in the briefing room, and the statements were handed to the CID.

(iii) the victims had had discussions about the incident, access to police records and Pol 159 forms containing names and ages of the Appellants, and description of clothes worn by the Appellants, prior to making (further) statements some 17 hours after the incident (which were disclosed);

(iv) the learned trial judge erred in dismissing the evidence of DSPC 1793 (PW11), by an unwarranted finding that he was mistaken and/or forgetful; (see pp 31-33), when DSPC 1793's own statement/investigation report had not only described the victims writing statements but also made brief mention of the contents thereof.

(v) the learned trial judge's finding that the discussions amongst the victims could be nothing more than innocent discussions (p.32) was flawed and was or might have been influenced by his unduly defensive attitude towards the victims, as illustrated by his comments such as what the victims 'would have wished' or 'hoped and thought' (p.29Q - p.30B) which were based on conjecture and not evidence."

Mr. Hoosen submits that there is grave suspicion for believing that at 7 a.m. on the morning of 23^rd, at least some of the ten officers involved, having arrived at the Wan Chai Police Station, made statements of the events at the Karaoke. It is submitted that these statements, although called for by the Defence, have never been revealed. Indeed counsel for the prosecution stated in terms that no such statements ever came into existence. It is submitted further by Mr. Hoosen that, if such statements came into existence, there must be a grave suspicion that they were very substantially "tidied up" before becoming the statements received by the CID officers on the evening of the 23^rd which were statements later furnished to the defence. There are, it is submitted, four particular matters which raise suspicion that this occurred:

1. The evidence of PW10 in which he had first admitted that he and others did make statements between 7 and 9 on the morning of the 23rd, which evidence, it must be said, he later retracted;

2. The evidence of PW11 that:

i) that some of the victims had made statements on that morning and that he had provided them with pen and paper so that they could do so;

ii) that he himself had taken a statement from one of the victims PC13653 (PW8) on that morning. (PW8 in his evidence repeatedly denied that this had occurred.)

3. The evidence of PW1 and PW2 from which it was clear that when they made their statements on the evening of the 23rd they were assisted by the investigating CID officers;

4. The commonsense consideration that police officers would have a ready appreciation, because of their training, of the need to set down their recollection of events, particularly confused events such as here occurred, as soon as possible after the event.

6. It is submitted that if doubts exist as to the truthfulness of the police officers with regard to the making of their statements, their evidence overall must be suspect and the convictions cannot be safe and satisfactory.

7. This matter, unfortunately, came to light in a somewhat roundabout way. The way in which this matter came to light was unfortunate. The first nine victims were not subject to any lengthy cross-examination in this regard. The matter may have been lightly dealt with as the defence was happy to proceed upon the basis that no statements had been made until some 15 hours after the incident which left the witnesses open to an attack upon the reliability of the recollections. The way in which it was touched upon when these witnesses were giving evidence can be illustrated by looking at the cross-examinations of PW1, PW2 and PW8. The following passage occurred in the course of cross-examination of PW1:

"Q. And officer, why did you not make your first record of the incident at 7 am or so when you arrived at Wan Chai Police Station, and delayed it till some 11 pm?

A. As I was injured at that time.

Q. So?

A. So I made a statement at a later stage."

The following passage occurs in the course of cross-examination of PW2:

"Q. Why did you not make any statement at 7 am?

A. Well, I was very tired and I was rather painful in my wound.

Q. So why do you not stay in the hospital.

A. My doctor did not instruct me to do so.

Q. Yes. The doctor find you not as seriously injured and not as painful as you assert, right?

A. Well, I was discharged but I was in great pain.

Q. I see. So at 1800 hours that day you did not feel any pain?

A. I did, but I had gone home and took a rest.

Q. I see. With whom did you give your statement?

A. I took it myself."

8. The following passages occur in the cross-examination of PW8:

"Q. Now, officer, after you returned from the hospital, did you meet up with an officer, DSPC 1793, and did you then -- did he then take down a statement from you?

A. No.

Q. Now, think very hard. And whilst he was taking a statement from him, another officer was taking a statement from a witness, Yip, Y-I-P, Kam, K-A-M, hing, H-I-N-G, who is a staff of the karaoke.

A. No, I don't know.

Q. Have you been provided with all the statements by you, either by yourself or taken by another police officer?

A. I have the copy of statement I made, but not taken by the others.

Q. Do you recollect, at any time, an officer taking a statement from you concerning the events that morning?

A. No, as far as I can recollect.

Q. You're sure about that?

A. As far as I can remember, no."

"Q. Well, if you can't assist us, that's all right. Now, after you went to the hospital and you returned back to the Wan Chai Police Station, did you -- I think you denied that you made a statement to DSP 1793, right?

A. That's right."

The matter only became a real issue during the cross-examination of PW10. He was being questioned as to what had occurred when he and some of the other victims were in a room in Wan Chai Police Station for two to three hours up until some time after 9 o'clock on the 23^rd. He was asked:

"Q. So did you write your own statement, using that time to write your own statement, try to write down whatever was still fresh in your mind?

A. No.

Q. So why not?

A. I thought that because I was not in good spirit."

This was a clear denial that a statement had been made in the morning. However the cross-examiner took up this matter again asking:

"Q. According to you, officer, in your experience, apart from making your own statement, what more would you be required to do? You were not in a good spirit to make your own statement, what more would you expect yourself to do?

A. My superior would need to see me.

Q. Yes? Won't take any longer than five minutes?

A. No, as my colleague said, maybe later we need to see our superior. Maybe we need to wait and then we would have to wait for a few hours.

Q. Now, Mr. Chung, did you go to the briefing room on the morning of 23 March at Wan Chai Police Station?

A. Yes.

Q. So what were you doing at that time in the briefing room?

A. I wrote a statement on the day.

Q. Right. You wrote a statement on that day.

A. Yes.

Q. So where is the statement then?

A. I have past (sic) it to the CID.

Q. Which CID you pass it to?

A. I don't know.

Q. 1793, Mr. Pang.

A. I don't know.

Q. So you can describe the look of that person you handed your statement to?

A. I can't describe him.,

Q. I see. So how many officers were inside that briefing room on that morning?

A. Are you referring to your group?

Q. Yes. First we refer to your group first.

A. All of us were there probably.

Q. And all of you were making your own statement, right, inside the briefing room?

A. Yes.

Q. And what about other CID officer, how many were there?

A. I did not pay attention if they were there.

Q. And do you notice that there was staff from the karaoke who were giving statements to CID officer inside the briefing room?

A. The staff of karaoke? No.

Q. No. Are you sure?

A. Yes.

Q. And did you see that a CID officer was taking a statement from PC 13653?

A. I did not pay attention.

Q. So how long did you take to write out your own statement on the morning of the 23rd?

A. About an hour.

Q. About an hour. Right. And do you know after you handed your statement to the CID officer, where did they keep them?

A. I don't know where they kept it.

Q. I see. Now, did you see your colleagues also handed their statement to the CID officers?

A. Some did.

Q. Some did, some didn't?

A. Some I did not pay attention.

Q. Fair enough. How many - did you pay attention, who had handed their statements to the CID officer?

A. One or two.

Q. Can you remember who they were?

A. I can't remember."

The witness seems here to be admitting that he and all of his colleagues were making their statements inside the briefing room on the morning of the 23^rd and that he handed his statement to the CID officer as did, to his observation, one or two others. Shortly thereafter the court asked Miss Cheng, who was appearing for the prosecution, about statements made on the morning of 23^rd March and she said:

"Well, according to your instructions there was, in that early morning in the police station, no statement either taken from the officers or they taking their own statement at all. So there's no way that the Crown could produce those documents because they were never made."

Mr. Chan, for D3 and D4, then said that the statement of DPC 1793 "categorically stated that involved injured persons and other officers attached to uniformed police made their own statement in the form of POL 154. I don't think he could be mistaken concerning this. He said he took a statement from the injured PC 13653." In consequence of this the Court indicated that DPC 1793 should be called. Because of this he was the next witness called (PW11). Counsel, later in the cross-examination of PW10, returned to this matter:

"Q. So when you wrote the statement in the morning, did you have the POL 159 with you?

A. Let me clarify one thing. I did not return any statement in the morning. I heard you ask me on the 23^rd - about the statement on 23^rd I made.

Q. I put it to you that you said you did make a statement in the morning.

A. Well, I heard you people asking me whether I returned the statement on the 23^rd. Well, I didn't say I returned the statement on the morning - in the morning.

I mean made a statement.

Q. Yes. It was also clear that after you make your morning statement, you went home and then the CID called again for another statement to be made in the afternoon, right? Yes or no.

A. At first I heard you saying to us on the 23^rd in the evening. Somebody did ask me to return a statement in the evening.

Court: So what do you mean by return a statement? How do you return a statement? What do you mean?

A. I meant I wrote out a statement.

Q. So officer, both my friends ask you making - about making a statement in the morning and it was after you made the morning statement you went home and the CID phoned and then you went back to the Wan Chai Police Station to make an evening statement, right? Very clear.

A. Perhaps I misunderstood the meaning of it?

Q. I put to you that is the situation.

A. Disagree.

Q. So why do you tell us that the CID called you and then you went back to give a statement?

A. that's right.

Q. That was the evening statement, right? You went back to give the evening statement, right?

A. Yes.

Q. So before that evening statement, there was a morning statement, right?

A. No.

Q. You clearly said that it was in a POL 154, right?

A. That's right."

9. In this passage the witness is clearly withdrawing his earlier admission that he made a statement in the morning and is suggesting that his answer to that effect was given because he had not understood the question.

10. PW11 was then called to give evidence. He said that he was the officer in charge of Team 5, Detective Team, Wan Chai and he had been in that position on 23rd March 1996 and had been sent to the California Red Karaoke on the morning of that day to investigate this matter. He said, in evidence in chief, that he had interviewed one of the victims PC 13653 that morning and made a record of the interview on a piece of paper which was, after the information was placed in a Pol 155, thrown away. Prosecuting counsel then asked what he knew about the making of statements by other victims on that morning. The following exchange occurred:

"Q. Now, after you came back to the police station, at any time did you see any of the injured persons or victims making their own statement?

A. I did not see them writing them, but about two or three of them asked for pen and paper and I supplied them with pens and paper.

Q. Now, who were the three who asked you for a pen and paper, were they victims or officers or who were they?

A. They were victims."

He went on to say that he did not actually see them making their statements and that none had given a written statement to him.

11. Under cross-examination this matter was again raised in the following exchange:

"Q. Have you asked them to make a statement in the morning of 23 March?

A. In fact, I did.

Q. Who did you ask?

A. I asked them all.

Q. So have you see to that they were doing what you told them?

A. I didn't make such an order.

Q. Did you see to that they were doing what you told them to do? Please.

A. Initially, yes.

Q. Yes. What do you mean by 'initially'?

A. When I ask them to make a statement separately, they have said ... they said they didn't have pen and paper.

Q. You gave them?

A. Yes.

Q. What time did you give them?

A. It was the time when they came to our office, we asked the same question roughly about the case and then I made a report to the inspector. But in fact, we don't have sufficient manpower in our office.

Q. Officer, please answer my question. What time did you give them pen and paper?

A. It should be sometime past 6.

Q. Who did - who asked for the pen and paper?

A. All of them.

Q. All of them. Did you give all of them pen and paper?

A. Not all of them. Some other officers of course had supplied some of them with pen and paper. I supplied pens and paper to two or three."

12. It seems clear from this evidence that the officer was saying that pens and paper were distributed to the victims at around 6 in the morning to allow them to write out their own statements. This is made clear by the following exchange that occurred shortly thereafter:

"Q. So they - you are sure that you have asked them to make their own statements and they asked you for pen and paper?

A. Yes.

Q. So - and it occurred at room 106 in your office?

A. Yes.

Q. It was around sometime after 6?

A. Sometime after 6 or 7, or sometime after 7, I'm not sure.

Q. So it appeared to you that they understood your instructions?

A. They should understood - they should understand. It was clear.

Q. Very clear instructions?

A. We don't have enough manpower, we can't have any other people to take statements from them. I can only have contact with one person.

Q. So did you see to it that they were - after you gave them pen and paper - did you see to it that they were doing what you told them to do?

A. They left our office and they did that in other empty rooms."

13. The cross-examination then returned to the statement which this officer said he had taken from PC 13653:

"Q. Did you in your POL 155 said that you took a statement from PC 13653 at 6:45 am on that day?

A. Yes.

Q. So it was true, right?

A. There's the possibility that I have miswritten. If I was allowed to make any corrections, I would say I tried to understand the facts from him."

It is suggested that this back-tracking on the part of the officer must be regarded as suspect given that shortly after the event he made a written record of what he did on that morning. The cross-examiner having dealt with the statement which the witness took from PW10 went on to deal with the statements made by the other victims:

"Q. Now, officer, did you on the same statement on 25 March you wrote down that - to the effect that in the morning on 23 March this year, the other PCs, the victims in this case, were writing their own statements, POL 154, in the briefing room?

A. Yes, I did wrote in that way.

Q. That was true, right?

A. That was true.

Q. So where are the POL 155?

A. Well, they did write them but I'm not sure whether they passed it to anyone. I did not - I was not handed with any.

Q. Where are the 154s?

A. The 154s?

Q. The witness statements of the other victims written in the morning of 23 March in the briefing room of Wan Chai Police Station, where are they now?

A. Well, in fact, I don't know if they have written any.

Q. You told us just I think five seconds before that it was true they were writing the POL 154 in the briefing room on the morning of 23 March.

A. That was the time when they entered my office and the time when I passed them pens and paper. They - after they left my office, I did not know whether they had been to the briefing room or some other room but they did not hand me anything. Then later on, I was told by an inspector that I did not have to follow up the case anymore.

Q. Officer, your office is on the first floor?

A. Yes.

Q. You wrote down in your statement dated 25 March that the other victims in this case were writing their own statements in the briefing room of Wan Chai Police Station.

A. Yes.

Q. So it was true? It was true, can you answer my question.

A. The briefing room?

Q. Yes, it was true, right?

A. Yes.

Q. It was true, right? They were writing their own statements in the briefing room in the morning on 23 March, the victims of this case?

Court: Is it true or not?

A. They left my office, yes.

Court: No, not if they left your office. Is it true that they were writing their statements in the briefing room?

A. That's true.

Q. Thank you. Thank you, officer.

A. They did wrote - they did write statements.

Q. Where are the statements now?

A. They did not pass the statements to me nor did I know if they had written any statement.

Q. You did not know if they had written any statement.

A. I did not know if they had written any statement.

Q. So why did you put it down on the - in your statement dated the 25th?

A. I wrote the statement based on the fact that they did ask me for pen and paper, the victims did ask me pen and paper at the time on 23 March and I did supply them with them.

Q. So can you answer my question. Why did you write down in your statement dated 25 March that they were writing statements in the briefing room if you did not know whether they had been writing or not?

A. According to my understanding, they were away from my office, there were no other - no more rooms.

Q. Can you answer my question, please.

A. Because on that day I did ask them to write statements.

Q. Yes.

A. So I thought they had written statements.

Q. Officer, your statement is quite specific that they were writing POL 154 statements in the briefing room. It's not the case that you asked them to do so, it's not a case that you supplied them with pen and paper, that you did not know where they went to. It's quite clear and specific in your own witness statement dated 25 March that the victims of this case were writing their own statements in the briefing room.

A. Yes.

Q. So why did you put that down in your own statement if you claim now that you didn't even know whether they were writing a statement or not?

A. I did not know if they completed the statement but I know they did write the statement.

Q. Yes, they did write the statement but you did not know whether they had completed, right?

A. That's right."

This witness is saying in clear terms that the victims made statements on the morning of 23rd. This, of course, ran counter to the prosecution case, as stated by prosecuting counsel, that no such statements had been made. The trial judge dealt with this matter in the following way:

"A criticism was levelled at the way in which the police at Wan Chai Police Station handled the investigation of this matter, in particular, the lack of investigation when the matter was first reported. It seems that the witnesses made no written statements of their experience until the late afternoon or early evening of 23 March, that is over 12 hours after the events in questions. Two things were suggested by the defence. Firstly, that all had got together to prepare a consistent joint account and had not put pen to paper until that had been done. As to that, I agree that there is some evidence that at least some of the witnesses had discussed amongst themselves what had happened. I find that unremarkable. A wholly unexpected, unprovoked attack had taken place on them. They would have been mystified as to why this had happened. Those who were not receiving treatment at the hospital would have naturally asked themselves what was behind it all. I believe that was discussed, but that it was not a case of one or more of them suggesting things to the others which had not taken place. I am satisfied that, notwithstanding the discussion, I can safely accept the evidence of each of them as to his observation of what happened.

Secondly, it was argued that there was evidence that in fact these witnesses had made other statements which had not been made available to the defence. It was suggested that these earlier statements were not made available; indeed, had been made to disappear because they were inconsistent with their later statements. I reject this. It was DSPC 1793, PW11, who in evidence said, that earlier in the day he had handed out pens and papers to the witnesses and told them to write their statements, and in fact had seen them in the act of writing statements. But I believe that he is simply mistaken in this. I have to say that I found this police officer, despite his very many years in the police, to be a wholly unimpressive witness. He seemed incapable of giving a simple answer to a simple question. Many of his answers were rambling explanations of matters wholly unconnected with the question put to him. I believe that he was trying to hide the fact that he had simply forgotten about the events on the day in question. He did say and I believe this, that that day had been the busiest that he had ever experienced in all his years in the police. He was a wholly unconvincing and unimpressive witness, not necessary dishonest, but forgetful and unwilling to admit that."

14. This finding is subjected to concerted attack by counsel for the applicants. It is, first, to be noted that nowhere does the judge mention the contradictory evidence of PW10. Had that evidence stood alone it may well have been possible to say that the witness had simply been confused at one stage in his evidence and to point out that at the outset and at the end of that evidence he had maintained that statements were only given in the evening. However, that evidence did not stand alone. It is difficult to see how the evidence of PW11 could be dismissed by observing that he was unconvincing and forgetful. PW11 when giving his evidence was relying not upon his memory of the events recalled when he was in the witness box but upon a statement made two days later, on 25th March, which recorded that on 23rd March he had handed out pens and paper to some of the victims and that all had made statements. The suggestion that he was a rambling witness incapable of giving a simple answer is not borne out by the passages to which we have referred above. He repeatedly gave clear and direct answers indicating that the victims made statements on the morning of 23rd.

15. We have come with considerable reluctance to the conclusion that there was evidence that statements were made on the morning of 23rd which could not properly be ignored. Counsel for applicants complain that they were never provided with copies of those statements and submit that the refusal of the victims to admit that they were ever made should have led the court to an overall suspicion as to the credibility of the police officers and as to the reliability of the statements which they did eventually make on the evening of the 23rd.

16. This covers the first two of the four matters urged in relation to the statements.

17. It is thirdly argued by Mr. Hoosen that the statements of PW1 and PW2 contain internal evidence to show that they were not spontaneous statements relying only upon the memory of the statement giver but were statements which contained some input from an interviewing officer. The following passage occurs in the cross-examination of PW1:

"Q. I'm coming to that. I told you already I'm coming to that. If you will permit me I will come to that later, right. Now, officer, is it not a fact that the information which you have given concerning the description of the persons who attacked you in that statement, came from another police officer?

A. No.

Q. You have never before seen a person or known a person called Lam Chi-kin (D4), am I right? Am I right?

A. Correct.

Q. You have never before seen or known a person called Fan Man-wai (D3), am I right?

A. Yes.

Q. How did you manage to get the name of these two persons and put it down in your statement?

A. Well, because on the 24th, when a statement was taken in Wan Chai Police Station, an inspector mentioned that those four persons were arrested.

Q. You got the information from another police officer, am I right? Am I right?

A. I only got the name.

Q. You did more than that, officer. You got their age, you got their description and the clothing they were wearing, am I right?

A. No."

18. In the cross-examination of PW2 the following passage occurs:

"Q. Well, after the event, did you write it down straight away in your notebook?

A. No.

Q. Are you able to remember some 12 hours later?

A. Yes, as he did come out and say something.

Q. Now who told you that there was an AP four?

A. The anti-triad squad member.

Q. Yes, who told you? Was it 13653?

A. I don't know, I can't remember.

Q. Just yes or no, please.

A. No, it should not be.

Q. Somebody from the triad - anti-triad squad, I see.

Q. Now, who told you that AP4 was named Lam Chi - I think it's a mis-translation, it should be Lam Chi-kin. Who told you this?

A. I can't remember who.

Q. Right. Now, who told you that he was wearing green long-sleeved T-shirt, jeans and black shoes.

A. That's what I could remember.

Q. It's from memory, right?

A. Yes.

Q. And did you write it down in your notebook?

A. No.

Q. No. And who told you that there was another male, 25 to 30 years of age, 1.7 metres tall, wearing light brown trousers, white shirt and he is WD2.

A. That's what I could remember.

Q. Right. Now, officer, did you compare notes with PC 50209 at any time, before you made these statements?

A. No.

Q. Would you be surprised to learn that in his statement he described Lam Chi-kin as 'little fat, short hair, light green long-sleeved T-shirt, jeans and black shoes,' same as yourself?

A. I'm not surprised."

These matters standing along might not be of great significance but the applicants suggest that weight can be given to them when they were looked at alongside the evidence from PW10 and PW11.

19. It is fourthly argued that commonsense indicates that the victims would, as soon as they had the opportunity to do so, have recorded the events of that evening.

20. There is considerable force in these submissions. We are driven reluctantly to the conclusion that we cannot regard the convictions as being either safe or satisfactory. We do not need to deal with the other grounds of appeal.

21. The applications are allowed. The hearing of the applications is treated as the hearing of the appeal and the convictions are ordered to be quashed.