R. v. TANG BING LUN AND ANOTHER

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court)

1. Tang Bing Lun (1st applicant), Lam Kwok Man (2nd applicant) and Leung Chi Wai appeared in the High court before Barnett, J. and a jury, jointly indicted with the murder on 19th May 1989 of a man named Wong Chi Kwan.

2. On 18th April 1990, the 1st and 2nd applicants were convicted of murder and duly sentenced to death. They sought leave to appeal against their convictions. At the conclusion of the hearing of their applications we dismissed them and now give our reasons.

3. Leung Chi Wai, who was the 3rd accused at the trial, was convicted of manslaughter and sentenced to 7 years' imprisonment. His application for leave to appeal against sentence only was dismissed on 5th March 1991.

4. The principal witness for the prosecution was a 19-year-old man name Tin Wing Cheong (PW4) who testified under immunity. He said that the three defendants and the deceased were known to him before the incident he related. His evidence was, in summary, to the following effect. At about 9.00 p.m. on 19th May 1989 he was waiting to go into the roller-skating rink at the City Plaza at Tai Koo Shing when he saw Wong Chi Kwan, the deceased, sitting on a railing near the door of the skating rink. In obedience to instructions earlier received, he made a telephone call to a man named Ah Chuen (who was not before the court) giving him information about the whereabouts of the deceased. About one hour later, a car driven by the 3rd accused came from the direction of Quarry Bay. There were four other men in the car. Ah Chuen was the front-seat passenger, while the 1st and 2nd applicants sat on the back seat of the vehicle.

5. Tin told Ah Chuen that the deceased had gone into the skating rink for a session which would end at 11.15 p.m. He was told to wait at a particular spot to watch for the deceased leaving the skating rink. The 3rd accused then drove the car a little distance away and waited there. When Tin saw the deceased coming out of the skating rink with about seven or eight others, he told Ah Chuen and he, in turn, was told to get into the car. Ah Chuen then approached the place where the deceased was in King's Road. He passed the deceased, turned and chopped at him. At this moment, the 2nd applicant was blocking the deceased's way.

6. The deceased than ran off in the direction of Quarry Bay chased by the four men - Ah Chuen (who still had his knife in his hand) the 1st applicant, the 2nd applicant and a fourth men who was a stranger to the witness. These three men had drawn knives from their waistbands. The 1st applicant led the chase and chopped first at the deceased who ran on about 10 metres before he fell down on the road. All four men then gathered round the deceased and chopped him about 10 times in all.

7. The 3rd accused then drove the car up to where the deceased was lying down in the road and from there to the place the four men had reached. They threw their knives into the back seat of the car. The 3rd accused then drove Tin to Lockhart Road where the latter took the knives (which were each about 18 inches long) away. He disposed of them and then helped the 3rd accused to clean the car which had been splashed with the deceased's blood when it had stopped near where he lay.

8. Tin then went to a restaurant and he was followed there by Ah Chuen about 10 minutes later. He saw Ah Chuen talking to the 2nd applicant and another man outside the restaurant before he went off home. Five days later he met the 1st applicant in Kowloon and went with him to the home of the 1st applicant's brother where they were both arrested on 29th May 1990.

9. The police found the deceased, lying terribly injured, in King's Road at about 11.20 p.m. on 19th May 1989. He was taken first to Tang Shiu Kin Hospital and then to Queen Mary Hospital. He died there, despite surgery performed to save his life, at about 3.30 a.m. the following morning.

10. Dr. Beh Swan Lip (PW7) conducted a post-mortem examination on the body of the deceased on 22nd May. The cause of death was multiple cut wounds. There were many very serious cut wounds on the head (3), neck, right hand and wrist, left arm (2), stomach, left hip and thigh, and left leg.

11. Neither of the applicants gave evidence or called witnesses before the jury.

12. In respect of the 1st applicant, the first ground of appeal is as follows:

"The learned Judge directed the jury contrary to S24(4) Jury Ord Cap 3. [He] directed the jury that they could consider the alternative verdict of manslaughter, only if the jury was unanimously of the view that the Applicant was not guilty of murder. This deprived the jury of ever fairly being able to consider the alternative verdict of manslaughter."

13. The material part of section 24 of the Jury ordinance is in these terms:

"24. (1)  In the event of any of the jurors, after reasonable consultation, dissenting from the residue the verdict of the jury shall be determined as provided in this section.

(2) . . . . .

(3) . . . . .

(4) If any person is arraigned for any offence punishable with death, the jury must be unanimous in their verdict of guilty or not guilty unless a majority, consisting of -

(a) where a jury of 7 persons has been sworn, not less than 5 of them; and

(b) where a jury of 9 persons has been sworn -

(i) if the full number of jurors remain, not less than 7 of them;

(ii) if the number of jurors has been reduced to 8 in accordance with section 25, not less than 6 of them; or

(iii) if the number of jurors has been reduced to 6 or 7 in accordance with section 25, not less than 5 of them,

find such person guilty of a lesser offence in which case the finding of any such majority shall be the verdict and sentence shall follow accordingly.

(5) If in any trial it seems for any cause to be desirable, the judge may direct the jury to consider their verdict further."

14. The following is the direction the judge gave the jury on manslaughter on pp. 30-31 :

"    If you are not sure about those matters, if you take the view that Mr TIN is simply not to be relied on, and that the statements made by the 1st accused do not put him as a participant in a murderous enterprise, then you would of course have to acquit the 1st accused of murder.

    If you acquit the 1st accused of murder, then you will have to go on, as Mr Forrest told you this morning, to consider whether he is guilty of manslaughter. If you are satisfied that the 1st accused was involved in the killing of the deceased but did not have the necessary intent, that is an intent to kill or to cause really serious bodily injury, then a conviction for manslaughter may ensue.

    Manslaughter is killing a person as a result of an unlawful act where that act is one such as an assault which a reasonable person would inevitably realise must subject the victim to the risk of harm. And harm means physical harm, but it need not be serious harm, slight brusing would be sufficient.

    You may take the view, members of the jury, that the 1st accused's part was nothing more than an instinctive reaction to the situation in which he suddenly found himself, as Mr Forrest, I think, put it this morning, that he rather unenthusiastically joined in. If you are of the view that a reasonable person in the position of the 1st accused would inevitably have realised that the course on which the 1st accused then embarked or joined in would give rise to the risk of someone being hurt although not seriously, you would convict of manslaughter.

    You may think, members of the jury, that anyone who joins a party armed with knives, particularly he also has a knife whether or not it is in a sheath, must envisage some degree of violence which is likely to result in harm, although not necessarily serious harm, to the person being chased.

    If, however, you are not sure that the 1st accused was joining in, if you feel perhaps he simply followed out of curiosity and was not intending to get involved, then no question of manslaughter would arise, and you would acquit him of that offence as well."

15. Then at pp.35-36, the judge said this to the jury:

"    If you come to the conclusion that you must acquit the 1st accused of murder because all of you are not certain of his guilt, then there is the alternative offence of manslaughter which you will have to go on and consider. That arises if you come to the conclusion that the 1st accused participated in the killing of the deceased, but you are not satisfied about his intent.

    You have to consider whether a reasonable person, that is to say, yourselves - you are members of the public, you are reasonable persons - you have to consider whether a reasonable person in the position of the 1st accused would have realised that some harm would have been inevitable to the person who was under attack. If you come to that conclusion, you would convict him of manslaughter. But if you think a reasonable person would not have realised that, or if you are not sure that the 1st accused really took any part at all in the killing, then you would acquit him of manslaughter as well." [Emphasis supplied]

16. The foundation for the complaint made by Mr. McCoy (who did not appear in the court below) on behalf of the 1st applicant is the sentence emphasised, coupled with the following passage in the summing up at pp. 45-46:

"    Your verdicts, members of the jury, which you will now be taken away to consider. First, the 1st accused. You have to consider the charge of murder. Now, you have to be unanimous in your verdict. That is to say, all seven of you must agree that he is guilty, or all seven of you must agree that he is not guilty. If you cannot reach such agreement after the very closest consideration and debate, then it will be for me to decide what should be done about that. But I would urge you most strenuously to reach a unanimous verdict. If you reach a verdict of guilty, that is the end of the matter. If you reach a verdict of not guilty, then, as I have said, you will go on to consider manslaughter in relation to the lst accused.

    As far as manslaughter is concerned, although again I would urge you to reach a unanimous verdict, you may bring in a majority verdict after reasonable debate and consideration if you cannot reach a unanimous verdict. ... So as far as the 1st accused is concerned, for murder, you must be unanimous that he is guilty or not guilty. If you then go on to consider manslaughter, it can be a majority verdict: 6-1, 5-2."

17. The point raised by Mr. McCoy arose in The Queen v. Yeung Mok Yeh and Another, Criminal Appeal No. 363 of 1991, 14th August 1992 (unreported). In that case another judge had given the following direction to the jury:

"When you reach your verdict in respect of murder, you must all agree on either the verdict of guilty or all agree on the verdict of not guilty.

If after a substantial period of deliberation, you are not all able to agree on either a verdict of guilty to murder or not guilty of murder, you must come back to me for further direction.

If you all agree on a verdict of not guilty of murder in respect o?an accused, you will then consider a verdict of manslaughter in respect of that accused. It is desirable that you return a unanimous verdict for this offence if you consider it. But if you are not all agreed, a verdict of six to one or five to two for guilty or not guilty o?manslaughter will be accepted."

18. One of the submissions made by Mr. McCoy who was also counsel for the applicant in that case was that the judge, by this direction, had overriden the provisions of the Jury Ordinance by denying the jury the right to consider the possibility of a manslaughter verdict as soon as they retired. This right had been taken away, inter alia, by imposing a condition that a verdict of guilty of manslaughter could only be reached after a unanimous verdict of either guilty or not guilty of murder.

19. Macdougall, J.A., giving the judgment of the court said, at pp.7-8:

"    Mr. Bruce, who appeared for the Crown in this court but not in the court below, immediately accepted that the judge had misunderstood section 24(3) of the Jury Ordinance notwithstanding its clear terms and the decision of the Full Court in Chan Charn-kau v. R. [1972] HKLR 241 and the two decisions of this court in R. v. Tam Chi-pang [1986] HKLR 1122 and Attorney General v. Pan Chi-keung [1989] 1 HKLR 19.

    We entirely accept that there was no obligation cast on the jury to arrive at a unanimous verdict of not guilty of murder before they went on to consider a verdict in respect of manslaughter. But the Crown, having indicted the applicants on a charge of murder, was entitled to have the jury consider whether they were guilty of murder. The jury were equally entitled to find the applicants guilty of manslaughter if they (a) were unable to agree unanimously that the applicants were guilty of murder or (b) were unable to agree unanimously that they were not guilty of murder or (c) agreed unanimously that they were not guilty of murder.

A verdict of guilty of manslaughter in a trial at which an accused person is indicted on a count of murder necessarily means that the jury, for however long or short a time, has considered but rejected a verdict of guilty of murder. The judge's direction that the jury should first consider the question of whether the applicants were guilty of murder was therefore not inconsistent with this process."

20. Mr. McCoy repeated before us the submissions which did not find favour with the court in Yeung Mok Yeh's case, contending that the effect of the judge's direction, which gravely inhibited consideration of the alternative verdict of manslaughter, was as if he had wrongly refused to leave to the jury an alternative verdict which arose from the evidence.

21. He frankly conceded that he could not distinguish Yeung Mok Yeh and that we were effectively bound by that decision. With his usual courtesy, he explained that he wished to make it clear that he was reserving the point in case it could be raised in another forum.

22. Mr. McCoy accepted that the jury had been properly directed on the law relating to manslaughter and the distinction between murder and manslaughter. We follow Yeung Mok Yeh and mention that, although different statutory provisions were being conidered, there is support for the court's approach in dicta to be found in Lord Ackner's speech in R. v. Saunders [1988] 1 AC 148, HL, at p.161:

"In a trial on an indictment for murder, where manslaughter is a possible verdict, the jury's task is first to consider whether or not they are satisfied that the accused is guilty of murder. It is only when they have made the positive determination that the accused is not guilty of murder that they should then proceed to consider the lesser offence of manslaughter."

23. It was for these reasons that we rejected the 1st applicant's first ground of appeal.

24. The other ground of appeal in the lst applicant's notice of appeal is thus stated:

"2. The learned Judge failed to direct the jury that if they concluded that the Applicant had lied in the exculpatory parts of his statements to the police, that this by itself could not be used to convict the Applicant. A Broadhurst direction was required, in the circumstances. The direction in respect of PW4 Mr. TIN at p.26D-H aggravated the non-direction."

25. We mention here that the 1st applicant was alleged to have made voluntary statements under caution to the police, and to have taken part in a video reconstruction of what he said took place. The admissibility of the evidence was challenged and a voir dire held. After the evidence of the police officers concerned was called, the 1st applicant elected not to give evidence in the voir dire.

26. The following are extracts from the statement attributed to the 1st applicant (dated 29th May 1989):

"Having seen a movie that day, I walked out to the bus-stop intending to take a bus home. I saw Ah Chuen on the way. He told me to hold a beef knife and said to me that there was a job to do. Then, they walked up to the side of a man. Then I saw them take out knives to chop that young man. Then, the young man ran away. The several of them and I together gave chase after him. I was the one running at the last. Having run for a distance, I saw somebody chop him once. Eventually, the young man fell down on the ground. Then, a vehicle pulled up to the front of the young man. Then, I saw three persons chop him there while I was standing behind the three of them. Then, I saw them flee after having finished the chopping and I returned the beef knife to him. He asked if I had chopped. I said I had not. I then told him that I had dropped a shoe when I was running. He then said it did not matter and you went home first. Then, they ran away. I then took a taxi to go home."

"Q. Why did you hold the beef knife accordingly when Ah Chuen told you to do so?

A. I do not know why.

Q. Can you describe the beef knife which Ah Chuen gave you?

A. It was about 12 inches long, not very big, but there was a kraft paper sheath."

"Q_. Did you know where they first saw Ah Kwan and where they began chopping him?

A. On the road outside the fifth floor of Taikoo Shing.

Q. You said you gave chase after Ah Kwan together with the three of them. Why did you give chase as well?

A. Because I was holding a knife and I did not know where they would run to, so I followed them.

Q. You said that having run for a distance, you saw Ah Kwan being chopped once. Did you know who made this chopping?

A. I am not clear.

Q. When did you see the three of them holding knives?

A. When the three of them approached the side of Ah Kwan, I saw them each take out a knife from their persons. However, I was not clear from which part of their persons the knives were taken out."

"Q. You once told Ah Chuen that you had not chopped. What does it actually mean?

A. Because I failed to catch up with him. I also had no intention to chop him as I bore no grudge against him. So, why should I chop him? Moreover, the sheath had not yet been taken off my knife.

Q Why did you fail to catch up with him?

A. Because when I was running I dropped a shoe. Moreover, I had not the intention to chop him."

27. The judge told the jury that these statements and the video reconstruction, depending upon their assessment of them, "may be corroboration of Mr. Tin."

28. After referring the jury particularly to the passages mentioned above, the judge drew attention to the following statements made by the 1st applicant during the video reconstruction, as shown on the transcript:

"At that time, I walked up more or less to this spot here. Then I saw Ah Chuen. I did not know how he came across, that is, he walked up to in front of me and gave me a knife. Then he said, 'Hold it, that is, to do a job' He said so."

"That, that person, I don't know what clothes that injured person was wearing. However, from what I saw here, I saw a person just walk out to the roadway, that is, a little space. Then they chopped that person with knives, chopping once like, er, this and chopping once like, er, this. Able to run off. Broke loose and able to run. Ran off. I was still standing here. At the beginning, holding the knife, I was still standing here like a fool and then dashed with one movement. On seeing that he ran, I then ran over as well."

"Then I saw them chopping up to here and then they ran down all the way. We chased up to here and it was here that a shoe came off."

The judge went on to direct the jury as follows:

"    You will have to make of the statements and the video reconstruction what you will, members of the jury, and attach to them such weight as you think proper. ...

    However, in considering everything that the 1st accused has said in these statements and in the video reconstruction, I should point out that incriminating statements or incriminating parts of a statement are likely to be true, otherwise why would a suspect say something to his disadvantage. On the other hand, excuses or explanations do not carry quite the same weight because there are obvious advantages in concocting or embroidering or leaving something out to your own advantage or benefit."

Then comes the passage in the summing up mentioned in the second ground of appeal:

"You will remember I have mentioned earlier that Mr TIN who admitted that he lied or did not tell the whole truth to the police was seeking to protect his position in his cautioned statement. But no doubt you will ask yourselves why, members of the jury, if the 1st accused only came on the scene by accident, he not only took the knife, but gave chase, particularly as he had no personal grudge apparently against the deceased."

29. Mr. McCoy submitted that in the light of the judge's directions (and particularly having regard to what he said about Mr. Tin and his lies) and the fact that Crown counsel, in his final address, had spoken of the possibility that the 1st applicant was "trying to minimise his role in these events", there was a real risk, unless clearly directed otherwise, that the jury might have assumed, if they thought that he had lied, that he had done so because he was guilty. By his mention of Broadhurst [1964] AC 441, Mr. McCoy must have had in mind Lord Devlin's observations, at p.457, when he was giving the judgment of the Privy Council:

"It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of. course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

30. Mr. McCoy conceded that it was not in every case where the defendant may have told lies that a Broadhurst direction is necessary. We would refer to a recent decision of this court (R. v. Chan Ching Fung, Criminal Appeal No. 523 of 1991, 13th August 1992, unreported) where we cited and applied The Queen v. Keung Sin Chi, Criminal Appeal No. 965 of 1983. In that case Yang, J.A. (as he then was) speaking for the court said this:

"Whilst this is undoubtedly a desirable course for a judge to adopt, we do not think that it is imperative for a judge to direct the jury in this way in every case; indeed there is no authority that we know of which imposes such an obligation on a judge. He must, of course, avoid giving any impression that lies, are necessarily indicative of guilt of the offence charged, as did the judge in the case cited. Each case must be dealt with on its own peculiar facts."

31. We would observe that this was not a case where either prosecuting counsel or the judge suggested that any lies the jury might think the applicant told in his out of court statements strengthened the case for the prosecution.

32. We were not persuaded that a direction regarding possible lies told by the 1st applicant was essential in all the circumstances of this case.

33. Mr. Sedgwick, who did not appear at the trial, represented the 2nd applicant before us. No complaint is made on his behalf about the summing up or the way in which the trial was conducted. However, we had to entertain his application under section 83V of the Criminal Procedure Ordinance for additional evidence to be called on the appeal - the evidence of the erstwhile 3rd accused, Leung Chi Wai^l. In his supporting affirmation, the 2nd applicant pointed to the fact that the only evidence against him came from Tin Wing Cheong who was an accomplice. His evidence was untrue. The fact that he (the applicant) had taken no part in the attack upon the deceased was shown by a statement made by Leung which he exhibited.

34. The 2nd applicant's affirmation goes on to say that "unfortunately" the evidence contained in that statement was not available to him at his trial because Leung was his co-accused and could not be compelled to give evidence on his behalf; Leung had elected not to give evidence at the trial and his police statement (also exhibited) was consistent with his new statement "but it did not specifically refer to the fact that I was never present at the scene at the material time."

35. Leung's statement dated 14th November 1991 (which contains the substance of the fresh evidence which was sought to be called before us) is verified by his affirmation dated 20th March 1992. In the statement he explains that before "the day in question" he did not know the 2nd applicant and had never seen him. He came to know him in prison when they realised that they were co-accused.' They had talked about the incident. He then speaks of his relationship with Tin Wing Cheong and how, on the day of the incident, he had picked up his triad "big-brother" and three other men at Causeway Bay and driven them to Tai Koo Shing. He states that he lost sight of the three men in the park because he remained in the car. His "big-brother" and Tin returned to the car after 10.00 p.m. "I could not remember whether the other three men had gone back with Tin and my big-brother or not."

36. His statement goes on to say that when the deceased came out of the centre at about 11.15 p.m. his big-brother walked towards him and chopped him with a knife. He and Tin stayed in the car and never got out of it. He went on to say:

"I saw my big-brother chopped the deceased and then the deceased flee to the direction of Quarry Bay. I then saw my big-brother and someone chased after him. I could not tell how many people joined my big-brother in the chasing. However, I was sure that there were more than one person. I did not know from where they (those who had joined my big-brother) came out at that time. I only saw that someone had come out from the groups of people and joined my big-brother in the chasing. Tin Wing Cheong then asked me to start the car and followed them. I then drove my car and followed them. Very soon, I had already driven pass them. Suddenly, I found someone from the pavement bumping into the left side of the mudguard of my car and I immediately applied the emergency brake and the car finally came to a halt. I then saw someone from the pavement waved the knives to chop the one who had lied on the left side of the car, I could not tell how many people did that since my sight was blocked by Tin who was sitting at my left in the front. Then, I saw my big-brother threw the weapons through the left side windows into the rear seat of the car after a few seconds of the chopping. My big-brother then asked me to drive my car back to Causeway Bay. I drove my car with Tin back to Causeway Bay and Tin took the weapons with him and left."

Leung's statement concludes:

"As far as I could recall, I thought I had seen altogether 4 to 5 men including, my big-brother, and the deceased chasing and escaping in the street when I drove my car following them. Since I could not see the faces of those 2 to 3 men at the left side of my car, I believed that I would not recognize who they were. Also, as I had not paid much attention to their clothing when I picked up those people at Causeway Bay, I could not tell whether they were the same people who did the chopping of the deceased. However, I could tell that Lam Kwok Man was very tall. I think he was about 6 feet and actually, I am sure I could tell if he was among the group involved in the chasing and escaping. So far as I can remember, I did not see a man of that similar height in front of me (i.e. at my left hand side) when I drove the car and chased them in the street. Therefore I was sure that from the time I started to drive the car to chase them until the time I stopped my car, I did not see Lam Kwok Man among the group who were chasing and escaping."

37. Mr. Sedgwick submitted that in view of the fact that the only evidence against the 2nd applicant at the trial was the uncorroborated testimony of an accomplice, who was testifying under immunity, it was essential, in the interests of justice, that the court should receive the proffered evidence of the former 3rd accused. He contended that the fresh evidence, had the jury heard it, might well have caused them to bring in a different verdict. He suggested that whatever our preliminary views about the 3rd accused's evidence might be, we should, at least, hear it de bene esse so that a final informed judgment could be made in the exercise of the unfettered discretion given to the court by section 83V of the Criminal Procedure Ordinance. He cited a number of examples from the United Kingdom and Hong Kong where the Court of Appeal had taken that course before deciding whether or not formally to receive the fresh evidence.

38. The principles to be applied in this difficult area of the law are now well settled in England and in Hong Kong, where almost identical provisions are in force and are not in dispute.

39. Clearly the potential fresh evidence must be looked at in the context of the other evidence in the case. It will be recalled that the accomplice Tin (PW4) had sworn that the 2nd applicant was one of the men sitting in the back seat of the car when Leung, the 3rd accused, drove it to the scene. It is noticeable that in his November 1991 statement, Leung does not say categorically that the 2nd applicant was not one of those men who he had picked up at Causeway Bay. And it seems that Leung is careful to say that he was "sure that from the time I started to drive the car to chase them until I stopped the car, I did not see [the 2nd applicant]." He does not say that he had not seen him earlier or at all that night. All this perhaps becomes understandable when one reads part of Tin's cross-examination [p.227 of the transcript] by counsel then appearing for the 2nd applicant, upon instructions, it is right to assume:

"Q.     You said that you had picked out the 2nd defendant at an identification parade because he had been present at the scene of the incident and you had seen him a few times in Mr Beef Restaurant?

A. Yes.

Q. Isn't the position this: that on the night of the incident you did in fact see the 2nd defendant in the car, but you didn't see him after he had got out of the car?

A. No.

Q. And that you had possibly assumed that because he had been in the car, he must have had subsequently something to do with the chopping?

A. That's not correct."

40. The same point was put to the witness by counsel at the end of the cross-examination, on p.228:

"Q. I'll just repeat this: you originally named him either because you guessed he was one of the choppers having seen him in the car, or because you had some other motive of your own for naming him even though he hadn't participated in the chopping.

A. I do not agree."

41. As we have seen, the 2nd applicant did not give evidence, but it is clear that his case then was that, although he arrived in the car driven by the 3rd accused, he took no part in the fatal assault upon the deceased. If this is so, then it is particularly significant when Leung says: "I could not tell how many people joined my big-brother in the chasing"...; "I could not tell how many people did that [the chopping] since my sight was blocked by Tin..." and later "Since I could not see the faces of the 2 or 3 men at the left side of the car ...".

42. Leung Chi Wai's statement was recorded about two and a half years after the incident he relates. He says that he had never seen the 2nd applicant before that night. The evidence foreshadowed by the statement is uncertain and wholly inconclusive. We mean no disrespect when we say that it simply does not justify the claims made for it by Mr. Sedgwick. It is not a question of whether the evidence is capable of belief; its nature and quality is such that it could not possibly found a ground for allowing the 2nd applicant's appeal. We note, and adopt, the observations made by Scarman, L.J. (as he then was) when giving the judgment of the Court of Appeal, Criminal Division, in Lattimore and Others (1976) 62 Cr App R 53, at p.56:

"Of course, it is common sense that the Court will not receive evidence under subsection (1) if satisfied that it 'would not afford any ground for allowing the appeal': for its reception would not be 'necessary' in the interests of justice. It is also inconceivable that the Court would receive inadmissible evidence: for the Court must act according to law. But these curbs upon the discretion arise not from the fact that they happen to be mentioned in subsection (2), but from the terms of subsection (1) and the general law, including the law of evidence."

43. There will be cases in which the court will decide for one reason or another (sometimes for convenience) to hear the fresh evidence which is tendered de bene esse. Everything will depend upon the facts and circumstances of a particular case. It is a matter for the court's judgment. However, we did not think that it was necessary or desirable to deal with the application in this way.

44. These were the reasons why we refused the 2nd applicant's application under section 83V and, there being no other grounds of appeal put forward, dismissed the 2nd applicant's application for leave to appeal.