THE QUEEN v. PANG SHUN YEE AND OTHERS

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J U D G M E N T

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Silke, V.-P.:

1. Pang Shun Yee - "D1" - Tam Sze Foon - "D2" -, Cheung Yau Hang - "D4" - and Chiu Wai Man - "D5" - appeared for trial before O'Connor J. and a jury upon an Indictment containing two counts of murder. Another person charged, Won Sam Leung, had earlier pleaded guilty to both counts and gave evidence in the course of the trial on behalf of the prosecution. Won and D4 were under 18. Dl was 26, D2 was 21 and D5 was 25 years of age.

2. After a trial which lasted from 27th October 1986 to 20th January 1987, the four accused were convicted on both counts. They sought leave to appeal against those convictions. At the hearing D1 was represented by Mr. William Lee Leading Mr. Philip Wong D2 and D4 by Mr. Cheng Huan leading Mr. Jason Pow, and D5 by Mr. Frank wons leading Mr. Derry Wong. As the grounds of appeal were points of law, leave to appeal was not required but we gave leave ex abundanti cautela. Treating the hearing as the hearing of the Appeals we dismissed them saying, that we would give our reasons later and this we now do.

3. On 20th April 1985 two gifted teenagers, Nicola Sharon Myers and Kenneth McBride, went to a desolate, unnamed hillside behind and to the south of Braemar Hill Mansions, quietly to study. On the same day a group of men gathered in Kowloon, came across the harbour and made their way to the same area. They came upon the two teenagers. They set about them, robbed them, tied up the boy and offered gross sexual indignities to the girl. This part of the incident took some time and the participants were D1, D2, D4 and the accomplice Won. About 20 minutes later, D5, who had been acting as a lookout, joined them. After further incidents involving, the girl, the feeling, according, to the evidence of Won, of himself and the 2nd, 4th and 5th Defendants was that they wanted no more of it. They moved a little distance away and as they were doing so, they saw D1 beat the girl with a stick. Won, D2, D4 and D5 collected together the belongings of the couple having been instructed to do so by D1 and then lit cigarettes. After D5 had gone down to where D1 was, D2 told all of them that D1 wanted them to go down to the same place.

4. Up to that time, there was no suggestion of any intention to kill being held by the group.

5. But D1 then said to them all "Kill the two before we leave", whereupon D1 and D2 started to strike the girl with a single stick, it being passed from one to the other. D2 brought the tied up boy down to the same spot. D1 and D2 hit him with a stick and D2 generally assaulted him. D1 told D4 and D5 not to tell anyone about what was happening and ordered Won, D4 and D5 to each hit the boy with a stick. All of them did so. They received further instructions from D1 to hit the boy upon his neck which they did. D1 threatened them that if they did not do it they would not he able to leave and that he would kill them. Won said he believed him.

6. D1, thinking that the blows struck by Won, the 4th and the 5th Defendants were not hard enough, himself hit the boy again with the stick as did D2. The stick was placed across the boy's neck and Won, D4 and D5 were directed to jump upon it while it was being held by D1 and D2. D1 said that they were not sufficiently enthusiastic so these positions were reversed, Won, D4 and D5 holding the stick in place and D1 and D2 jumping upon it. The boy was still alive. D2 then picked up some cloth. Then he and Dl each holding an end placed it round the neck of the boy and pulled it tight. D1 then announced that the boy was dead.

7. Won, D4 and n5 were instructed to go down and kill the girl. They went to where she was and struck her with another stick. D1 and D2 joined them and also used a stick to hit the girl. The stick broke and the broken part was then placed across the girl's neck and the same procedure was followed as with the boy. The girl was still alive and Won, D4 and D5 were told to stand aside while D1 and D2 hit her again with the stick which broke for a second time. Shortly after the stick had been put to another use, they all left.

8. The medical evidence in respect of the girl was that her death resulted from multiple injuries, in particular head injuries. Shock contribute because shock would have made the effect of the injuries greater.

9. As to the boy, he died from asphyxiation due to pressure on the neck which was unlikely to have come from the piece of cloth which D1 and D2 pulled tight and more likely to have been caused by the manner in which the stick was used upon him.

10. D1 was arrested on 27th November 1985 and the others shortly thereafter Lengthy confessional statements were made by them all. These, after a voir dire, were held by the judge to be voluntary and were placed before the jury in evidence. The Crown's case was based mainly upon those statements and upon the evidence given by Won. The jury were aware that he had pleaded guilty to both the counts.

11. The jury were fully advised as to the nature of the witness won and as to the manner in which they should view the cautioned statements. No complaint was made on any of the directions in this respect.

12. D1 gave no evidence, D2, D4 and D5 all went into the box.

13. D2 said that his statement was not an accurate one. Me was afraid when he made it as he had been threatened with a beating by the police Inspector who was present. He also said certain parts of it were untrue. His defence was that all he did in respect of the boy was, at the start, to grab hold of his neck and to tie him up - this at a time when there was no intention to kill. He later took his shoes. As to the girl all he did was to hold her hands to restrain her and he took no part in injuring her nor did he agree or intend either of the teenagers being killed or seriously injured. The issue was left to the jury on the basis that the verdict against him would be either guilty or not guilty or murder depending upon the view they took of the evidence.

14. D4 also questioned portions of his statement and said that he made the statement because the police had told him he might be a Crown witness. He exaggerated in it because he wished to please them. His defence was that he had been threatened by D1 who told him that they had to kill both the teenagers to avoid identification. He believed D1 because of that which he had seen D1 do to the girl and because of previous assaults which D1 had carried out upon himself. He did stand upon the stick but using little force, only one foot - this in respect of the boy. He accepts that he also hit the boy with the stick but says that he, Won and the 5th Defendant only used very light force and this was really to deceive D1. Again, and under threat, he did strike the girl but only very lightly and he did not know at that time whether she was alive or dead. Basically he was saying that he never intended serous injuries to either the boy or the girl, never agreed that either be killed and that whatever he did after Dl's instructions to kill was only the use of light force with the intent to deceive D1. The issues were left to the jury first on the basis of either guilty or not guilty of murder and manslaughter was also left. The jury were instructed on manslaughter that they would have to be satisfied that D4's actual blows contributed to the death.

15. D5 said he was very frightened when he made his statements and that at first he denied taking, any part but, having been told that the others said he did and that he had better co-operate, made a lengthy statement. The bulk of that statement was correct but there were inaccuracies in it. Certain matters were set down which he did not say. He also said that he was threatened by D1 telling, him to kill the teenagers or else D1 would kill him. He believed Dl. He said he did nothing at all to the boy and that he only gave the girl a kick and several blows. He had no intention to kill or to seriously injure anyone. The issue was left to the jury that in respect of the boy their verdicts could be either guilty or not guilty of murder. As regards the girl, as well as murder being left, they were told if they were not sure that be agreed to kill her but that be had delivered blows which contributed to her death, then manslaughter was open to them.

16. D1 who, as I have said did not give evidence, had given detailed statements in which be described the various assaults upon the boy and the girl as indicated by the evidence of Won. He was clearly implicated by the evidence given by D2, D4 and D5. The issue was left to the jury on the basis of either guilty or not guilty of murder.

17. Immediately before the jury left for their deliberations the judge gave them a final direction upon that what the Crown must prove. He said this:

"Now I'll just repeat to you, members of the jury, what bas to be proven before you would convict any defendant of murder in respect of a particular one of the teenagers. To convict a defendant of murder, in respect of either the boy or the girl, you will have to find it proven, that that defendant was a party to an agreement to kill that particular person, and you will look at what was said and what was done and decide whether on the evidence of that defendant's actions, and of course taking into account what be tells you of his intentions, you would decide whether it's proven that he intended and assented to the killing of that particular teenager, whether be was a party to an agreement that that killing took place."

18. A number of the grounds of appeal argued before us are common to all Appellants. These included the admissibility of a video-tape recording made of a visit to the scene, after they were charged by all the Appellants the judge's directions generally as to intention; certain aspects of that direction relating to the difference between intention and desire and illustrations which were given them; the directions as to the standard of proof in respect of the judge's use of the word "conscience"; a failure to warn the jury to ignore the accomplice Won's guilty plea; the judge's directions as to inferences.

19. A ground Peculiar to D4 and D5 was whether the issue of duress should have been left to the jury; further the effect of duress upon their intention and the possibility that, had D4 and D5 been aware of the decision in Howe⁽¹⁾, a House of Lords' decision which was published after the conclusion of this trial, they would have conducted their defence differently and so there was a material irregularity in the course of the trial.

20. Before giving consideration to what I may term the main grounds, two matters can be disposed of First, the directions as to the standard of proof.

21. The jury were told in explicit terms that they must find guilt proven beyond reasonable doubt. The judge then said:

"And that means in another way that before you convict a defendant on any charge you have to, in your conscience, be sure that the person is guilty on that charge." (Emphasis. supplied)

Exception is taken to the emphasised expression. It is said that in an emotive and distressing case such as this that its use was prejudicial to the interests of the defendants.

22. That expression must be placed in its context for the judge had, with reference to what was a reasonable doubt, told the jury that if a juror simply "dressed up a doubt in order to escape responsibilities", that would not be a reasonable doubt. It is clear that when he used the expression "in your conscience" he had that reference in mind. We considered the words used by the judge to be no more than a strong and emphatic direction as to the assistaice which the jury must have before they could convict.

23. Next, and before going, on to the broader ground of non-direction on the issue of intention, it is suggested that, when the trial judge spoke of intent and desire and allied them to the. illustrations he gave, he was confusing the jury and that the content of those directions was sufficient to amount to a misdirection. What the judge said on the first point was this:

"Now the question is, whether they intended and agreed to the killing whether they intended and assented to, whether a defendant intended and assented to the killing. That is the question. The question is not whether he wished the killing, or whether - the question is not whether he would have preferred the killing not to take place. That is not the question. The question is whether he intended it."

The judge then went on to give the illustrations complained of. He spoke of persons intending to do something without wishing it to happen, such as going into hospital for an operation. The other examples were on the same line, the chastisement of a child and a person being impanelled as a juror. In each case, intending to do the act but wishing that he did not have to.

24. In the context of the evidence in this case, we cannot see that what the judge said could be considered to be in any way prejudicial or in any way wrong. The directions were clearly given in the light of that which the Appellants said of threats by D1 and of doing whatever it was they did do under compulsion.

Video

25. Complaint is made that the video and tape recording of the visit to the scene should not have been admitted into evidence because of "unfairness". It was the Crown's evidence that the Defendants had voluntarily agreed, before being charged, to go to the scene to trace the route which they had taken to and from that place. The visit took place after they had been formally charged because of the mechanics of arranging transport and reaching difficult terrain. The trial judge had tried the issue of voluntariness and found these items to be admissible. It had been submitted to him this evidence was highly damaging and its impact upon the jury would have been so greatly prejudicial as to outweigh any probative value it might have had. It was described as an effort to holster the case for the Crown and as merely confirmatory of previous consistent statements.

26. Tam Wing Kwai⁽²⁾ was referred to and the Judge, in his Ruling, made reference to Lam Yip Ying ⁽³⁾. He said that he applied the same principles to the video and the video-tapes as he did to the cautioned statements.

27. He then went on to consider Tam⁽²⁾ which concerned a video reconstruction of a crime and the argument there that the video was a further statement obtained in to order to confirm previous statements made. He stated that the police practice of making post-recordings of oral statements by defendants, which it was impractical to record at the time, had had frequent judicial approval. He thought that, in those circumstances, there were in fact two statements - the oral and the post-recording. He could not see how that analysis could be distinguished from the video - tape situation. He thought Tam⁽²⁾, on examination, was not reconcilable with other decisions of these Courts when considering the admissibility of post-recordings and that it had been overtaken by events, in particular by Lam Yip Ying⁽³⁾. He considered Lam⁽³⁾ to give helpful guidance on the exercise of his discretion. He did not think Lam⁽³⁾ to he decisive. It had not been drawn to his attention by counsel. Without it he would have come to the same conclusion, He viewed the actions of the police as being directed to discovering, amongst other things, whether any physical clues remained along the route. He decided hat, whatever the cogency of the evidence, it was in no way affected by the method by which it was obtained. He concluded:

"In all the circumstances, I do not consider that any unfairness or injustice is involved in letting the jury derive what assistance they may from the video and audio tapes. I do not exercise my discretion to exclude them.

28. The same points as were made in the submissions to the judge were argued before us by Mr. Lee on behalf of D1 and the other Appellants. It was further alleged that the judge had misapplied the decision in Tam⁽²⁾ and that when he distinguished Tam⁽²⁾ from Lam⁽³⁾ he was in error. Tam⁽²⁾ should have been sufficient authority to exclude the evidence.

29. Portions of the transcript of the tape recording which contained the words of D1, D2, D4 and D5 were drawn to our attention on the basis that these were, in effect, confirmatory of that which they had said in their cautioned statements D1 (at page 180) had spoken of hitting the boy, D2 had spoken of throwing away the belongings of the teenagers, D4 (at parse 247) had spoken of jumping down to where the boy was and D5 (at page 262) had spoken of the murder of the two teenagers and the scene "where we killed them".

30. The evidence was Mr. Lee says, produced by the prosecution in an attempt to inflame the minds of the jury and from an improper motive. Because it was there he suggested that the jury would conclude that the confessional statements must be true, that what Hon said must he true and, as all the Appellants were shown at the scene of the crime, the inevitable, conclusion of the jury would be that they were all guilty.

31. Tam Wing Kwai was indicted for murder and in the course of the trial the prosecution produced six statements made by him, the most vital of which was a confessional statement made after Tam was in custody and had been brought before a magistrate. The final statement of the six was the video-tape reconstruction. The Court of Appeal held that although as a general rule a video - tape may properly be admitted in evidence, it was wrong to obtain confirmation of a previous confessional statements by means of a further statement so recorded and that the last statement should have been excluded in the discretion of the judge.

32. In delivering the judgment of the Court, Huggins J.A. (as he then was) said at page 406:

"In the present case the events which took place on 7th August at the flat were at the instance of the police, whereas it was the Appellant who carried out the demonstration. Mr Fussell said that the Appellant was asked 'whether he was willing to go over the scene, to reconstruct the scene with us with the aid of a video-tape recorder.' Later he said that the purpose in deciding to employ this apparatus was that there might be an actual recording of what took place at the flat, so that there could not be any argument about what the Appellant did and said in the course of reconstruction. It seems to us that the overall intention was to bolster up the Crown's case, it being hoped that the Appellant would confirm visually what he had already said in his fourth statement. In our view it was not the recording, on video - tape which was open to objection but the fact that a further 'statement' was taken at all. Sound tape recordings of statements are commonly admitted in evidence. A video-tape merely extends the record to the sense of sight and it is a record which is much more difficult to tamper with than is a tape of the sound alone. In our view such evidence may as a general rule properly be admitted. However, we think it was wrong here to try to obtain confirmation of the fourth statement in this way and we think that the sixth statement ought to have been excluded in the exercise of the judge's discretion......." and the Court applied the proviso.

33. Lam⁽³⁾ gave general guidance to trial judges in relation to the admission of cautioned statements. At its conclusion the Chief Justice, in delivering the judgment of the Court, said:

"It may be of help if we summarize the duty which lies on a trial judge at the end of a voir dire, when he must ask himself -

(a) has the Crown established beyond reasonable doubt that the statement is voluntary in the sense described above; and

(b) if he is so satisfied, and the evidence suggests that it was obtained `unfairly', or that its use in evidence would he unfair, should he exercise his discretion to exclude it?

The power to exclude confessions on the ground of unfairness should seldom be employed. Firstly, because it involves, the judge in withdrawing relevant and admissible evidence from the jury; whose function is to weigh such evidence. Secondly, because in almost all cases, the kind of conduct which would constitute unfairness should already have excluded the confession as involuntary."

34. Here, while the police may well have hoped for some confirmation of the cautioned statements to emerge from the journey undertaken, there was not a reconstruction of the actual crime. The jury in the course of the trial had visited the scene; there were maps and a reconstruction of the area in Court. We consider the video and the video - tape recording were of a similar nature - to assist the jury in their consideration of the rest of the evidence. The presence at the scene of the Appellants was in no way contested. The contents of the video and of the tape were unlikely to inflame any passions in the jury's collective breast which had not already been ignited, if they were ignited at all, by the contents of the cautioned statments. The evidence was clearly admissible and it is not suggested otherwise. Had it been a fullblown reconstruction of that which took place upon the hillside then that which was said in Tam⁽²⁾ may well have had application. But it was not. All evidence which tends towards proof of guilt is "prejudicial". We do not think that it caused any special prejudice nor was it obtained for the purpose of confirming the previously made cautioned statements. The submissions of Mr. Lee did not persuade us that the trial judge had wrongly exercised his discretion.

Intention

35. Mr. Cheng Huan who argued this issue on behalf of the other appellants whose counsel again, as in the case of Mr. Lee, adopted that which he said, submits that the trial judge was in error in not directing the jury on the lines of Moloney⁽⁴⁾ and Hancock⁽⁵⁾. He should have given directions as to foresight and the consequence of Foresight.

36. Both these cases were further considered in Regina v. Nedrick⁽⁶⁾ and in Ward⁽⁷⁾. Ward⁽⁷⁾ was the first in time having been decided on 20th May 1986, the same day upon which Nedrick⁽⁶⁾ was heard but in which the reserved judgment was not given until the 10th July. Ward⁽⁷⁾ was not referred to in Nedrick⁽⁶⁾ Both applied Moloney⁽⁴⁾ and Hancock⁽⁵⁾. Nedrick⁽⁶⁾ was a "gap" case where paraffin was poured through the letterbox of a house and set alight. The house caught fire. A child in it died. Ward ⁽⁷⁾ was a group fight where Ward⁽⁷⁾ admitted that he held a scissors and struck the deceased but without any intention of causing serious injury and without knowing that a companion had, and had used, a knife.

37. Neither, however, have direct relevance to the facts of this case. Here, if the Crown's evidence was believed, each one of the Defendants, knowing, that the intention was to kill, had contributed acts which led to that result. The jury were directed that to convict of murder they must be satisfied that each and every Defendant intended to kill or to do very serious bodily injury. That was part of the direction given in Ward⁽⁷⁾. The complaint there was an additional but unnecessary direction on foresight which the Court of Appeal held to be incorrect because it should, which it did not, have made clear to the jury that foresight of consequences was no more than evidence of the existence of intent. Nedrick⁽⁶⁾ clearly needed, in the light of its facts, a direction on foresight which was not given. The trial judge had not been aware of either Moloney⁽⁴⁾ or Hancock⁽⁵⁾, the judgments in which were published subsequent to that trial. The direction approved in Ward⁽⁷⁾ was:

"The word, 'intention' .... is a word that you and I use in our ordinary conversation and we think we know what it means when we use it, but used in this connection it may be it may bear one or two .... one or more interpretations. An intention, members of the jury; may mean a desire to bring about a particular consequence, in other words it may mean that the man wished to kill or to cause grevious bodily harm and that may be the sense of it .... in which you ordinarily use the word intention......".

38. In this instant case, the trial judge, having stated that, for murder, it was not necessary for the Crown to prove that a particular defendant by himself or by his own hand inflicted an injury contributing to death, went on:

" Perhaps I repeat that because that is quite important. In respect of each defendant, on each charge, what you have to decide is whether it is proven beyond reasonable doubt, that is whether you are sure, that that defendant intended the killing to take place, was party to an agreement to kill that teenager, was present when the killing took, place. If you do not find that proven, in respect of a particular defendant, as regards a particular deceased (charge?), you would acquit him in respect of that deceased (charge)?

Now as regards whether there was such an intent, and agreement, and whether a particular defendant was a party to it, you would consider the evidence as to what was said, and as to what the particular defendant did thereafter, and the context in what he did it as known to, him (sic) and you will decide whether, in the light of the evidence and inferences you draw from established facts, such an intention and an agreement and the killing in pursuance of it is established. You would not convict a defendant just because he was present. You would have to find in addition that his presence was as a person who had agreed to the killing."

39. Summings up are, and indeed must, be, given in the light of the particular evidence in a particular case. They are "tailored", in the best sense of that word, to the facts which the jury has to consider.

40. In our judgment, this was one of the ordinary majority of cases where all the judge needed to do in the context was to direct the jury on the plain meaning of the word "intention". There was no necessity, and indeed with respect had it been given it would have been wrong, to direct on the lines of Moloney⁽⁴⁾ and Hancock⁽⁵⁾ on foresight and the consequences of foresight.

Inferences

41. In the course of his summing up, the trial judge at page 6 in a passage which I have already set out stated that the jury when considering the issue of intent should decide that matter:

"In the light of the evidence and the inference's you draw from established facts ....."

And at page 3, he also directed them that:

"Now as part of your fact-finding process you may draw inferences from established farts. You don't guess, but from established facts you may draw inferences."

42. The complaint is that he did not direct the jury that, if they were to draw an inference adverse to a defendant, then not only must it be a reasonable one but it must he the only inference which could he drawn from the established facts.

43. This proposition stems from what I, with respect, call the "Diplock Direction" in Kwan Ping Bong ⁽⁸⁾. There Lord Diplock in delivering, the Opinion of the Privy Council said:

"The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring., from the facts that have been the subject ,of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused which constitutes an essential element of the offence; but the inference must he compelling - one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

44. The "Diplock Direction" was considered by this Court in three cases: The Queen v. Lo Man Pung, Eddie and Another⁽⁹⁾; The Queen v. Hung Hon Yee and Others⁽¹⁰⁾; and The Oueen v. Yu Wai Chun and Another⁽¹¹⁾. These last two cases were drawn to the attention of counsel by this Court and submissions were made upon them.

45. Eddie Lo Man Pang had been convicted on three counts of conspiracy relating to commercial fraud. There was documentary evidence of a large number of substantial monetary transactions. Mainly from those documents the Crown asked the, jury to infer that. Lo had been nominated as a seller in one of the transactions but only for the purpose of obtaining an illicit profit. Further they were invited to infer that that scheme was the result of a conspiracy between Lo and another. The Crown's evidence was mainly circumstantial.

46. Neither Lo nor his co-accused pave evidence. They, in turn, relied on inferences - inferences of innocence - contained in the Crown's evidence and upon contradictions in that evidence. In those circumstances, a careful and full direction on inferences was vital. Li, V.-P in delivering the judgment of the Court accepted the contention of counsel for Lo that where the trial judge directed the jury that:

".... inferences which you do draw from such facts must be such that they are the only reasonable inference which may be drawn from the proved facts .....?"

he was correct and equally, when he directed them immediately afterwards:

"I should tell you also that when two or more equally reasonable inferences may be drawn from the facts you will find then the one which is more favourable to the accused should be drawn."

he was wrong.

47. The Court felt that, by framing his directions in the way he did, the judge has misled the jury into believing that an inference of innocence could only be drawn if it were "as equally reasonable as an inference of guilt. In the context of that case it mattered. Eddie Lo⁽⁹⁾ is, in this context, a case confined to its own facts.

48. In Hung Hon Yee⁽¹⁰⁾, the trial judge, having, told the jury to use their common sense and not to speculate, told them they were entitled to draw reasonable inferences from the evidence lie distinguished between inference and speculation directing them that "inference" is the drawing of a proper conclusion from facts which they found established. At a later stage in the summing up the judge reminded them that the Crown's contention was that, looking at the evidence as a whole, they must come to the "irresistible conclusion" that the evidence led involving the accused was "all part of a single on-going conspiracy." It was contended at the hearing of that Appeal that the trial judge should have gone-on to give, in terms, the "Diplock Direction".

49. In delivering the judgment of the court I said, at page 7, that inferences from proved facts are part of the stock in trade of any decision making body and went on:

"When that decision making body has the onerous duty of deciding the guilt of persons appearing before it and when it is directed in clear and unmistakable terms that it cannot convict unless the Crown has proved its case beyond a reasonable doubt and, further, when it is directed that the Crown says its evidence would lead them to an irresistible conclusion, then the statement of the law as enunciated by Lord Diplock is satisfied."

50. In Yu Wai Chun⁽¹¹⁾, My Lord Kempster J.A. in delivering the judgment of a Court of which was a member, said of an inference direction:

"In the absence of special circumstances and providing that a proper direction is given as to the burden and standard of proof, as was provided in the instant case, no specific direction is required."

Hung. Hon Yee⁽¹⁰⁾ was approved and reference was made to McGreevy v. D.P.P.⁽¹²⁾.

51. Lord. Morris in McGreevy⁽¹²⁾ was at pains to emphasise the need for simplicity and comprehensibility in a summing-up and the headnote reads:

"At a criminal trial with a jury, in which the case against the accused depended wholly or substantially on circumstantial evidence, there was no duty on the trial judge to give the jury a special direction, telling them in express terms that before they could find the accused guilty they had to he satisfied, not only that the circumstances were consistent with his having committed the crime but also that the facts proved were such as to be inconsistent with any other reasonable conclusion; it was sufficient for him to direct the jury that they had to be satisfied of the guilt of the accused beyond reasonable doubt."

52. Here the trial judge had been at pains to make clear to the jury at various stages in his summing up that they must find the facts proved beyond a reasonable doubt be fore they could come to conviction. He reminded them as I have already indicated of this immediately before they retired. There was little, if any, circumstantial evidence. The Crown'.s evidence, if believed, was direct. Given the very clear and explicit directions which they received as to the burden and standard of proof, and a jury must be given credit for some intelligence, in our judgment the directions given satisfied Lord Diplock's statement of the law.

Won's plea

53. Before going on to consider the final matter of duress raised in this appeal, we shall deal with the complaint that the trial judge failed to direct the jury that the plea of guilty by Won to murder, a plea known to them, should not be taken in any way as being adverse to or indicating the guilt of the other Appellants.

54. It is correct that there was no such specific direction. It is correct that in the course of the summing up the trial judge, of necessity made reference to the fact that Won had pleaded guilty. Won's evidence of that which he himself did and of the actions of the other Appellants was damning.

55. Counsel contends that the jury, knowing that Won had pleaded guilty and hearing his evidence would inevitably have come to the conclusion, that any other Appellant implicated by him would also be guilty of murder.

56. The credibility of Won's evidence was left to the jury in clear and unequivocal terms. It was entirely a matter for them as to what view they took of it. It was entirely a matter for them what view they took of the gloss which the three appellants who gave evidence sought to place upon it. It would have been difficult for the trial judge to adopt a formula which would have avoided confusing the jury had he given the specific directions sought. Won's evidence, if believed, coupled with the manifest support it received from the contents of the cautoned statements, and given that the jury disbelieved the attempts by the appellants to distance themselves from the two killings, could have resulted in no verdict other than guilty of murder.

57. The course the trial judge took does not give rise to any anxiety nor do we think it was wrong.

Duress

58. This has relevance only to D4 and D5.

59. Duress has never been available as a defence to the act of murder. It must be remembered that, if available, duress is a complete defence entitling an accused to an acquittal.

60. In The D.P.P. for Northern Ireland v. Lynch⁽¹³⁾ that proposition was thrown into doubt. The issue of its availablity to principals in the first degree was left open - this is clear from the speeches of Lord Morris at page 671, Lord Wilberforce at pave 685 and Lord Edmund-Davies at page 715. But Lynch decided that duress was available as a defence to a principal in the second degree, the aider and, abettor. Lord Simon of Glaisdale, in his trenchant dissenting opinion at page 685, set out the history of duress as a defence and he said at pane 688:

"A principal difficulty in this branch of the law is the chaotic terminology, whether in judgments academic writings or statutes. Will volition, motive, purpose, object, view, intention, intent, specific intent or intention, wish, desire; necessity, coercion, compulsion, duress - such terms, which do indeed overlap in certain contexts, seem frequently to be used interchangeably, without definition, and regardless that in some cases the legal usage is a term of art differing from the popular usage. As if this were not enough, Latin expressions which are themselves ambiguous, and often overlap more than one of the English terms, have been freely used - especially animus and (most question-begging of all) mens rea."

61. In an attempt to avoid the difficulties envisaged by Lord Simon we prefer to abandon the terminology "principal in the first degree - principal in the second degree" and adopt the lucid explanation of those terms given by Lord Hailsham in The Queen v. Kowe anal Others⁽¹⁾.

He said:

"....that there is a valid distinction to be drawn in ordinary language between a man who actually participates in the irrevocable act of murder to save his own skin or that of his nearest and dearest and a man who simply participate before or after the event in the necessary preparation for it or the escape of the actual offender."

62. The questions raised as we see them are: First: Into which category did D4 and D5 fall?; second: if they fell into the latter part of the definition, did the judge apply the right test in relation to the evidence of duress when he withdrew the issue from the jury?; third; as a generality, what in the light of Lynch ⁽¹³⁾, (House of Lords), Abbott v. The Queen⁽¹⁴⁾ (the Privy Council) and Howe⁽¹⁾ (the House of Lords) is the proper law of Hong Kong?

63. It was somewhat unfortunate that the submissions of counsel did not follow this course for we were first addressed upon the question of the test before considering whether duress lay at all. We prefer to consider the issues in the order set out.

64. Duress has a long history. One can go hack to Justinian and the use of the expression "coactus volui" as being synonymous with "though under compulsion" (Justinian Digest 4(II)2.5).  If an act were done under compulsion, a person could be relieved from the ordinary legal consequences of a transaction.

65. The expression "coactus volui" appears in modern times in Professor Grauville William's "Criminal Law" inhere he uses it as descriptive of the mental state of an actor under duress.

66. Duress in relation to a killing, and that it is not a defence at common law, is referred to Hale's Pleas of the Crown (1736) where that commentator said at Volume 1 page 51.

"If a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime, and punishment of murder, if he commit the fact; for, he ought rather to die himself, than kill an innocent."

67. Blackstone in his" Commentaries" repeats the theme that a man under duress "ought rather to die himself than escape by the murder of an innocent". All the major textbooks on Crime accept this proposition and it was restated in Abbott⁽¹⁴⁾.

68. Abbott⁽¹⁴⁾ considered Lynch⁽¹³⁾ and refused to extend it beyond its own confines. Lord Salmon in delivering the majority judgment of the Privy Council saying, at page 767:

"What their Lordships cannot accept is the novel proposition that duress is a defence to a charge of murder against a man who takes part in the actual killing."

69. The Judicial Committee considered that even if they had thought themselves to be justified in changing the policy of the common law of England on this issue they would not have done so in that particular appeal. The majority, with clear reluctance, felt that they must follow "loyally" the decision in Lynch⁽¹³⁾ as to its availability to the aider or abettor.

70. Howe⁽¹⁾, decided some weeks after this trial ended, overruled Lynch⁽¹³⁾ and removed duress as a defence to any aspect of participation in murder, the House making use of the Practice Statement (Judicial Precedent)⁽¹⁵⁾.

71. The facts in Abbott⁽¹⁴⁾ are of interest in relation to issues which will later arise. Abbott lived in a commune presided over by one Malik. One of the inmates of the commune had a mistress. Malik decided to "liquidate" the mistress because she was causing mental strain to the innate. It was decided to kill her A hole was dug by Abbott and others and Abbott was given instructions by Malik that he was to grab the mistress and put her into the hole. Malik threathened Abbott that, if he did anything to endanger the safety of those joining in this enterprise or of Malik himself or his children who lived in the commune, Abbott and his mother would die.

72. When the mistress arrived Abbott invited her to come and look at the hole. She asked what it was for whereupon Abbott said it was for her and jumped into the hole with her. A man who had been hired specifically to kill the girl jumped into the hole after him Abbott held the girl while the assassin attempted to stab her to death with a cutlass. The girl struggled but,  probably because of the confines of the hole and the number of people in it, she received only a number of comparatively minor stab wounds. Abbott called for help. Another man then jumped in, seized the cutlass from the assassin and drove the blade into the girl body. The girl collapsed but was not yet dead. The men, including Abbott, then buried her alive.

73. It was submitted - counsel relying on Lynch⁽¹³⁾ -that in thecourse of the trial there was no investigation of the respective roles of the participants and that the jury should have been directed to consider whether Abbott was only an aider and abettor and thus had duress available to him. Lord Salmon, dealing with this ppoint at page 672, was of the clear view that it was unnecessary to say any more about the submission, which involved the quashing of the conviction and the ordering of a new trial, than that it was clearly hopeless. He went on:

"The facts which have been recited in this judgment speak for themselves... They make it obvious that the appellant was a principal in the first degree in that he took an active and indeed a leading part in the killing."

Therefore the law at the time of trial was that the active participant in the killing could not rely upon duress (Abbott) but that the aider and abettor could (Lynch - Abbott dubitante).

74. We have recited sufficient of the facts at an earlier stage in this judgment to make it unnecessary now to repeat them. From those facts it is clear that the Appellants had knowledge when they acted of Dl's intention to kill in order to avoid discovery. That avoidance was to their advantage also. Having that knowledge they were fully aware that, if their joint acts were to continue, a killing in which they were participants would result.

75. It is clear to us beyond peradventure that neither the 4th nor the 5th Defendants could avail themselves of duress for they were without doubt active participants in the irrevocable act of murder. This is not to ignore the issues they themselves raised in the course of their evidence as to the possibility of no act at all or a lack of intention.

76. That of itself is sufficient to dispose of this aspect of the appeal but, in deference to counsel and the arguments which have been advanced to us in relation to the test applied and, more importantly, as to what the law now should be in Hong Kong, we shall go on to deal with them.

The test

77. At page 1943 Volume 5 of the transcript, the judge gave his ruling refusing to leave duress, with the jury and he based himself on the test whether the threats acted upon D4 and D5 so that what they did was done under compulsion.

78. At one point in the course of the lengthy submissions made to him on what directions he should give to the jury (p.1931 H) he did say that it might be best to leave the matter on the basis of principals in the first degree or nothing. But this was not the course he took.

On the test he said:

"    However, in my view, this question of duress, there's a subjective element in that. The submission to duress must be submission that an ordinary person with the characteristics etc. might have - whether his will might have given under these threats, and in my view that subjective objective element has to pass two tests. It has to pass the judge, it has to pass the jury, just as the objective element in provocation bas (sic) to pass the judge before the Homicide Act.

    It doesn't pass me because I don't accept, and I am quite satisfied in my own mind that it doesn't pass that test, that an ordinary person of normal fortitude in these circumstances, in all of the circumstances, that includes who had various weapons at various times, what distances apart they were, the number of persons involved, what they knew about each other, the location and other matters which I don't enumerate, unless I have to sit down and enumerate them, but the whole circumstance of position, an. ordinary person of normal fortitude of mind would not have submitted to these threats in those circumstances but could have taken other action. And accordingly I will not leave duress on that ground."

79. The complaint made to us is that: the judge applied the wrong test; he did not state himself to have borne in mind the personal characteristics of D4 and D5; he wrongly relied on provocation and the tests to be applied as it stood before the coming into being of the Homicide Act.

80. We do not agree.

81. First there had been evidence, and this was referred to by counsel and clearly taken on board by the trial judge, of D4's age and D5 low threshold of intelligence as being elements of their particular characteristics.

82. When he made reference to pre Homicide Act days he was talking of the position then where it lay for the judge, not the jury, to decide if provocation arose and was using that as an analogy with the present position of duress

83. In Howe⁽¹⁾, and this was not a statement of new law, Lord Hailsham at pare 426 said that the definition of duress contained:

".... an objective element on the lines of their respective directions and this must involve a threat of such a degree of violence that 'a person of reasonable firmness with the characteristics and in the situation of the defendant could not have been exected to resist. No doubt there are subjective elements as well, but, unless the test is purely subjective to the defendant which, in my view, it is not, the answer to the third certified question, like that to the second must be 'yes'."

84. Here, we have no doubt that the trial judge, by the use of the phrase "in all of the circumstances" coupled' with the phrase a few lines earlier "the ordinary person with the characteristics etc." had clearly in mind the right test. It was upon this basis that he exercised his discretion and, had it been necessary to our decision, we would not have interferred with its exercise.

The law now in Hong Kong

85. It has been argued first: that there are matters within this Territory so dissimilar from English circumstances that it is unnecessary, and indeed improper, for us to say that the law in Hong Kong is as stated in Howe⁽¹⁾; second that we are bound by the decision of the Privy Council in Abbott⁽¹⁴⁾ in contradistinction to the later decision of the House of Lords in Howe⁽¹⁾.

86. On the first it was submitted that: the death penalty for murder remains on the statute book in Hong Kong whereas it has been abolished in England; the social circumstances of Hong Kong are very different from those in England; considerations of he Judeo/Christian ethic permeate English decisions, in Hong long no such considerations apply. The multiplicity of races and of moral standards in Hong Kong, be they grounded in religion or not, should make us hesitate long before we adopt what is English public policy. It is, says Mr. Cheng Huan, who added to the general submission of Mr. Frank Won, for this Court in the light of all the Hong Kong circumstances to decide what the public policy here should be unfettered by English decisions.

87. We find it difficult to accept that, in. this community with all its particular characteristics and which we accept is not predominantly Christian, the ordinary man would wish to see a person acquitted of murder by reason of duress who had taken a deliberate and knowing part in the act even if he did not directly participate in the killing.

88. We accept that there can be hard cases. This was considered both in Abbott⁽¹⁴⁾ and in Howe⁽¹⁾. If public opinion be otherwise the legislature can always make provision for a manslaughter verdict where there is compulsion. The Executive has the power to intervene as was done in Reg. v. Dudley and Stenhens⁽¹⁶⁾ where the cabin boy had been eaten to keep alive the other survivors from the wreck of "The Mistinguette". When Dudley and Stephens⁽¹⁶⁾ was decided in 1884 the death penalty for murder was mandatory. The Executive stepped in and reduced that sentence to one of 6 months' imprisonment. All convictions for murder in Hong Kong are considered by the Executive Counsil and in their deliberations they have with them a report from the trial judge. For many years now the mandatory sentence of death has not been carried out and sentences of varying, terms of imprisonment have been substituted for it.

89. On the question of stare decisis, Lord Diplock expressed himself in trenchant terms in De Lasala v. De Lasala⁽¹⁷⁾ where he said at page 557, having referred to Robins v. National Trust Co.⁽¹⁸⁾ and the Australian Consolidated Press Ltd. v. Uren⁽¹⁹⁾:

"So too in Hong Kong, where the reception of the common law and the rules of equity is expressed to he so far as they are applicable to the circumstances of Hong Kong or its inhabitants and subject to such modifications as such circumstances may require, a decision of the House of Lords on a matter which in Hong Kong is governed by the common law by virtue of the Application of English Law Ordinance is not ipso facto binding upon a Hong Kong court although its persuasive authority must he very great, since the Judicial Committee of the Privy Council whose decisions on appeals from. Hong Kong are binding on all Hong Kong courts shares with the Appellate Committee of the House of Lords a common membership. This Roard is unlikely to diverge from a decision which its members have reached in their alternative capacity, unless the decision is in a field of law in which the circumstances of the colony or its inhabitants make it inappropriate that the common law in that field should have developed on the same lines in Hong Kong as England.

Different considerations, in their Lordships' view, apply to decisions of the House of Lords on the interpretation of recent legislation that is common to Hong Kong and England.

90. In Tai Ring Cotton dill Ltd. v. Liu Chong Hing Rank⁽²⁰⁾ Lord Scarman, in delivering the opinion of the Board, referring to the "somewhat faint" suggestion made in relation to an authority being considered that, even if English Courts were bound to follow it, the Judicial Committee was not, said:

"This is a misapprehension. Once it is accepted, as in this case it is, that the applicable law is English, their Lordships of the Judicial Committee will follow a House of Lords decision which covers the point in issue. The Judicial Committee is. not the final judicial authority for the determination of English law. That is the responsibility of the House of Lords in its judicial capacity. ....... It is, of course, open to the Judicial Committee to depart from a House of lords' decision in a case where, by reason of custom, statute, or for other reasons peculiar to the jurisdiction where the matter in dispute arose, the Judicial Committee is required to determine whether English law should or should not apply. Only if it be decided or accepted (as in this case) that English law is the law to be applied will the Judicial Committee consider itself bound to follow a House of Lords' decision."

91. In Her Majesty's Attorney General in and for the United Kingdom v. South China Morning Post⁽²¹⁾ my Lord Kempster J.A., having made reference to the majority decision of a deeply divided House of Lords upon the same issues, said at page 6:

"Such findings (that is of the House of Lords) including those as to the adequacy of damages or an account of profits as a means of protecting the Attorney General's interest, effectively bind this Court before which the same as well as additional arguments are advanced unless some material consideration does not obtain or has markedly less force in the context of Hong Kong."

We do take the view that Howe⁽¹⁾ is declaratory of the common law in England. Some of the same, as well as additional, arguments have been advanced here as, were advanced in Howe⁽¹⁾. We do not think the circumstances of Hong Kong require modification of the decision in Howe⁽¹⁾ such as to exclude it as part of the common law to be applied here.

92. We are fortified in this aspect of the decision to which we have come by the very obvious reluctance in Abbott⁽¹⁴⁾ to apply Lynch⁽¹³⁾ to the full. It is clear from a reading of Abbott⁽¹⁴⁾ that the majority, if it had thought that it lay open to them to do so, would not have followed Lynch⁽¹³⁾. We are therefore of the view, though it is not necessary to our decision on these appeals, that Howe⁽¹⁾ should be followed.

93. Before leaving the subject of duress, one further aspect arises. It has been submitted that the trial judge failed to leave, in specific terms, for the consideration of the jury the facts constituting compulsion and how those facts might affect the intent of D4 and D5.

94. We do not agree. The jury were fully directed as to the characteristics of them both. They were taken in detail through the evidence said to create compulsion. That all the Defendants said they feared Dl was emphasised. It was left to the jury to consider. what if any intention was in the minds of those Defendants. That, in the context of this case, was enough.

95. We do not consider it necessary to dwell on the submission that, if D4 and D5 had known of the decision in Howe⁽¹⁾, they might have conducted their defence differently. It is not one which found any favour with us.

96. The evidence here was such as to create for the jury, in hearing it and their consideration of it, an unenviable and unpleasant task. We considered, in coming to the conclusion we did, that evidence, its nature, the length of the hearing and any possibility that the jury might have permitted their emotions to overcome them sufficiently to cloud their decision. Having considered all of the circumstances we are firmly of the view that the jury verdicts were proper and that these convictions are neither unsafe nor unsatisfactory.

97. For the reasons given we dismissed these appeals without calling for the assistance of the Crown.

(1) [1987] 1 A.C. 417

(2) [1976] H.K.L.R. 401

(3) [1984] H.K.L.R. 419

(4) [1985] A.C. 905 H.L. (E)

(5) [1986] A.C. 455 H.L. (E)

(6) [1986] 1 W.L.R. 1025

(7) [1987] 85 Cr. A. R. 71

(8) [1979] H.K.L.R. 1 at p.5

(9) Criminal Appeal No. 59 of 1986 (unreported)

(10) Criminal Appeal No. 148 of 1987 (unreported)

(11) Criminal Appeal No. 179 of 1987 (unreported)

(12) [1973] 1 W.L.R. 276

(13) [1975] A.C. 653

(14) [1977] A.C. 755

(15) [1966] 1 W.L.R. 1234

(16) [1884] 14 Q.B.D. 273

(17) [1980] A.C. 546

(18) [1927] A.C. 515

(19) [1969] 1 A.C. 590

(20) [1986] 1 A.C. 80

(21) Civil Appeal No. 114 of 1987 (unreported) - "Spycatcher”