HKSAR v. LIN SIU LUN AND OTHERS

CACC 10/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.  10 OF 2006 

(ON APPEAL FROM HCCC NO. 300 of 2004)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court) :

Introduction

1.  These proceedings are concerned with applications for leave to appeal against conviction.

2.  The applicants, Lin Siu-lun (D1), Lau Cheuk-wah (D2), Lau Ho-nam (D9) and Cheng Sze-lok (D10) respectively, were charged in the 1^st count of the indictment with the murder of Wong Wai-hung (the deceased) which allegedly occurred on or about 7 March 2004.

3.  D1 faced an additional count of conspiracy to prevent the lawful burial of a corpse, contrary to Common Law and sections 159A and 159C of the Crimes Ordinance, Cap. 200 (count 3).  Five other conspirators were named in this count.  They were Wong Chi-kwong (D3), Ho Sau-ling (D5), Shit Chi-wo (D6), Kwok wai-tak (D7) and Cheng Chui-mei (D8).

4.  The 2^nd count on the indictment charged D3, Wong Tsz-kei (D4) and D6 with having conspired with D1 (who was not a defendant in this count) to cause grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212 and sections 159A and 159C of the Crimes Ordinance.

5.  The prosecution’s decision to proceed against D1 on the comparatively minor conspiracy alleged in count 3 enabled them to join D3, D5, D6, D7 and D8 in the murder trial even though none of them was charged with murder.  All of these defendants had commented in their video-recorded interviews with the police upon D1’s role in a way which was highly prejudicial to him.  Furthermore, the link to D3 and D6 through the 3^rd count enabled the prosecution to include in the same indictment the conspiracy in count 2 involving not only D3 and D6 but D4 also.  Again, the evidence on this count was extremely prejudicial to D1.  This led counsel for D1 (and D2) to apply for severance of the murder count before the jury was sworn.  The judge’s rejection of this application formed an important part of D1’s application for leave to appeal against his conviction on counts 1 and 3.

6.  Voir dire proceedings also took place to determine the admissibility of a number of the interviews conducted by the police.  When these had concluded, D2 fell ill.  His trial was then adjourned until a later date which gave him the benefit of severance in spite of the judge’s rejection of his application for it.  The trial then proceeded against all the remaining defendants except D4 who pleaded guilty to the 2^nd count on the indictment.  D3 remained in the trial on the 2^nd count, having pleaded guilty at the outset to the 3^rd count.

7.  On 2 December 2005, following a trial before Pang J, D1 was convicted by the jury on the 1^st count of murder and the conspiracy alleged in count 3.  On the same date, D9 and D10 were acquitted of murder but convicted in the alternative of manslaughter.

8.  On 2 May 2007, in the 2^nd trial also before Pang J, the jury convicted D2 of murder.

9.  We shall deal with the applications of D1, D9 and D10 arising from the 1^st trial before considering D2’s application in regard to the 2^nd trial.

The prosecution’s case in the trial of D1, D9 and D10

10.  The body of the deceased, Wong Wai-hung was found lying in the street near Hung Hom Ferry Pier at about 6:30 a.m. on 8 March 2004.

11.  Dr Lai Sai-chak, the pathologist who conducted a post mortem later on 8 March 2004, found numerous injuries on the deceased’s legs, arms and back, as well as injuries to other parts of the body.  In particular, Dr Lai noted that there were about 100 injuries on the deceased’s back.  The age of the injuries he found on the body varied.  By agreement, the jury were provided with a copy of Dr Lai’s report (exhibit P1).  Significantly, this revealed that Dr Lai had found no fractures or physical injuries to any internal organs and comparatively few injuries to the deceased’s head, neck, chest and abdomen.

12.  Dr Lai concluded that the time of death had been between 9 p.m. on 7 March 2004 and 3 a.m. on 8 March 2004.  The oldest wounds were about 2 weeks old and the most recent ones were within a few days of the examination.  Whilst none of the injuries was life-threatening in itself, in their totality possibly, according to Dr Lai, numbering hundreds, they were a threat to life.  The cause of death was “pneumonia and acute renal failure due to physical abuse with extensive soft tissue injuries”.  Dr Lai said that the acute renal (kidney) failure was consistent with having been caused by decreased blood supply due to bleeding and bruising, infection through untreated wounds, muscle damage, negative fluid balance and shock due to a particularly heavy beating.  The bronchopneumonia, found at the post mortem, was probably caused by general weakness, chest pain and bacteria entering the bloodstream.

13.  In short, therefore, the prosecution’s case was that the beatings to which the deceased had been subjected over a period of about two weeks had caused wounds and bruising.  These had, in turn, led to acute renal failure and pneumonia which had brought about the death.

14.  The motive for the assaults appears to have been connected to arguments about a debt owed by the deceased to D1.  Evidence as to what occurred in these beatings was mainly, though not entirely, derived from the video-recorded interviews of each of the applicants.

15.  Amongst other incidents described in the interviews, D1, D9 and D10 each referred to a particularly serious attack on or about 1 March 2004 which continued on 2 March 2004.  This involved one or two folding stools.  The judge, when summing up, said:

“

The doctor was of the opinion that significant injury was suffered at least several days ago from the time when he examined the body.  Dr Lai, in his oral evidence, said ‘the most probable cause’ – that means there must be a certain particular beating which led to those severe injuries leading to low blood pressure and shock resulting in renal failure.” (Appeal bundle pp. 32-33)

16.  Again, from the descriptions given by D1 during his interview on the subject of the deceased’s physical condition, Dr Lai commented upon references to the deceased having shortness of breath, complaining of dizziness, looking pale but still being able to walk and live normally for several days after the most severe beating.  This was, he considered, consistent with renal failure, the symptoms of which would become apparent only some days later.  The injuries to the deceased’s back were consistent with having been struck with a folding stool after the removal of the rubber ends of the legs.

17.  Based on the interviews conducted by the police with each of the applicants, the prosecution alleged that the injuries fell into two main categories.

18.  The first category of injuries, which formed the basis of the 2^nd count against D3, D4 and D6, occurred on an unknown date in the latter part of February 2004.  Based upon the interviews of those defendants, the deceased’s feet, knees and legs were struck with metal pipes by D3, D4 and D6, and possibly others.  These events took place at a flat in Man On Street, Tai Kok Tsui, where D6, D7 and D8 lived.

19.  The second attack was in two parts, occurring on 1 and 2 March 2004 at D2’s flat at Wong Chuk Street.  Numerous injuries were inflicted on the deceased’s back and to other parts of his body.  D1, D2, D9 and D10 were all alleged to have participated physically in this attack using fists, metal pipes, folding stools, a broken mop handle and a strap or belt.

20.  The evidence as to this event was largely contained in the interviews of D1, D9 and D10 (and, in the 2^nd trial, in D2’s interviews).

21.  However, Chan Hoi-ying (PW15), D2’s girlfriend, also provided significant support about what had taken place in her testimony about this episode.  She had been present at the flat at the time, albeit she remained in the kitchen where she was unable to see what was going on during most of the time the attack was taking place.  She had tried to avoid hearing what was happening by listening to music through earphones.

22.  Evidence was also put before the jury of some relatively minor assaults and injuries which had occurred on other occasions within two weeks of the deceased’s death.  This evidence was covered by facts (emerging from the interviews) which were admitted under section 65C of the Criminal Procedure Ordinance, Cap. 221, as follows:

“	(i)	Lin Siu-lun [D1] admitted that on or about 27th or 28th February 2004 at his premises at Scene 1, he punched the deceased’s body, abdomen and back 5 to 6 times;
	(ii)	Lin Siu-lun [D1] admitted that on or about 29th February or 1st March 2004 at Scene 1 he hit the deceased’s legs with the wooden pole of a mop 3-4 times.  The wooden pole broke as a result;
	(iii)	Wong Chi-kwong [D3] admitted that he together with 3 others (not the accused) had assaulted the deceased in late February 2004 by hitting the deceased’s feet with a metal pipe at Scene 1 and Scene 3.  He stated that he had assaulted the deceased no more than 10 times, and on every occasion the assaults consisted of hitting the deceased’s feet with a metal pipe;
	(iv)	Shit Chi-wo [D6] admitted that about 2 weeks before 13th March 2004 at Scene 3, he and 3 others (not the accused) had assaulted the deceased by hitting him on his legs and knees with a water pipe for about half an hour.”

23.  “Scenes” 1 and 3 described in the Admitted Facts related, respectively, to: (1) Room A, 7/F, 78 Tai Nam Street where D1, the tenant, and the deceased, who D1 apparently regarded as his “friend”, lived; and (3) Room A, 6/F, 26 Man On Street, Tai Kok Tsui where D6 was the tenant.  “Scene 2”, another address relevant to these proceedings in the context of the attack on the deceased on 1 and 2 March 2004, was the flat where D2 lived.  This was situated at Room 3, 5/F, 1G Wong Chuk Street.

24.  The prosecution based their case on the totality of the evidence concerning the assaults involving D1, D9 and D10 (as well as D2), alleging that the injuries caused in the attack in which one or more folding stools were used amongst other items used to inflict pain on the deceased, must have been a significant cause of death.  It was accepted by the prosecution that there was no intention to cause death but it was contended that really serious bodily harm must have been intended when the injuries, so graphically demonstrated in the exhibited photographs, were taken into account.  If so, it was alleged that the actions of these applicants amounted to murder or, at the very least, was sufficient to establish manslaughter depending on the jury’s analysis of the admissions made by each of the applicants in their interviews.

25.  The interviews with the police were lengthy. Taking these as shortly as we can, D1 was arrested by the police on 12 March 2004.  He said that he “just hit [the deceased] several times”.

26.  In a video-recorded interview later that day, D1 said in essence, when dealing with his involvement in violence, that he had taken the deceased to D2’s flat on about 1 March 2004 where he found ‘Ah Nam’ (D9) and ‘Ah Lok’ (D10), friends of D2, when he and the deceased arrived there.  In the course of what followed, D2 “spiked” the deceased’s back 20-30 times with a knife handle, causing the deceased’s back to bleed.  He was also kicked and struck with a water pipe with great force.  The deceased lay on the floor, moving slightly, and at that time D2 and D9 jumped up and down on him.  D2 hammered the deceased on the kneecap with a folding stool until the stool broke.  D2’s girlfriend, Chan Hoi-ying, arrived at some stage.  Later, D2 told D1 to keep an eye on the deceased.  He became angry at having to do so and admitted that he had given the deceased a few kicks at that time.

27.  D1 went on to describe how, on about 1 or 2 March, the deceased was taken to D6’s flat at Man On Street, Tai Kok Tsui, by which time the deceased was “walking like a cripple in pain”.

28.  D9 was arrested on 30 March 2004.  He admitted that he knew D2 as they had worked together in the scaffolding business.  He met the deceased twice at D2’s flat but could not recall the dates clearly.  Dealing with the violent episodes which he either witnessed or in which he was involved, D9 said that on the first occasion the deceased was beaten only with fists.  The second time, he went there with “Ah Lok” (D10).  D2 and his girlfriend were there.  “Ah Joe” (D1) and the deceased arrived later.  He stated that D1 and D2 beat the deceased with fists and that he (D9) then joined in and beat the deceased, first with fists and then with a folding chair about ten times.  Others then beat the deceased on the arms, back, legs and feet with a metal pipe.  D9 said that he beat the deceased because he was “not so happy that day” and was “angry”.

29.  D10 was arrested on 12 April 2004 and interviewed both on that day and on 13 April 2004.  He stated in essence, again with reference to the incidents of violence, that in February 2004, “Ah Joe” (D1) brought “Ah Hung” (the deceased) to “Ah Wah’s” (D2’s) flat.  There, D1, D2, D9 and D10, he said, all took part in hitting the deceased using fists and feet.  On a second occasion, D1 brought the deceased to D2’s flat, bringing a metal pipe with him to hit the deceased.  The deceased was hit by D1, and then by D2, on the arms, back and legs with the metal pipe.  His back bled and there was blood on the wall.  D9 then used a folding chair to hit the deceased and D10 punched him.  D1 said that the deceased owed him money.  D9 and D10 then left to go drinking, and returned to D2’s flat later.  D2’s girlfriend came up to the flat at which stage the hitting seemed to have finished.  The beating in which the metal pipe was used lasted, according to D10, about two hours.

30.  In each case, the main issue for the jury to determine, if they were satisfied that the lengthy beating on about 1 and 2 March 2004 had caused the death, was the intent of each applicant when engaged in this course of assault.

31.  The evidence given by Chan Hoi-ying (PW15) was that she had seen the deceased twice at D2’s flat in about February / March 2004.  On the first occasion, the deceased was brought there by D1 who scolded and criticised the deceased for owing them money.  D9 and D10 arrived later.  D1 and D2 assaulted the deceased using their hands and feet.  She became frightened and went into the kitchen where she turned on some music so that she could not hear what was going on.  She later left the flat and, when she returned, she went straight into the kitchen.  The men discussed using a leather belt to hit the deceased and she subsequently noticed 10-15 abrasions, some fresh, on the deceased’s back with blood oozing from them.  She wiped his back with a towel.  Later, D1, with the deceased, D9 and D10, left the premises.

32.  On a second occasion, Chan Hoi-ying said that after D1 brought the deceased to the premises, D9 and D10 then arrived.  The deceased wished to leave but D1 and D2 would not allow this.  The deceased could barely walk at that time.  D2 assaulted the deceased with fists and an iron pipe and she noticed blood oozing from the deceased’s jeans and onto a mattress where he had been sleeping.

Defence case

33.  D1, D9 and D10 did not give evidence at their trial but the presentation of their cases involved casting doubt on the reliability of some of the answers given in various of the interviews.  It was argued, in addition, that the interviews contained no actual confessions to any of the counts before the jury and, in particular, that the evidence on count 1 failed to establish an intent to cause grievous bodily harm.  It was also submitted that the assaults in which the applicants had participated had not been proved to have caused the death.

34.  In D1’s case it was argued that the assault he had described, by kicking the deceased after the “folding stools” attack had finished, was an entirely separate event and no part of the joint enterprise attack involving the other three men.

35.  It was made known to the jury in the cases of D9 and D10 that they had offered pleas of guilty to assault occasioning actual bodily harm, by way of alternative to the 1^st count, which the prosecution had rejected.  It was submitted to the jury that this was the true extent of their involvement before they had withdrawn from the enterprise by leaving D2’s flat.

36.  In regard to the 3^rd count, it was contended that the admissions made by D1 failed to establish even the basis of a conspiracy of the kind alleged against him.  On this count, the only evidence against D1 came from the admissions he had made to the police.

Grounds of appeal

D1’s grounds: (1) Failure to order severance of trials

37.  The principal submission under the 1^st ground of appeal advanced by Mr Coghlan, who also appeared for D1 in the court below, was that the judge had wrongly rejected his application to sever the trial of D1 (together with D9 and D10) on the 1^st count of the indictment from that of D3 and D6 on count 2 and from D5, D6, D7 and D8 on count 3.

38.  The main reasons put forward on D1’s behalf for severance were essentially that a large proportion of the interviews relating to the other five defendants whose cases it was sought to exclude from the 1^st trial referred to the 2^nd count on which only D3 and D6 remained to be tried and included a considerable amount of highly prejudicial material contained in their interviews which was bound to have an adverse effect on D1’s case on counts 1 and 3.

39.  Mr Coghlan’s submissions at trial were, at a time before D2 became ill, effectively supported by counsel for D2.  However, to complicate the issue, other counsel, including counsel for D9 and D10, opposed the applications for severance having taken the view that the evidence, taken as a whole, was more likely to favour their presentation of the defence.  Counsel for D9 and D10 particularly felt that the issue of causation in relation to the death of the deceased could be argued with a greater prospect of success if the jury were made aware of the earlier assaults on the deceased covered by count 2.

40.  Obviously, the task confronting the judge in making a ruling which was fair to all concerned was a difficult one.  The interviews were voluminous.  Ultimately, the judge ruled against severance (and also some editing of the interviews which had at one stage also been raised).

41.  One of the questions upon which we have clearly had to focus in D1’s case is whether the judge’s ruling left D1’s case unfairly prejudiced by the statements, often containing hearsay comment, of co-defendants.  Many examples were chosen to illustrate the point.  One, which was neutral to D1 but was typical of the problem, was expressed by Mr Coghlan (page 1784), when addressing the trial judge on this matter, to the effect that it was very prejudicial if someone said “I heard [D2] was beating up the deceased with great vigour.  I wasn’t present but everyone told me this.”

42.  Although that particular example related to D2, Mr Coghlan put forward a number of other examples in schedule form to illustrate the prejudice he suggested was caused to D1.  These included, to take a few of them, the description given by D5 in his interview about how D1, with D3, D4 and D6, struck the deceased at D6’s address when this went only to count 2 and was evidence only in D5’s case.  D1 had made no admissions at all in relation to this episode and he was not even charged in the 2^nd count.  Later, in the same interview, D5 referred to D1 telling her that D2, D9 and D10 had beaten the deceased with folding stools which were broken as a result.

43.  In D6’s 1^st interview, he referred to an episode, not apparently covered by any of the events we have mentioned earlier, when D1, D6 and D7 were together and D1 punched the deceased for 35 to 45 minutes.  Later, in the same interview, he said that D1 had told him that D2 hit the deceased 440 times with a stool and D1 and D2 burnt the deceased’s private parts.  In a 2^nd interview, D6 said that D1 had asked D2 if the deceased had been given floor cleaner to drink to which D2 had replied in the affirmative.  D6 said that he had not been present when (and if) floor cleaner had been given to the deceased.

44.  D7 described, in his 1^st interview, a conversation with D1 in which D1 had admitted hitting the deceased with D2.  In his 2^nd interview, D7 said that D1 told him that his neck was hurting from hitting the deceased and that D1 had burnt the deceased’s private parts.

45.  D8, in her 1^st interview, described seeing D1 hitting the deceased with an iron pipe and she said that she had heard that D1, D3, D9 and D10 had beaten the deceased.  She was told by D7, also, that D1 had burnt the deceased’s private parts.  In a 2^nd interview, she described “morning exercises” when D1 and D2 hit the deceased with a crutch while D8 watched.

46.  Mr Coghlan set out many of the prejudicial answers given by co-defendants alongside the admissions D1 had actually made about his involvement in violence in an endeavour to demonstrate the extent of the prejudice caused to D1’s case by the introduction of such material.  A significant aspect in this regard was, as we have said, that the jury came to learn about the assaults upon the deceased, arising from the conspiracy allegation in count 2 against D3 and D6, in which D1 was described by them as playing a part, when there was no admissible evidence against D1 on this count that he had even been present during that episode.

47.  Mr Bell’s contention on the respondent’s behalf was that the events leading up to the deceased’s death were all alleged to have been part of a continuing sequence of events as envisaged by Rule 7 of the Indictment Rules governing the joinder of offences in one indictment.  The joinder of D9 and D10 with D1 was, as all counsel agreed, inevitable as they were alleged to have been jointly engaged in the attack which, according to Dr Lai, led to the injuries which in combination were likely to have significantly contributed to death.  Furthermore, counsel for D9 and D10 would, Mr Bell argued, in any event have introduced evidence of the earlier assaults covered by count 2, assuming this count had been severed, in order to raise a doubt about the suggestion that the injuries caused in the attack when folding stools were used significantly contributed to the death.

48.  With regard to count 3, which Mr Coghlan suggested should have been severed in such a way that would have enabled D1 to be tried apart from those alleged to have conspired with him, Mr Bell argued that severance would have been wholly illogical when all of those named in the 3^rd count were accused of acting together in a single course of conduct to prevent a lawful burial and when the remaining defendants (except D2) regarded it as being in their interests to have a single trial.

49.  Mr Bell also pointed to the fact that the evidence was not especially complex and the charges were not so numerous that a jury might have had difficulty in identifying the admissible evidence against each defendant at trial.  Similarly, the judge, when ruling against severance, had observed that:

“	With only three counts on the indictment, this is not a case where the evidence is so entangled that it would require Olympian efforts to disengage the evidence of one count from the other two counts.” (Appeal bundle p. 1966)

50.  As to the approach the jury had to take to the evidence they had heard, Mr Bell pointed out that the judge, in the strongest possible terms, had directed the jury as follows:

“

You must bear in mind one very important point.  What a defendant said to the police is only to be used when considering whether a charge has been proved against the person who said it.  I repeat.  What a defendant said to the police is only to be used against that person when you consider the charge against him.  It is not to be used, subject to what I say later on – I repeat, it is not to be used, subject to what I say later on, against other defendants.  The reason for this is simple.  When a defendant said something or made a statement to the police, the other defendants were not there.  They had no opportunity or chance to contradict the allegations by the defendant who made the statement.  You must therefore disregard any such allegations by a defendant against other defendants in his statement.” (Appeal bundle p. 38)

51.  Overall, however, Mr Bell accepted that the interviews of D3, D5, D6, D7 and D8 contained material which was highly prejudicial to D1’s case but he explained that he had resisted the application for severance to avoid the necessity for further trials after the murder trial had concluded.  As to this, we say no more than that expediency is not a valid reason for holding together counts in an indictment, though properly joined under the Indictment Rules, where considerable unfairness is almost bound to result to some or any of those who are to be tried.

52.  Here, the unfairness to D1 was manifest and the severance of his trial (together with D9 and D10, and D2 if he had been fit) could easily have been achieved without causing any unfairness to the prosecution or the defence.  The conspiracy in count 3 was, in any event, an unnecessary allegation to make on an indictment for murder against D1 but the addition of five other defendants, all of whom had given interviews containing answers which were highly prejudicial to D1 ought to have been enough to alert the prosecution to the very real dangers of unfairness to D1 if severance was not ordered.

53.  Further to this, the 2^nd count was drafted in the following terms:

	“Second Count	(against 3rd, 4th and 6th accused only)
	Statement of offence
Conspiracy to inflict grievous bodily harm, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.
	Particulars of offence
Wong Chi-kwong, Wong Tsz-kei and Shit Chi-wo, on divers days between 15th day of February, 2004 and the 1st day of March, 2004, in Hong Kong, conspired together with Lin Siu-lun to unlawfully and maliciously inflict grievous bodily harm upon Wong Wai-hung.” (Appeal bundle pp. I-II)

54.  This count, as can readily be seen, left D1 named in the particulars as a conspirator with D3 and D6 (D4 pleaded guilty), yet D1 was not himself charged with this offence.  Mr Coghlan’s submissions, putting them shortly, were, firstly, that wording of this charge was itself highly unusual in that the prosecution had alleged a conspiracy to cause grievous bodily harm contrary to section 19 rather than section 17.  Furthermore, without any need to defend himself upon it when he was not charged with this offence, D1 nevertheless found himself alleged to be a conspirator on a charge where, other than through the confession statements of D3 and D6, the jury would otherwise have heard nothing about this episode at all.

55.  This last contention, which we have touched upon in relation to severance, was unquestionably correct and was bound to have led to considerable prejudice to D1’s case.  The ‘section 19’ point, however, was that the charge made no sense as it stood and was self-contradictory.

56.  Section 19 of the Offences Against the Person Ordinance is the offence of unlawfully and maliciously (wounding) or inflicting any grievous bodily harm upon any other person with or without a weapon or instrument.  This offence, for which a maximum sentence of 3 years’ imprisonment is provided, does not carry with it the specific intent contained in section 17.  Under section 17, a person who unlawfully or maliciously (wounds) or causes grievous bodily harm to any person “with intent … to do ... grievous bodily harm” is guilty of an offence carrying a maximum of life imprisonment.

57.  The point made by Mr Coghlan was that it must follow, both in law as well as logic, that where there is a conspiracy to bring about grievous bodily harm to another, the agreement must necessarily involve an intention to cause grievous bodily harm to that other person. 

58.  Hence, it was contended not only that the charge was wrongly drafted but also, more importantly in the present context, that it was a count which, as it stood, left D1 exposed to the possible suggestion that if, as occurred, D3 and D6 were convicted by the jury on count 2, D1 might, by necessary implication, be regarded as having engaged in an agreement to cause grievous bodily harm to the deceased.  If so, the intent, which was a vital ingredient on the murder count, might, from the findings reached on count 2 against D3 and D6, in some way have been taken into account by the jury against D1.

59.  Having regard to the combination of factors we have considered, we are, with respect, in no doubt that the judge ought to have made an order, in the exercise of his discretion, severing the 2^nd count from the trial on the 1^st count of D1, D9 and D10.  All the evidential material in relation to the 2^nd count arose from the interviews of two co-defendants (D3 and D6), neither of whom was charged with murder.  There was nothing legitimately to be gained by a joint trial of counts 1 and 2 and massive prejudice, at least to D1, was bound to result from it.

60.  Similar considerations apply to the severance of D1’s co-defendants in the 3^rd count (of conspiracy to prevent the lawful burial of a corpse) where, albeit it has not been necessary to set out the accounts given by D3, D5, D6, D7 or D8 in any detail, a great deal of prejudice against D1 was bound to arise from their interviews on this comparatively minor offence which Mr Bell conceded was based upon weak evidence of D1’s involvement.  It was, therefore, a link of the most tenuous kind which existed between D1 and his co-defendants on this count which itself had provided a further tenuous link to count 2.  We have concluded, therefore, that the judge erred in failing to exercise his discretion to sever the trial of D1’s co-defendants in count 3 from D1’s trial on that count.

61.  In the circumstances, with the prejudice which was bound to flow from the error, we consider that the joinder of count 2 and of D1’s co-defendants in count 3 with count 1 amounted to a material irregularity at trial.

(2) The adequacy of the summary of D1’s case

62.  In the 2^nd ground of appeal, Mr Coghlan submitted that the judge had failed to summarise the essential elements of D1’s case to the jury in that they were reminded only about the most incriminating answers D1 had given in interview, sometimes taken out of context.  The jury, it was argued, were never given D1’s version of events in its wider context.  In effect, Mr Coghlan submitted that the jury were given a distorted summary of D1’s account to the police which put his case in an unfair light.

63.  In response, Mr Bell submitted that it was not for the judge to conjure up a defence for D1 which might have been raised had D1 given evidence and, in any event, the jury had been provided with a full transcription of D1’s interviews.

64.  Mr Bell also laid emphasis on the fact that it was D1, on any view, who had taken the deceased to D2’s residence against his will as the deceased expected to be beaten up if he went there.  D1 had then, by his own admission, remained at D2’s flat throughout the time that serious assaults on the deceased took place and he had later assaulted the deceased himself.

65.  The judge’s summary of D1’s account to the police occupied about 6 pages of transcript in the summing up (pages 40-46) whereas the interviews transcriptions covered over 300 pages.  This is no criticism in itself provided, of course, the judge was able to achieve a fair and balanced summary.  The judge began with the answer D1 gave on arrest, to the effect that he had only hit the deceased several times and that he did not know the deceased would be “hit to death”.  This statement was clarified in the 1^st video-recorded interview (the only interview of real significance) which followed shortly afterwards and the jury was reminded that D1 had said that he had not beaten the deceased to death.

66.  The summing up on this aspect of the case then continued in these terms, with the judge making reference from time to time to counter numbers alongside the questions and answers:

“	Then at 125 the 1st defendant spoke of talk of settling a debt.  At 188 – this might be of help to you – 188, he was asked: ‘How did you beat him?’ – ‘him’ meaning Wong Wai-hung [the deceased].  He said:
	‘	I told him to make phone calls to ask for a loan.  Then he called two or three friends but he couldn’t borrow any money.  After that, later, I came up to him and punched him in the abdomen only.’
	‘	The abdomen?’
	‘	The back as well … that means with the fist, casually.’
	‘	I will repeat it to you, by “he” you meant …’
	‘	That means the deceased Wong Wai-hung.’
	‘	Wong Wai-hung?’
	‘	Yes.’
	‘	By “he” you meant Wong Wai-hung?’
	‘	That’s right, that’s right.’
	‘	You used a fist?’
	‘	Huh.’
	‘	To beat his abdomen – abdomen?’
	‘	Yes.’
	‘	…’
	‘	And which part?’
	‘	Er, his body – that means, the back, about five or six times.’
	So the 1st defendant admitted that he beat Wong Wai-hung on that occasion.
	Over to counter 373: ‘There was a floor mop stick.’  ‘Yes.’ ‘It was very short.’  ‘Yes.’  ‘It’s very short.  Then I used it to strike him on the leg.  That means hit him on the leg.’  ‘Him’ of course is referring to Wong Wai-hung.
	‘	378 : Because I was too - - I felt so much pain in the neck, I couldn’t use – because for instance, once I moved my hand, I felt pain in the neck.  I can still feel the pain in the neck now, so I could not help using that stick to beat him.’
	‘	Yes.’
	‘	To strike, put it simply, on that, that day, do you remember what date it was?’
	‘	That day, it’s around …’
	There was no answer.  ‘The day the floor mop stick was used - -used.’  ‘It should be around … 29th, 29th to the 1st.  That means in sequence, those incidents happened one after another.’  Follow that on to 393.” (Appeal bundle pp. 42-43)

Pausing here, these two incidents of violence which the judge had described played no part in the joint assault with others involving the folding stools.  These were individual assaults committed by D1 on the deceased when acting on his own and were in any event part of the admitted facts (see: paragraph 22 above).  Although these assaults were relevant and admissible against D1, they were not, it has to be emphasised, relied upon by the prosecution as having contributed to the death of the deceased.

67.  The judge then continued some 500 counters further on in these terms:

“	Then the next passage you may find to be helpful is 893 to 897.  893:
	‘	That’s right.  Then, later on, he told me, he told me that if I could not go home, that means, if - - that means, how can I put it, he said I must keep an eye on Ah Hung, if I didn’t keep an eye on Ah Hung, he would not allow me to go home.  Well, however, at the time, you’ve got to understand this, Ah Sir, my girlfriend, Ah Ling, Ho Sau-ling, was still at home, I became very angry then, thinking that it was you bastard who put me in this situation.  I kicked him a few times.  I did kick him a few times, I admit it.  That means I admit did kick him at that time.” (Appeal bundle p. 43)

68.  The judge made no comment about this admission but, as Mr Coghlan pointed out, it was a confession to an assault which, on the defence presentation of the case, was committed not as part of the joint venture involving a series of very serious assaults but, subsequently, when the serious assaults had ended.  No intent to cause grievous bodily harm, he argued, could be inferred from the part of D1’s account to which the judge, in this context, had referred.  As such, whilst the judge had directed the jury in general terms about joint participation in a criminal enterprise, he had failed, it was submitted, to provide the jury with any directions in law about how to approach a confession of this kind.

69.  When the judge continued to summarise D1’s account of his involvement, he reminded the jury of matters which D1 said had taken place after the assaults had ended and before the deceased died.

70.  The criticism of the judge’s summary was that it failed to set out what, in essence, had been D1’s account to the police particularly in regard to the way the jury might view his intent.  Mr Coghlan pointed out that D1’s account had begun with his making up an excuse, after D2 had telephoned, to prevent the deceased being assaulted by D2.  When D2 telephoned on the following day, D1 said that he would collect the deceased’s pay and that D2 should not beat him.  If, however, D2 did beat the deceased, D1 told him that he should only do so “a few times”.  D2 told D1 that he had sniffed ‘K’.  Later, the deceased was taken to D2’s address by D1 after the deceased had agreed to go there but he became “very frightened on the way”.

71.  Again, with regard to these admissions by D1, the judge made no reference to them in the context of his directions on joint participation when Mr Coghlan’s argument was that this was evidence, in a mixed statement, which might be taken as an illustration that D1 was not engaged in a joint enterprise with the others to inflict grievous bodily harm upon the deceased.

72.  In the assaults that occurred after D1 had taken the deceased to D2’s address, where D9 and D10 were already in attendance, D1 said that he told them to stop what they were doing on a number of occasions.  D1 described (pages 533 – 538 of the appeal bundle) how, amongst other things, after D2 had taken out a scaffolder’s knife and chopped the deceased using a part of the knife some “20 to 30 times” causing him to bleed on his back, he told them not to beat him and said “it was no use beating him further”.

73.  D1 went on to say (page 539) that D2 then struck the deceased on the leg with a hollow copper pipe.  However, D9 and D10 then joined in the attack “10 to 20 times” on the deceased with kicks and punches and D1 said:

“	Then I, I could not stop it even if I tried, the two of them had joined [D2] in beating [the deceased].” (Appeal bundle p. 541)

74.  D1 described (page 541) how the deceased went to the floor and how the deceased, addressing D1 by his nickname, said: “Ah Joe, tell them not to beat me”.  D1 said to the others: “Damn it, stop beating him” and he continued:

“

… are you trying to beat him to death, (he’ll) get (his) salary several days later, would you wait for a few days, if you don’t have money, I could give money to you to buy a stored-value card for use first.(’)  Well, then, while Ah Hung [the deceased] was wriggling, he [D2] jumped onto Ah Hung’s body from the floor, then (he) jumped off to (the floor), (he) jumped - - that means, up and down, (he) jumped in this way 3 or 4 times.” (Appeal bundle p. 542)

75.  After that, D1 described how D9 jumped on the deceased once and how D2 stated that he (D2) was “burning” which, according to D1, meant that D2 was “very angry”.  D2 went into the kitchen and came back with a folding stool which (page 547) he “aimed at [the deceased’s] knee-cap and kept banging it on his knee-cap” before the stool broke.  Then, D2 fetched a second folding stool to “bang it on [the deceased’s] back”.  This left the marks of injury and D1 said:

“	I came up, trying to stop it, but I couldn’t stop it - that means it’s not correct to say that I came up to stop it … If I came up to give help, it’s almost certain that I would be beaten, too … I had the wish that I could tell him not to beat him.” (Appeal bundle p. 549)

76.  According to D1, he then tried to persuade the others to wait a few days and said:

“	If [the deceased] didn’t give you the money, I would pay you myself; don’t beat him, you beat him if he can’t get his salary, who will repay me the money? … I admit I did say that.” (Appeal bundle p. 550)

77.  In the course of the summing up, the jury had been directed (page 20) that mere presence at the scene of the attack was not a sufficient basis on which to convict and no criticism has been made of the general directions given to the jury (pages 18-19) about joint enterprise.  The judge had told the jury that “the essence of joint responsibility for a criminal offence is that each defendant shared a common intention to commit the offence and played his part in it, however great or small, so as to achieve that aim”.  The jury were further directed that:

“

… if looking at the case of any defendant, you are sure that he committed the offence on his own, or that he did an act or acts as part of a joint plan or agreement with the others to commit it, then he is guilty.  To put it simply, the question for you is ‘were they in it together?’” (Appeal bundle p. 19)

78.  The complaint in D1’s case is that these directions did not go far enough in that they were not tailored to deal with any of D1’s explanation that he had played no part in the joint enterprise with the others, at least so far as any common intention was concerned and in particular did not inform the jury what in law were the consequences of D1’s protestations, if they accepted they may have been uttered.  All that the judge had done was to give the jury a selection of D1’s answers describing individual assaults on the deceased which, on one reading, the jury might not have regarded as part and parcel of the series of the really serious assaults relied on by the prosecution to establish a significant cause of death.

79.  Important evidence, also relied upon by the prosecution to establish D1’s joint participation in the killing, came from D2’s girlfriend, Chan Hoi-ying (PW15).  Her evidence about D1’s participation (with D2) in assaulting the deceased was described by the judge in these terms:

“	She saw the 1st defendant and Ah Wah [D2] assault the deceased with hands and legs for about one minute.” (Appeal bundle p. 35)

She went on to describe more serious violence inflicted by D2 who, as the judge reminded the jury in summing up (page 36), at one stage had said “felt tired after beating the deceased” and “was looking for something useful so that he could continue beating the deceased with it”.

80.  Chan Hoi-ying also described a second occasion when D1 brought the deceased to D2’s flat.  When the deceased wanted to leave, D1 and D2 prevented him.  The deceased was having difficulty in walking at that time.  The violence that ensued was described in the summing up in these terms:

“

… The deceased was told to try to walk but he could only walk by leaning against a wall and supporting himself.  He was not steady in his pace.  After walking for a few steps, Ah Wah [D2] punched the deceased several times and hit his knees by using an iron pipe, and scolded the deceased.  The deceased then fell on a tea table and on to the ground which woke up the 9th and 10th accused.  She saw blood oozing out from the deceased’s jeans and knees area and also found blood on the mattress where the deceased had been sleeping previously.  She led the police to a folding stool which she saw at Ah Wah’s place.  This is the gist of the evidence of the 15th prosecution witness.” (Appeal bundle pp. 36-37)

81.  Regrettably, we consider, with respect, that the judge’s summing up contained a material omission in that it failed to identify the case presented on D1’s behalf on the 1^st count to the effect that there was insufficient evidence against him of joint participation in any act of violence, or from anything else done by him, from which an intention to cause really serious injury might be inferred.

Conclusion on D1’s application

82.  We have concluded, for the reasons we have set out, that D1’s conviction for murder (count 1) and conspiracy to prevent the lawful burial of a corpse (count 3) cannot stand.

83.  Accordingly, leave is granted to D1 and, treating the hearing as the appeal, his appeal against conviction on counts 1 and 3 will be allowed.  These convictions and the sentences imposed for them are quashed.

84.  Mr Coghlan very properly made no attempt to resist an order being made for a retrial on the 1^st count in the event that this count was quashed.  We shall make an order that D1 should be retried on a fresh indictment on the 1^st count of murder.  In the meantime, D1 will remain in custody.

85.  While there was some admissible evidence upon count 3 against D1, we do not consider it would be in the interests of justice to order a retrial on this count in view of the gravity of the 1^st count and having regard to the time he has already spent in custody.  In addition, the evidence against D1 on the 3^rd count was extremely weak.

D9’s grounds of appeal

86.  In the grounds of appeal raised by Mr Selwyn Yu on D9’s behalf, it was submitted that the judge’s summing up failed to achieve a proper balance in that the defence case had not sufficiently been left to the jury.  Mr Yu contended that this was particularly apparent in relation to the two main issues raised in D9’s interviews which became the focus of the presentation of his case, namely, withdrawal from the joint enterprise and whether the attack in which D9 had participated significantly contributed to the cause of death.

87.  D9’s admissions during his interviews which were relied upon by the prosecution were summed up by the judge (pages 46-50).  In essence, the jury were reminded that D9 said that at first he had not beaten the deceased (whom he called “Fei Chai”) but that someone else had done so.  When the deceased fought, he (D9) became annoyed with him.  He beat him with fists at first “a few times” and then with a folding chair “about 10-odd times … I used my fists, legs and a folding chair … I held the two legs of the folding chair in my hands … And then I only hit Fei Chai’s arms and hands with it”.

88.  When D9 was asked by the police why he had acted in this way, the judge reminded the jury (pages 47-48) that he had said that he had “not been so happy that day …  Then I went up to Ah Wah’s [D2’s] home thinking I could cool myself down and the like … I went up with [the deceased] and the others … Ah Wah [D2], those people beat him … I was sitting next to Ah Wah now … Then at first Ah Wah asked me: ‘Ah Nam, beat him together’, like that.  Then I said I would not beat him like that, I said.  I had nothing to do with it, wouldn’t beat him like that … Then they kept on beating Fei Chai.  At that time, I was sitting in this position … Well, they kept on beating Fei Chai.  Well, Fei Chai annoyed me.  At that time, Fei Chai was … warding off their blows, hit me. … And then I was angry.  I was already not so happy.  He hit me.  Well, I had nothing to do with that, but [he] hit me, so I was angry …”.

89.  When D9 was asked how long the beating lasted, he replied (pages 48-49) “about 5 to 10 minutes … Ah Lok [D10] had beaten him several times and found something wrong.  Then Ah Lok and I left.  ‘Why don’t we go and have a drink outside lest they cause trouble’, like that”.   D9 was asked how often he had used the folding chair and he replied that he had done so “two or three times.”  He was asked where he had hit the deceased and he said “between the shoulder and the arm”.  When asked if he had seen any injuries, he said that he had only seen bruises “on his lower leg”.

90.  A second, much shorter, interview with D9 was summarised by the judge as follows:

“

… At counters 184 to 187, he said this: ‘Well, why did you follow them and hit him that day?’ ‘Well, then he said he was so repulsive and so on.’ ‘I see.’ ‘Then I only give him several punches, casually.’

225: ‘I was deliberately hitting his arms mostly.’ 233: ‘He was hit, paused, and, he was hit again; he was hit, pause, and he was hit again; pause and he was hit again.  It was like that.  About an hour had passed, then I said I would leave.’  This is his description about, firstly, his involvement in beating Wong Wai-hung and also as to how he beat Wong Wai-hung, and the duration – that is the length of time that Wong Wai-hung was beaten.” (Appeal bundle pp. 49-50)

91.  Mr Yu’s complaint with the totality of the judge’s summary was that although the judge had made reference to D9’s departure from the scene and D9’s general description of the extent of his attack on the deceased which, seen in context, could not, he contended, have contributed in any significant way to death, the judge gave no assistance to the jury as to how the jury should approach this evidence or take it into account.

92.  In addition to the passages selected by the judge, Mr Yu pointed out that D9 had described elsewhere how he had seen D1 and D2 hitting the deceased with fists and kicking him as well as using a metal pipe.  This led (page 1038) D9 to say: “There was some bleeding on [the deceased’s] head and on this part behind his ears … then I immediately asked them to stop … Then I wiped it for Fei Chai with some tissue … Then I asked him whether [they] had beaten Fei Chai on his head … They said they hadn’t”.

93.  Earlier (pages 1028-1030), D9 had said that he “did not know how it would end up if [the deceased] was beaten [up] that way … After that, I tried to persuade [D2].  I asked Ah Wah not to beat him … Then Ah Wah further lost his temper and said: ‘You leave me alone’, and so on … After that, I went out with Ah Lok [D10] … to have [some] alcoholic drinks … After I had finished … I called Ah Wah.  I said to Ah Wah: ‘Why don’t you just ask Fei Chai [the deceased] to leave?’ and the like ... and not knowing for what reason Fei Chai was beaten”.

94.  D9 later described how (page 1057), at about 5.00 am, he had returned to D2’s flat and was let in by D2.  He found the deceased sleeping there although (page 1060) he said that he had told D2 earlier that he would only come back if Fei Chai had left.  D9 described going up to the deceased (page 1061) and thinking that “there was something wrong with him”.  He said to D2: “You guys didn’t do so?” and was told that the deceased was just “sleepy”.

95.  In the overall context of D9’s interviews, it was submitted that the summing up had failed to deal with D9’s attempts to dissuade D2 from assaulting the deceased or with D9’s departure from the scene when he could see how seriously the deceased was being assaulted.  This, it was argued, would have enabled the jury to understand how it might be said that D9 was not a joint participant in the violence inflicted on the deceased.

96.  In reply to these criticisms of the summing up, Mr Bell submitted that the injuries from the attack in which folding stools were used were plainly, on the pathologist’s evidence, a significant cause of death and D9 had admitted not merely being present when it happened but playing a part in it.  A withdrawal after this attack, Mr Bell suggested, was irrelevant, in the light of D9’s acquittal of murder, if the assault in which D9 had participated was a significant cause leading to the death of the deceased.

97.  We were in general agreement with Mr Bell’s reply.  There was considerable evidence of joint participation by D9 during the incident in which numerous injuries were undoubtedly inflicted.  Whilst we do not consider that it was advisable for the judge to have omitted some of the more favourable parts of D9’s account to provide a balanced version of what he had told the police, when these are carefully analysed it is apparent that they were not relevant to any defence in regard to manslaughter.  It would have been a different matter if D9 had been convicted of murder.  The most that these answers could have done was to provide D9 with a small degree of mitigation.  Plainly, the jury were not satisfied that D9 had formed an intention to cause really serious bodily harm himself.  The answers omitted from the judge’s summary of D9’s replies went to this issue and added to the assertion that he had tried to prevent others from inflicting harm of that kind on the deceased.

98.  In short, therefore, once the jury had acquitted D9 of murder, the only real issue left to be decided in his case was causation.  As to this, the judge had, as all counsel accepted, correctly directed the jury.  These directions included the following statement of law:

“

In the case of the 9th and 10th accused, as I said earlier, they admitted to having assaulted the deceased and causing him actual bodily harm, albeit minor bodily harm and that the assaults were unlawful.  The prosecution still has to prove that the assault or assaults contributed significantly to [the deceased’s] death …” (Appeal bundle p. 22)

This direction was accompanied by a written ‘handout’ on the law relating to manslaughter (page 2050) which reminded the jury to bear in mind that what had been said earlier “about the law on joint enterprise” applied not just to murder but to manslaughter as well.  A printed handout was also given to the jury explaining joint enterprise.

99.  In our opinion, as we have already indicated, the omission to deal fully with the answers given by D9 to the effect that he had left the scene at some stage after he had attacked the deceased was not material so far as manslaughter was concerned.  The jury knew from the answers given to the police that D9 had admitted playing a role in the attack when the most serious of the assaults on the deceased were made.  The jury were also aware from D9’s plea of guilty to assault occasioning actual bodily harm that there was no dispute on this issue.  It is, furthermore, apparent from their verdicts in the case against D9, that the jury were satisfied that the injuries in the attack when folding chairs were used were a significant cause of the deceased’s death.

Conclusion on D9’s application

100.  In all the circumstances, we are satisfied that D9’s conviction on the alternative charge of manslaughter was neither unsafe nor unsatisfactory.  Accordingly, his application is dismissed.

D10’s grounds of appeal

101.  Similar considerations to those in D9’s case applied to D10.  Mr Halley, on D10’s behalf, submitted in his 3^rd and 4^th grounds of appeal that D10’s case differed from the others charged with murder in that D10 had made no admission to the use of any weapons at all and he argued that the attack involving folding stools could be regarded as a “wholly separate incident lying outside the scope of the general agreement to simply assault the deceased”.  Mr Halley submitted that there had, in this regard, been a failure on the judge’s part to direct the jury that they had to be satisfied that the fatal injuries were sustained while D10 was “acting within that joint enterprise” and that the acts which caused the death were within the scope of the joint enterprise.

102.  On any view of the admissions made by D10, the assaults on the deceased with the metal pipe and the folding stools took place while he was present in the room.  D10 had described how D9 had used a folding stool to “bash” the deceased (page 1523) and, when D9 stopped, D10 said (pages 1524-1526): “… I went near [the deceased] and added a few extra punches … They stopped, feeling tired … Then I approached him of my own will and added two extra punches … The arms, the back (and) like that”.

103.  It is clear from D10’s description of events that the jury would have been entitled to conclude that he had been a joint participant with the others and not merely an innocent bystander.  The fact that D10 left the premises with D9 after the attack on the deceased because each of them wanted to go out drinking was not to the point.  As we have already stated when dealing with D9’s case, their withdrawal from the scene came after the crucial attack on the deceased which Mr Halley, in his final speech had touched upon with these words:

“	So you have a clear chain of evidence linking the folding stools’ incident, or the attack with weapons, to death.” (Appeal bundle p. 1960)

104.  It is true that Mr Halley’s point to the jury, when effectively accepting that the injuries caused in the folding stools’ attack were a significant cause of death, was that D10 had not himself used a weapon in the attack.  However, his comment to the jury, which immediately followed the passage we have cited from his speech, was: “The 10^th accused had nothing to do with any of that …”.  It was this which the jury had to determine in the light of the judge’s directions about joint enterprise which were in these terms:

“

What is ‘joint enterprise’?  When a criminal offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a joint plan or agreement to commit it, then they are each guilty.  The words ‘plan’ and ‘agreement’ do not mean that there has to be any formality about it.  An agreement to commit an offence may arise on the spur of the moment.  Nothing need be said by any of the defendants at all.  If can be made with a nod and a wink, or a knowing look, or it can be inferred from the behaviour of the parties.  The essence of joint responsibility for a criminal offence is that each defendant shared a common intention to commit the offence and played his part in it, however great or small, so as to achieve that aim.  Your approach to the case should therefore be as follows: if looking at the case of any defendant, you are sure that he committed the offence on his own, or that he did an act or acts as part of a joint plan or agreement with the others to commit it, then he is guilty.  To put it simply, the question for you is ‘were they in it together’?

What is ‘common intention’?  ‘Common intention’ means either that the defendants each intended to cause grievous bodily harm to Wong Wai-hung, or that the defendant whose case you are considering knew that there was a real possibility that his co-defendant might act with that particular intention and, with that knowledge, he nevertheless went on to take part in beating Wong Wai-hung.  The law is that by participating in the attack with that knowledge, he is taken to have accepted the risk that his co-defendant would act beyond what was agreed and so adopts those acts and is responsible for them, even if he would have preferred that they had not been done at all.” (Appeal bundle pp. 18-19)

105.  On the material before the jury, we are satisfied that the verdict in D10’s case was neither unsafe nor unsatisfactory.

106.  There is a final matter, relating to D10’s 1^st and 2^nd grounds of appeal which requires brief mention.  Mr Halley submitted that the judge ought to have directed the jury about their approach in regard to D10’s plea of guilty to assault occasioning actual bodily harm when he was rearraigned on 8 September 2005 on the 1^st count.  It was, he submitted, not sufficient merely for the judge to have reminded the jury that D10 had pleaded guilty to a possible alternative on the 1^st count because this simple direction left the jury with no means of knowing in what circumstances they could find D10 guilty of that offence.

107.  The 2^nd ground of appeal specifically dealt with the judge’s failure to direct the jury on what Mr Halley called “the viable alternative verdict of assault occasioning actual bodily harm”.  Mr Halley asserted in this ground that: “… [D10], who had initially participated in the said assault on the deceased with other offenders, subsequently withdrew when he realised that the other offenders were intending to cause grievous bodily harm to the deceased”.

108.  The assertion of a ‘withdrawal’ by D10 has to be seen in the light of D10’s admitted joint participation in an assault lasting 2 hours (page 1725) which produced injuries that Mr Halley had accepted were a significant cause of death.  Provided the jury were satisfied as to causation of death, there was, having regard to D10’s admissions, no realistic alternative to manslaughter open to the jury.  In such circumstances, it was for the judge to decide whether the alternative of assault occasioning actual bodily harm was left to the jury.  We are surprised to find that this was never canvassed with counsel but we do not consider that the alternative verdict on the evidence before the jury was a viable option in the circumstances of this case.

109.  The factors to be taken into account when the possibility of an alternative verdict arises for the consideration of the jury were considered in R v Fairbanks [1986] 83 Cr App R 251 where the appellant was convicted of causing death by reckless driving and it was argued that the lesser alternative of careless driving ought to have been left to the jury to decide.  Mustill LJ, giving the court’s judgment in which the appeal was allowed, had reviewed a number of earlier authorities on the subject before stating (at page 255):

“	These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case has been presented to the court: for example if the defence has never sought to deny that the full offence charged had been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.
	We can also envisage cases where the principal offence is so grave and the alternative so trifling, that the judge thinks it best not to distract the jury by forcing them to consider something which is remote from the real point of the case: and this may be so particularly where there are already a series of realistic alternatives which call for careful handling by judge and jury, and where the possibility of convicting for a trivial offence would be an unnecessary further complication.
	On the other hand the interests of justice will sometimes demand that the lesser alternatives are left to the jury. It must be remembered that justice serves the interests of the public as well as those of the defendant, and if the evidence is such that he ought at least to be convicted of the lesser offence, it would be wrong for him to be acquitted altogether merely because the jury cannot be sure that he was guilty of the greater.” [Emphasis added]

Conclusion on D10’s application

110.  We are satisfied that in this case, D10 having admitted participation in assaulting the deceased in a lengthy attack which the jury was clearly satisfied was a significant cause of death, the issue then to be decided by the jury lay between murder and manslaughter.

111.  Accordingly, these grounds of appeal fail and D10’s application is dismissed.

D2’s trial

112.  Three grounds of appeal were advanced on D2’s behalf by Mr Delaney.  Before dealing with these, we propose to set out the case against D2 who was convicted by a jury of murder on 2 May 2007, also following a trial before Pang J.  We do not, in this context, need to refer to the pathologist’s evidence again.  Dr Lai more or less repeated his earlier evidence based upon his post mortem report.

113.  The principal evidence against D2 was contained in his three interviews, two on 12 March 2004 and one on 13 March 2004.

114.  In his 1^st interview, D2 stated that on 1 March 2004, D1 had brought the deceased to his flat where D1 proceeded to beat the deceased 10 to 20 times with a water pipe he had brought with him.  D2’s girlfriend, Chan Hoi-ying, was there at the time.  On the following day, 2 March 2004, D2 said that D1 again brought the deceased to the flat.  On this occasion, besides Chan Hoi-ying, ‘Ah Nam’ (D9) and ‘Ah Lok’ (D10) were also there.  This time, the deceased was beaten with a bar metal pipe, a (broken) mop stick, a folding stool and a nylon belt / strap.  The folding stool broke during the beating.  D2 admitted that he had used all four items with which to beat the deceased.  D1, D9 and D10 had all participated using the folding stool and the metal pipe.  After these events, the deceased was taken to the premises of ‘Ah Wo’ (D6) at Man On Street, Tai Kok Tsui.

115.  The admissions as to how the deceased was beaten on 2 March 2004 were repeated in D2’s 2^nd interview.

116.  In his final interview, D2 repeated his earlier admissions to the assaults on 2 March 2004 adding that the deceased was hit on the back, legs, arms and hands with the implements he had described, commenting also that the deceased was beaten “several tens of times”.

D2’s grounds of appeal

117.  Two grounds of appeal were advanced by Mr Delaney on D2’s behalf.  These were set against a background of D2’s plea of guilty to manslaughter when his trial began on 16 April 2007.  The sole issue of importance to be decided by the jury related, therefore, to intent.  If the jury was satisfied that D2’s intention to cause grievous bodily harm to the deceased was made out, as the prosecution alleged, only then could there be a conviction for murder.

(1) Written ‘handout’ entitled: “How to determine a person’s intention”

118.  In the 1^st ground of appeal, it was submitted that the judge gave a handout to the jury which undermined any direction they had been given that it was for them to form their own view of the facts.  It was described as having, effectively, amounted to a direction to convict.

119.  The document, which was handed to the jury in the course of the summing up, reads as follows:

“	How to determine a person’s intention
	When you consider whether the defendant intended to cause grievous bodily harm, you do not just accept his word that he has no such intention. You have to look at all the circumstances of the case, what that defendant said, what he did before and at the time of the attack.
	Let me give you an example, if a person pushes you lightly on your chest twice, I think you can say without any difficulty that he did not intend to do you serious bodily harm. If he gives you two light punches on your chest and kick you once at your back, but not very forcefully, you may still think he may not intend serious bodily injury. But if he punches and kicks you with considerable force, you may think that he intends to cause you serious bodily injury even though you may still give him the benefit of doubt.
	But if the man beats you continuously with a wooden stick or a water pipe over a period of time, then you will have very little difficulty in concluding that he intends to cause you very serious bodily injury.
	Please also bear in mind what I told you about drawing of inferences earlier in my summing-up.” (Appeal bundle p. 2622)

120.  The use of this handout, together with others, had been the subject of discussion on 26 April 2007 when the judge had quite properly canvassed the contents of the handouts with counsel prior to closing speeches.  The judge indicated (page 2728) that he would hear submissions later about the form the handouts should take.  When the judge returned to this topic on 30 April 2007, Mr Delaney raised objection to the handout relating to intention.  There then followed a brief dialogue in these terms:

“	Court : Do you want that out?  Fine.
	Mr Delaney : Please.
	Court : Fair enough.
	Mr Delaney : Yes.
	Court : Fair enough.
	Mr Delaney : Or I would ask you to reconsider its wording.
	Court : All right.  Sure.  Yes.”  (Appeal bundle pp. 2735-2736)

121.  It is perhaps because the judge seemed to have agreed not to utilise the handout explaining how to determine a person’s intention that, when the topic of other handouts was resumed immediately before the summing up, neither counsel nor the judge referred to it again.  It came, therefore, as something of a surprise to Mr Delaney to hear the judge refer to it in the summing up, passing at the same time copies of the handout, in precisely the same terms which the judge had said he would reconsider, to the jury.

122.  Mr Delaney (page 2612) addressed the judge about this during a break in the summing up.  The judge said that he had decided to retain the written handout and added: “I forgot to tell you.  Sorry”.  Mr Delaney said that he had been taken “a little bit by surprise”.  The judge sympathised, agreeing that he should have informed him.

123.  We have not previously seen a direction of a similar kind to this being handed to a jury in writing.  The other handouts were helpfully designed to deal with various aspect of the law.  These were, respectively, (1) murder, (2) common intention, (3) manslaughter and (4) joint enterprise. By contrast, the 5^th handout, the subject of this ground of appeal, was purely concerned with the approach to be adopted by the jury on an evidential issue.

124.  Whilst we have no doubt that the judge was attempting to give the jury as much assistance as he could, we do not consider that we should lend any encouragement to what effectively would amount to a new practice of providing formal directions on how the jury should set about deciding issues concerned entirely with evidence heard at trial.  Here, the judge had stated in writing that if “two light punches” on the chest and a kick in the back which was not very forceful were given, the jury “may still think” that serious bodily injury was not intended.  He had continued by stating that if punches and kicks were “with considerable force, you may think that he intends to cause you serious bodily injury even though you may still give him the benefit of the doubt”.

125.  By contrast, when the judge set out the next example, which closely mirrored the allegation in this case, he referred to a man who “beats you continuously with a wooden stick or a water pipe over a period of time”, and used the expression: “then you will have very little difficulty in concluding that he intends to cause you very serious bodily injury”.  Such a direction, in our opinion, made it difficult for the jury to have avoided the conclusion that a verdict of murder, rather than manslaughter which D2 had admitted, was the only realistic verdict open to them.  It was not a direction to convict of murder but it came so close to it that we consider that it amounted to a material irregularity.

126.  However, the matter did not end there as the judge, by the stage when the jury were given the handouts, had yet to deal with the defence case.  Favourable directions on the issue of intention might possibly have been capable of retrieving the situation.  The judge’s handling of the defence was, however, the subject of the 2^nd ground of appeal.

(2) Summing up of the defence case

127.  D2 gave evidence at his trial.  His admission to manslaughter left the core of his defence concerned with his denial of the intent required for murder.  In this regard, it was submitted by Mr Delaney that the judge “failed to give a fair and balanced summing up and did not put the case for [D2] fully or adequately”.

128.  No complaint was made of the standard directions given to the jury in the summing up regarding matters of law except the approach to ‘good character’ which we will come to shortly.  The criticisms were mainly directed at the way the defence was summed up by (1) a mere recitation of parts of D2’s evidence, coupled with D2’s answers in his interviews; (2) a selective reading of the pathologist’s report (without reference to the absence of injuries to any internal organs or any significant injury to the head and without referring to the fact that none of the individual injuries appeared to be life-threatening); and (3) a complete omission to remind the jury about assaults covered by the Admitted Facts which must have led to injuries and which were carried out on four separate occasions by either D1, D3 or D6 in D2’s absence.

129.  We do not need to go into the details of the way in which the defence case was summarised.  Certainly, it gave little comfort to the defence and it is apparent to us that nothing was said to redress the balance after the written handout directing the jury about “how to determine a person’s intention” had been given to them.  Whilst, therefore, this ground was not a sufficient basis in itself to succeed, it lent some support to the 1^st ground.

(3) Direction on ‘good character’

130.  The 3^rd and final ground of appeal in D2’s case amounted to a criticism of the direction the jury was given about their approach to D2’s previous good character.  No complaint was made of the way the judge led up to this topic which was in these terms:

“	You have heard that the defendant is a person of good character. That is, he has no criminal record. That means he has not been convicted of any criminal offence. Of course, good character, that is, no criminal record, cannot by itself provide a defence to a criminal charge, but it is evidence which you should take into account in his favour in the following ways.
	Firstly, the defendant has given evidence in this trial and has been interviewed by the police. As with any person of good character, his good character supports his credibility. This means it is a factor which you should consider and take into account when deciding whether you believe the defendant’s evidence.” (Appeal bundle pp. 2183-2184)

131.  The judge then continued by reminding the jury that D2 had given “answers and explanations” to the police.  These replies, of course, had formed a substantial part of the prosecution’s case against D2.  In the course of his evidence, D2 had testified that a number of his replies to the police were untrue so that it was implicitly being said that no reliance should be placed upon them.  Unfortunately, however, the judge continued his directions on good character as follows:

“

… In considering those answers and explanations he gave to the police and what weight you should give it, you should bear in mind that it was made by a person of good character and you should take it into account and consider that when deciding whether you can accept the contents of the cautioned interview.

The defendant in this case told us specifically what he told the police in those interviews are a packet of lies which he made up because he was confused. However, when he gave evidence in this court, he told us he was telling the truth. His good character works in his favour. The fact that he is a person of good character may mean that he is less likely than otherwise might be the case to commit the offence for which he is being charged now.” (Appeal bundle p. 2184)

132.  Mr Delaney’s complaint about this passage, taken as a whole, is that the effect of the judge’s directions was that the answers D2 gave to the police carried more weight because of his good character.

133.  Undoubtedly, with respect, this direction was far from satisfactory.  Directions about the good character of a defendant are intended to favour the defendant.  Here, however, there was a danger that the directions, albeit later followed by a ‘lies’ direction in standard form, worked to the disadvantage of D2 who was seeking to distance himself from some of the answers he had given to the police.  He was obviously not assisted by the judge telling the jury that his good character was a factor to be taken into account when considering the weight to be given to his replies to the police.

134.  Again, we do not consider that, by itself, the error was sufficiently grave to upset the conviction for murder but, in a case where there was a very strong evidence of murder against D2, it was another unsatisfactory element in the way his case was handled in the final and crucial stages of the trial.

Conclusion on D2’s application

135.  Accordingly, D2’s application for leave is granted.  Treating the hearing as the appeal we shall allow his appeal.  The conviction and sentence for murder are quashed.  Mr Delaney indicated, very properly, that he would not resist an application for D2’s retrial in the event that the appeal succeeded.  We shall, therefore, order a retrial in his case on a fresh indictment with D1.  In the meantime, D2 will remain in custody.