HKSAR v. NG SIK KEI AND ANOTHER

CACC 233/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 233 OF 2012

(ON APPEAL FROM HCCC 399 OF 2010)

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J U D G M E N T

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Hon McWalters JA (giving the judgment of the court):

Introduction

1.  The applicants were tried before Beeson J and a jury in the High Court on an indictment charging them with murder, contrary to common law and punishable under section 2 of the Offences Against the Person Ordinance, Cap 212 and acting as members of a triad society contrary to section 20(2) of the Societies Ordinance, Cap 151.  The murder count alleged that on 22 September 1999, they, together with Lo Hon Hing, Li Cho Ming, Leung Chi Hung and other persons, murdered Ho Wai Ha.

2.  Their trial took place between 7 and 30 May 2012 on which latter date they were convicted by the verdict of the jury.  They were both sentenced to life imprisonment for murder and to terms of 5 years and 3 years’ imprisonment, respectively, for the offence of acting as members of a triad society.  These latter sentences were ordered to be served concurrently with the sentences of life imprisonment.

3.  Both applicants applied for leave to appeal their convictions and the first applicant also applied for leave to appeal his sentence.

4.  At the hearings of the applications we reserved our judgment which we said we would hand down at a later date.  This we now do.

The background to the offence

5.  The victim of the murder count was Madam Ho Wai Ha who operated a newspaper stall at the doorway of the Ying Bun Restaurant, Ground Floor, No 168-78, Tai Po Road, Sham Shui Po.  On 22 September 1999 at around 5:20 in the morning Madam Ho was chopped to death by three masked men in a vicious, pre‑meditated attack.  Police attended the scene shortly before 5:30 am and found Madam Ho unconscious in a pool of blood with blood flowing from knife wounds to her body.  Ambulance officers arrived at 5:40 am and Madam Ho was taken to the Accident and Emergency Department of the Caritas Medical Centre where she was found to have died prior to her arrival at 5:48 am.  Attempts were made to resuscitate her but these were unsuccessful and she was certified dead at 6:36 am.

6.  Madam Ho had been selling newspapers at her stall for about 30 years.  She was at her stall by 5 am on the day that she was attacked.  Unbeknownst to her, whilst setting up her stall she was being observed by one group of men in a car that was circling the area and by another group in a car parked nearby.

7.  It was three men from the car circling the area who attacked Madam Ho.  They were each armed with 18 inch beef knives.  One of these three chopped Madam Ho.  He did so quickly and with a great deal of force. Madam Ho suffered three serious wounds; one on the right back shoulder, another on the outer aspect of the upper left arm and the third to the back of the left knee.  The third blow severed the artery and caused substantial bleeding.

8.  For many years the police investigation was unproductive and the police were unable to bring the perpetrators of this terrible crime to justice.  Finally, in 2007, the three men involved in the actual chopping and one other were prosecuted for Madam Ho’s murder.  These were Li Cho Ming (PW3), Leung Chi Hung (PW4), Lo Hon Hing (PW5) and Lam Tse Lik (DW2).  On 25 March 2007, all but Lam were convicted of murder and sentenced to life imprisonment. Lam was convicted of manslaughter and sentenced to 12 years’ imprisonment.

9.  After their convictions the three convicted of murder cooperated with the police and agreed to testify against the applicants at their trial.  It was they who were able to explain why an elderly, female newspaper vendor was the target of such an horrific, planned, gang attack. 

10.  The first applicant was a shareholder in a company, Ching Wui, which had taken over the distribution of newspapers in the Sham Shui Po area.[1] The 2^nd applicant, also known as Michael, was the principal of the company.  The company decided to force the newspaper vendors to buy from it extra copies of its papers which they were to sell but which, if not sold, they were unable to return.  This scheme was one from which the company could not lose but was not a financially viable scheme for the vendors from whom, effectively, money was being extorted by the company.

11.  Not surprisingly the newspaper vendors were opposed to this scheme and participated in a number of meetings with the company.

12.  There was a meeting on 12 September 1999 but no resolution to the problem and some of the vendors talked about boycotting the distributor.  Madam Ho participated in these meetings as she was the treasurer for the Vendors Association.  The 2^nd applicant attended this meeting as the representative of Ching Wui and the attitude he adopted at it was described as “fierce”. 

13.  There was a joint meeting on 19 September 1999 which the 2^nd applicant also attended.  By this time he was aware of the talk of a boycott and the meeting was very tense.  The 2^nd applicant spoke loudly, slapped the table and was very fierce.  A further meeting was arranged for 22 September 1999.  In between these two joint meetings, on 21 September 1999, Madam Ho and her husband attended a dinner meeting with other newspaper vendors.  The joint meeting between the vendors and the company was due to take place the following afternoon, but by that time Madam Ho was dead.

14.  The motive for the attack, as alleged by the prosecution, was described by the judge as follows:

“It is the prosecution case that Madam Ho was the victim of a brutal triad killing designed to punish her for acting as representative of a group of vendors who were objecting to a scheme for selling newspapers, a scheme which amounted to little more than a protection racket. The attack on her was also to serve as a warning to others who might have similar objections.”

15.  It was the evidence of the accomplice witnesses that the applicants were “big brothers” in the 14K triad society and they had called for help from their followers.  The instructions were given by the 2^nd applicant in the presence of the 1^st applicant and the instructions were to chop Madam Ho.  Although present when these instructions were given, the 1^st applicant remained silent and said or did nothing to countermand these instructions.  These instructions were given at the rear door of the Tai Hang Li Mahjong parlour which was owned by the 1^st applicant.  This was sometime after 10 pm on the evening of 21 September after which those present went to a cafe to eat.

16.  Those involved in the attack upon Madam Ho were not specifically instructed to kill her.  They were told to chop her on the back, buttocks and legs so that she would be unable to sit or work. They were told that they could chop her “hard” but must not leave any clues at the scene.  Transport, equipment, weapons and money were supplied.

17.  The liability of the two applicants, as put by the prosecution, was set out by the judge as follows:

“The prosecution case is this was a joint enterprise arranged and ordered by D1 and D2 in their alleged roles as 14K big brothers. Although they did not do the chopping and they did not do any of the physical work, they were the guiding lights in the plans. The prosecution says the evidence of the immunity witnesses establishes their guilt of this murder.”

18.  Thus the prosecution portrayed the applicants as the organizers of the chopping in their roles as 14K big brothers, with the 1^st applicant being the person for whose benefit it was being done as he was the owner of the newspaper distribution company.  The applicants were neither physically involved with the chopping or even present at the scene observing it taking place.  They kept themselves distant from the attack and left it to their henchmen to carry out their instructions.

19.  In order to prove that the two applicants counseled and procured this murder the prosecution relied on evidence that the 1^st applicant had told Li Cho Ming to do it cleanly and the 2^nd applicant, in the presence of the 1^st applicant, had given the instruction “Chop the nosy bitch”.  Furthermore, the 1^st applicant gave money to Li Cho Ming and gave instructions that after the attack the men were to lie low on the Mainland. 

The evidence of the accomplice witnesses

20.  The first of the accomplice witnesses was Li Cho Ming.  He asked to be believed notwithstanding that he was a convicted murderer who had lied to the police, lied on oath at his trial and at his trial had made false allegations about the police in order to try and exclude his video record of interview from being admitted into evidence.  

21.  Once he decided to become a prosecution witness he gave three statements to the police but admitted that he had not told the whole truth in those statements either.  That was because he was still in two minds about giving evidence and because he believed that there was still danger to his family.

22.  He claimed to be remorseful about what he had done and that his remorse developed alongside his conversion to Christianity.  He said he knew that he should be punished for what he did but he hoped that ultimately he would receive a determinate sentence.

23.  He testified as to his triad links and said he belonged to the 14K Tak group, whereas the 1^st applicant was in the Ngai group of the 14K, and was a follower of Wu So Yung.  He was in frequent contact with the 1^st applicant and would go three or four times to the mahjong parlour.  The 2^nd applicant was also in the Ngai group and he saw him often.  He treated the 1^st applicant’s wife as his sworn mother.  The 1^st applicant owned Chung Wui and the 2^nd applicant was in charge of it.   

24.  He said that on 21 September when he was in Shenzhen he was contacted by a person called Lin Chung Wai but also known as Ah Wai and Sze Ngan Wai and told to return to Hong Kong.  He asked why and was told simply to come back.  At that point the 1^st applicant took over the phone from Lin Chung Wai and asked Li Cho Ming to come back.  Li Cho Ming said of this request from the 1^st applicant:

“I came by right of the Big Brother; in the 14K, he had authority over me. He belonged to another group, the Ngai Group.”

25.  They met outside the rear door of the 1^st applicant’s mahjong parlour and the two applicants were present.  He asked what work was to be done and the 2^nd applicant said:

“You guys are to help me chop the nosy bitch.”

26.  The 2^nd applicant then went on to explain the newspaper dispute.  The 2^nd applicant complained of Madam Ho standing up to him and he said of her:

“Execute one to warn a thousand.”

27.  All this conversation took place within the hearing of the 1^st applicant.

28.  Roles were then assigned for those who would participate in the attack on Madam Ho and the 2^nd applicant made a phone call to arrange a car to collect the equipment that would be used in the attack.  Li Cho Ming described the 2^nd applicant’s role as calling troops together and giving them instructions and explaining in some detail what they were to do.

29.  They then went to a café to eat.  At the end of the meal Li Cho Ming said he approached the 1^st applicant’s table and the 1^st applicant said to him:

“When you’ve done the work it doesn’t matter if its done in a tough way as long as its done – as long as its done nicely.”

30.  By these words, Li Cho Ming understood the 1^st applicant to mean that the attack should be carried out cleanly so that no clues were left behind that would link them to the attack.  Their faces should be masked and no fingerprints were to be left.  In fact they used spray bandages to prevent leaving fingerprints and placed false number plates on the car in which they travelled.

31.  In return for his assistance the 1^st applicant promised Li Cho Ming that he would be given an area over which he would take charge and from which he could collect money.  The 1^st applicant also gave him $10,000 and promised him more after the attack had been carried out. 

32.  The next day, after the attack, the 1^st applicant met Li Cho Ming and told him that Madam Ho had died.  He gave him another $20,000 and told Li Cho Ming to lie low in Shenzhen.  Li Cho Ming portrayed this as the 1^st applicant fulfilling the triad code of the Big Brother by looking after the followers who were in trouble.  After a few weeks the 1^st applicant arranged to meet Li Cho Ming, Leung Chi Hung and Lam Tse Lik in Shenzhen and gave them a further $20,000 to rent a flat.

33.  The second accomplice witness to give evidence was Leung Chi Hung who was also known by the nickname of Cheung Mo.  This was the man who actually did the chopping.  He said he was instructed to chop the back, buttocks and calves of Madam Ho because those three parts would not be fatal.  But he knew the victim was to be taught a lesson and, although he had no intention to kill the deceased, he said he lost control and he killed her by mistake.

34.  He claimed that he had changed as a person and now followed the precepts of Buddhism.  He returned to Hong Kong in 2006 and surrendered to the police.  He had been prepared to plead guilty to manslaughter but this was rejected by the prosecution and so he lied at his trial in an effort to have his statement to the police excluded from evidence. He hoped for a determinate sentence. 

35.  Originally Leung Chi Hung made no mention of the 1^st applicant in connection with this incident and denied that he had been given money by him.  But later he said he had been given money by the 1^st applicant but denied seeing or knowing the 2nd applicant.  He knew the 1^st applicant was in a triad society and said that he “followed” him.  The only reference he made to the 1^st applicant on the 21^st is that he knew the Tai Hang Li mahjong parlour belonged to him and he saw him and Li Cho Ming at the cafe.  He knew Li Cho Ming was a triad member.  He said his instructions that night came from Lin Chung Wai. He claimed not to be able to remember much of what happened at the mahjong parlour and placed emphasis on what happened at the cafe.

36.  The next day he was present when the 1^st applicant gave money to Li Cho Ming so that they could go to China.  He said he saw the 1^st applicant in Shenzhen a few days later when more money was given to Li Cho Ming to rent a flat there.  At a later meeting there was talk of being resettled in Malaysia.  He described the 1^st applicant as the Big Brother and portrayed his assistance as performing the role of helping those he commanded.

37.  The final accomplice witness for the prosecution was Lo Hon Hing, also known as Hing Chai.  He admitted that in 1999 he was a member of the 14K triad society.  He said he was introduced to the 1^st applicant by his Big Brother who had also introduced him to the 2^nd applicant whom he believed to be the 1^st applicant’s follower.  He would see the two applicants together at the 1^st applicant’s mahjong parlour.

38.  Lo Hon Hing said that on 21 September he was called by the 2^nd applicant who asked him to go to the mahjong parlour after 10 pm.  He did so and at the doorway of the parlour he saw the two applicants.  They went up to the cashier’s office and after entering the office the door of it was closed shut.  He said the 2^nd applicant told him about a woman who was to be chopped because there was a newspaper problem and he was asked to chop the vendor.  He said he suggested just beating her as she was a woman but the 2^nd applicant seemed dissatisfied with this suggestion.  During this conversation the 1^st applicant was present but did not react to what was being said.  The 2^nd applicant told Lo Hon Hing to go downstairs and get Lin Chung Wai.  He did so and remained downstairs.  Later Lin Chung Wai came down and told him to get the equipment.  Lo Hon Hing went to the New Terrorities to collect the knives, false number plates and masks.  As the 2^nd applicant was more senior in rank than him he felt he had to do as instructed.  He also said that the 2^nd applicant had the authority to send him to fetch the knives.

39.  He said that after they got the equipment they went to a café.  The two applicants were present.  He said he saw the 2^nd applicant throw car keys to Lin Chung Wai and he saw the 1^st applicant give this same person $10,000.  They were told they could chop the victim after 5 am.

40.  The day after the chopping had taken place he said he was telephoned by the 1^st applicant and asked to go to the mahjong parlour.  This call took place sometime after 4 pm.  He saw the 1^st applicant at the back door and he was told the victim had died.  He was asked by the 1^st applicant if he needed to flee as he had already arranged for Li Cho Ming, Leung Chi Hung and Lam Tse Lik to go to China.  Lo Hon Hing said there was no need and he would fix it himself.

41.  He admitted that at an identification parade he recognized the 2^nd applicant but pretended he could not identify the 1^st applicant.  He said he did this because he feared his family might be under threat if he identified him.  But at trial he said he knew arrangements had been made for his family and so he felt better and was able to identify the 1^st applicant in court.

42.  He admitted that he did not tell the truth in his statements or in his video recorded interview and that at his trial he made false allegations against the police.

The other prosecution evidence 

43.  The prosecution also called a solicitor, Paul Yau.  Mr Yau had been the solicitor of the 1^st applicant during the period of the three accomplices’ trial and appeal and for a period after the 1^st applicant’s arrest.  He spoke of being requested by the 1^st applicant to visit Lo Hon Hing on 23 July 2008 after Lo Hon Hing had been convicted of murder but before his appeal and of being asked by the 1^st applicant to help Lo Hon Hing with his appeal.  He visited Lo again on 24 November 2008, 14 January 2009, 13 February 2009, 8 April 2009 and 3 August 2009 and his fees for all of these visits were paid by the 1^st applicant.  Mr Yau said the 1^st applicant’s motive was to try and help his friend.  The 1^st applicant was arrested on 1 June 2010 and Mr Yau visited Lo Hon Hing again on 10 September 2010. 

44.  In cross-examination it was agreed by Mr Yau that after the meeting with Lo Hon Hing on 24 November 2008 he had a conference with the 1^st applicant in the presence of a barrister.  It was put to Mr Yau by counsel for the 1^st applicant that in this conference Mr Yau showed the 1^st applicant a document that he had received from Lo Hon Hing, written by Li Cho Ming, and that Lo said:

“Some of us who were involved in the matter are getting together to make statements for the police so that we can get our sentences shortened by giving evidence against other people.

We have to fit somebody up because the police aren’t happy with the people we’ve named, we have to name somebody else more important.”

45.  Mr Yau denied receiving this document, giving any such document to the 1^st applicant and relating these words to him that were allegedly spoken by Lo Hon Hing. 

46.  In respect of the 2^nd applicant the prosecution relied not only on the evidence of Li Cho Ming and Lo Hon Hing but also on the evidence of Mr Lau Kit Shun, the owner of the car which was borrowed by the 2^nd applicant in order to transport the assailants.  Mr Lau also testified that the 2^nd applicant requested him to accompany him to Macau at 3 am on 22 September.  This, the prosecution alleged, was in order to arrange an alibi for the 2^nd applicant and this in fact was what Mr Lau said the 2^nd applicant told him was the purpose of the trip to Macau.  The husband of the victim also gave evidence that the 2^nd applicant was a central figure in the newspaper dispute.

The defence case

47.  In the defence case the 1^st applicant gave evidence and called one witness, Lam Tse Lik.  However, in the course of the judge’s summing up the court received a letter from a prisoner serving a sentence for an unrelated offence.  The author of this letter became the third witness in the 1^st applicant’s case.  The 2^nd applicant did not give evidence or call any witnesses. 

48.  The 1^st applicant claimed he was a businessman and denied being a member of a triad society.  In 1999 he had known the 2^nd applicant for about 2-3 years but had no idea as to whether he was a triad or not.  In respect of the accomplice witnesses, he denied having any triad connection with them.

49.  In respect of Ching Wui he said the newspaper business was not profitable and the 2^nd applicant had to keep collecting money to pay bills.

50.  He denied telling people to gather on 21 September and denied being present at a meeting in the cashier’s room of his mahjong parlour on that evening.

51.  The 1^st applicant claimed that the accomplice witnesses were framing him and that there was no plan to chop Madam Ho.  He admitted that he had arranged a solicitor, Mr Paul Yau, to visit Lo Hon Hing when he was in prison but did not know that Lo was there on a murder charge.  He said in 2008 he received a call from Lo’s family and because he knew Mr Yau through the mahjong parlour he sent him to the prison to help Lo. 

52.  He referred to the occasion he was called back from overseas by Mr Yau.  He met with him and a barrister called Tang.  He said he was shown a three page document and was told that Lo Hon Hing had been asked by the author of the document, Li Cho Ming, to copy it.  In this document it was said that the boss of the Tai Hang Li Mahjong Parlour needed to be framed up so that they (the three immunity witnesses) could get money for their use.  The document was in Lo Hon Hing’s handwriting.  The 1^st applicant said this document gave details about what had happened on the night of the 21^st, for instance, citing the 1^st applicant’s presence at the rear alley when the 2^nd applicant gave instructions.  The 1^st applicant did not make any copy of this document or make any report of it.  However, he claimed that he instructed Mr Lau to report the three page document to the police and that Mr Lau had been negligent in not doing so. 

53.  He said that the 2^nd applicant had told him to prepare $2 million for the immunity witnesses and if he did that he would be okay.  He knew then that the blackmail was serious and so he reported it to the police by a letter dated 22 September 2010.  He made two statements to the police but in neither of them did he mention the three page document.

54.  The second witness for the 1^st applicant was Lam Tse Lik, the third knifeman who had been convicted of manslaughter and sentenced to 12 years’ imprisonment.  He was very vague in his evidence.  He said he had gone to the Tai Hang Li Mahjong Parlour but was hazy about who was there and what happened.  He said he knew nothing of the plan or what he was supposed to do.  He denied knowing the 1^st applicant and said he never saw him in China and never saw him giving money to anyone.  He also denied knowing the 2^nd applicant.

55.  The only evidence from the 2^nd applicant came from his record of interview.  In it he denied knowing the boss of a mahjong school and denied knowing Mr Yau.

56.  As previously mentioned, a final witness was called for the 1^st applicant after his case had been closed.  This was Mr Cheung Yuk Keung who is a triad member serving a sentence of 25 years’ imprisonment for drug offences.  He wrote to the court because he believed he could give relevant evidence in respect of Li Cho Ming and his evidence was in fact interposed in the course of the judge’s summing up.  He accused Li of being a hypocrite, not a genuine Christian and of being motivated solely by his desire to obtain a determinate sentence.  He also alleged that Li Cho Ming had said he would ask “a rich man” who was unnamed and unable to be identified by Mr Cheung for $2 million for each of the three immunity witnesses in order to settle their families.  He said Li Cho Ming did not say what would happen if the money was not paid.  The thrust of his evidence was that Li Cho Ming was not a truthful person and had lied in court. 

The grounds of appeal

57.  The 1^st applicant only raises one ground of appeal and that is that in light of the newly discovered evidence of Lui Fui, Ngan Lak Kwong, Liu Chun Yip, Nguyen Thanh Tung, Ng Pak Lun and the evidence of the applicant himself, the convictions of the 1^st applicant are unsafe and unsatisfactory.  In order to advance this ground the 1^st applicant filed Notices of Motion applying to adduce fresh evidence on appeal under section 83V(2) of the Criminal Procedure Ordinance, Cap 221.  These Notices of Motions were accompanied by affirmations from those whose evidence the 1^st applicant sought to place before the court.  Without ruling on whether we would receive this evidence we allowed the deponents to be called and heard their evidence, de bene esse, over the course of several days.  We said we would give our ruling on the application in the course of our judgment on the 1^st applicant’s application for leave to appeal.

58.  The 2^nd applicant, who was separately represented, does not rely on the 1^st applicant’s ground of appeal or any of his additional evidence.  He has his own perfected grounds of appeal all of which make complaints about the judge’s summing up.  His first complaint is in respect of the judge’s comments about the evidence of Leung Chi Hung which he says, in effect, would have undermined the credibility of that evidence and prejudiced the jury’s assessment of the weight they should attach to it.  Leung Chi Hung’s evidence was exculpatory of the 2^nd applicant.

59.  His second complaint is that the judge misdescribed the inculputory effect of the prosecution evidence in so far as it relates to the 2^nd applicant.    

60.  The 2^nd applicant’s third and fourth grounds of appeal were not pursued.

61.  The fifth ground of appeal complains that the judge failed to direct the jury on the third defence witnesses’ evidence that he was told by Li Cho Ming that he was going to frame up others.

62.  The sixth ground of appeal is that the judge erred in directing the jury to ignore what Lo Hon Hing had said about the arrest by the police of some of his family members.

63.  The final ground of appeal is simply that by reason of all the matters mentioned in the other grounds of appeal the convictions of the 2^nd applicant are unsafe and unsatisfactory.

The evidence adduced on appeal on behalf of the 1^st applicant

64.  The 1^st applicant in fact filed four notices of motion by which he applied to adduce fresh evidence on appeal.  Their filing dates and the evidence they sought to adduce is set out in the table below.  Accompanying each notice of motion was an affirmation of the prospective witness except that the 4^th Notice of Motion was only accompanied by affirmations from Ng Pak Lun and the applicant.

Notices of Motion	Date	Witnesses
1st Notice of Motion	18 June 2013	Mak Wing Cheung
		Pang Tsz Kin
		Lui Fui
		Ngan Lak Kwong
		The 1st applicant
2nd Notice of Motion	8 March 2014	Liu Chun Yip
		Wong Hing Piu
		The 1st applicant
3rd Notice of Motion	10 September 2014	Nguyen Thanh Tung
4th Notice of Motion	7 October 2014	Ngan Lak Kwong
		Lui Fui
		Liu Chun Yip
		Nguyen Thanh Tung
		Ng Pak Lun

65.  However, the 1^st applicant only called, in addition to himself, Ngan Lak Kwong, Ng Pak Lun, Nguyen Thanh Tung and Liu Chun Yip.  The common theme of the affirmations and of the oral evidence was that the new witnesses had come to know the accomplices in prison and that the accomplices had admitted they were going to frame the 1^st applicant.

66.  The first witness was Ngan Lak Kwong who is currently serving a term of life imprisonment for a murder unrelated to the present case.  He is married with a child and claimed to have no triad affiliations.  He had been in Shek Pik Prison since September 2010.  He said he became acquainted with Li Cho Ming when they were both in Stanley Prison around 8 or 9 January 2010.  They spoke of each others’ cases and he claimed that Li Cho Ming told him that he had been promised by a person called Michael that he would be given $2 million.  Michael did not fulfill his promise and so Li Cho Ming said he was going to testify against Michael so that he could either get money or a sentence reduction.  He said that if Michael did not have money he would pull his boss down into the water and extort money from him.  This boss was the boss of Ching Wui.  Ngan said that Li Cho Ming admitted to him that this boss was not involved in the murder.

67.  Notwithstanding that Li Cho Ming had said he was going to falsely frame an innocent person Ngan did not report this conversation to anyone but he changed his mind when he came to talk to the 1^st applicant.

68.  Ngan said Li Cho Ming was transferred out after being beaten by a Vietnamese inmate and thereafter Ngan did not see him again.  Ngan was later transferred to another prisoner group on 30 August 2010.

69.  Whilst in this new prisoner group he met Lo Hon Hing.  They also discussed their cases.  Ngan said he had a conversation with Lo Hon Hing in August or September 2010 in which Lo Hon Hing said that he had been asked by Li Cho Ming to join him in pointing the finger at Michael and extorting money from his boss.  He guessed that Lo’s conversation with Li took place about 6 months beforehand.  Lo Hon Hing told Ngan that he would testify against Michael but he refused to falsely implicate the boss.  Lo said that later the police asked him to testify against the boss, whom he then knew to be the 1^st applicant, but he refused as the crime had nothing to do with this person.

70.  Ngan was shortly after transferred to Shek Pik Prison where he met the 1^st applicant.  They talked about their cases and Ngan came to realize he was the boss.  He told him about Li Cho Ming’s plan and of his conversation with Lo Hon Hing.  Ngan agreed to help the 1^st applicant since he believed he was being wronged by others.

71.  The second witness was Ng Pak Lun. He is also serving a life sentence for a triad gang murder.  He claimed to know Li Cho Ming from the time they were in the same prison group at Stanley Prison between 2010 and 2011.  He said that in a conversation with Li Cho Ming in the middle of 2011, Li told him that he would become a witness to point his finger against someone called Michael because Michael would not give him money.  He also mentioned it was possible to get his sentence reduced.  This conversation took place about 6 months after Li Cho Ming arrived at Stanley Prison.  Li also said that if Michael had no money he would point his finger at his boss as the boss had money to pay.  He did not identify the boss.  That was all that was said and he and Li Cho Ming never discussed this matter again.

72.  Ng also got to know Lo Hon Hing at Stanley Prison and in conversations with him they would discuss their respective cases.  He came to realize that Lo and Li were in the same case and so he asked Lo if he stayed in touch with Li.  Lo replied that he did not and it was because Li wanted Lo to join him in pointing the finger at someone and even to frame up somebody who had nothing to do with the case.

73.  In another conversation that Ng had with Lo, Lo told him that his family members had been arrested for money laundering and that the police wanted him to be a witness that would result in an innocent person being framed.  He said if he did not cooperate then his family members would be charged with money laundering.  This conversation took place around September 2011.

74.  On 22 November 2011 Ng was transferred to Lai Chi Kok to await his retrial for murder.  He remained there until after his retrial was over, leaving Lai Chi Kok in August 2012.  He did not see Lo Hon Hing again but they corresponded with each other.  He produced a letter he said had been written to him by Lo that bore a CSD stamp date of 27 May 2013. In the last paragraph of that letter he said he understood Lo to be exhorting him not to tell others about the things the police forced him to do. 

75.  Ng said he told the 1^st applicant about these things after he met him at Lai Chi Kok but not whilst they were together there.  He agreed that he knew the 1^st applicant was being tried for murder and that he saw him going to court every day.  Yet even though he knew Li Cho Ming and Lo Hon Hing were going to frame the 1^st applicant for a crime he did not commit, at no stage did he reveal what he knew of this plan to the 1^st applicant.  He said it did not occur to him to do so.  When he heard of the 1^st applicant’s conviction he said he was a bit upset because he had not told him of what he knew and so when he encountered the 1^st applicant later at Shek Pik he related to him what he knew about Li Cho Ming’s and Lo Hon Hing’s plan to frame him up.  This would have been in the middle of 2013. 

76.  Between this time and 2014 the 1^st applicant did nothing about this information.  The next time they spoke was after April 2014.  On this occasion Ng agreed, at the 1^st applicant’s request to become his witness.  He said the 1^st applicant told him he would arrange for his lawyer to come and see him.  He gave the original of the letter he had received from Lo Hon Hing to this lawyer.

77.  The third witness was Nguyen Thanh Tung, also a convicted murderer serving a term of life imprisonment.  He had been convicted in 1995.  He said he first met Li Cho Ming in 2009 when they were in the same prisoner group at Stanley Prison.  They were together for over a year and, initially, were friends.  They would talk a lot and Li Cho Ming told him he was looking for police officers to tell about things he knew in order to get a reduction in sentence.  He said a person called Michael instructed them to do the work and Michael had a boss who had nothing to do with the matter.  But he would point the finger at him and frame him up in order to get a reduction of sentence.  This was all said in the course of one conversation.

78.  Nguyen claimed that later he and Li Cho Ming fell out when Li joined with other triad prisoners in order to bully within the prison.  Li forced Nguyen to give him 6 packs of cigarettes per month and do work for him such as serving clothes to him.  Nguyen sought help from a CSD officer and requested to be transferred out of his working group.  The CSD officer told him that this could not be done unless they fought one another.  So, in August 2010, Nguyen hit Li Cho Ming with a stick on his head and face.  Nguyen was subsequently charged with assaulting Li Cho Ming and he pleaded guilty to this charge. 

79.  As a result Nguyen was put in solitary confinement and Li Cho Ming was transferred out of this section. Whilst in solitary Nguyen met the 1^st applicant who was in an adjoining cell.  He had come from Shek Pik in order to see a doctor.  They talked and he realized the 1^st applicant was the person Li Cho Ming said he would frame and so Nguyen told him what Li had earlier said to him about framing someone.

80.  Nguyen had a history of violence within prison.  In 1997 he wounded a prisoner and was sentenced to 6 months’ imprisonment and in 1999 he wounded another prisoner with a weapon.  In May 2000 he wounded yet another prisoner with a weapon and in June 2002 he tried to kill a prisoner by stabbing him in the face with a metal rod.  On this occasion he had no personal dispute with the victim but he agreed to assault him on behalf of some triads to whom he, Nguyen, owed some cigarettes.  In 2005 he hit a prisoner and was charged with assault. 

81.  Then, in August 2010, came the assault on Li Cho Ming.  Nguyen agreed that Li Cho Ming told him that he, Li, had identified the boss at an ID parade on 1 June and had made a statement on 4 June.  However, he disagreed he had been recruited to assault Li Cho Ming in order to frighten him off.

82.  Finally in 10 March 2014 Nguyen was convicted of wounding another person with a ping pong bat.

83.  Nguyen has a history of a total of 6 incidents of violence towards others in addition to the assault on Li Cho Ming.

84.  The fourth witness was Liu Chun Yip.  In 2005 he was convicted of murder and in 2008 that conviction was quashed and was replaced with a conviction for manslaughter, but he was still serving a sentence of life imprisonment. Whilst in Shek Pik he came to know Leung Chi Hung.  Leung spoke to him about his case and told him that two of his accomplices had become immunized witnesses, but that he would not do that. Then Liu became aware that Leung was also to be a witness.  He only learnt this the night before Leung was to be transferred to Siu Lam.  He saw Leung in the bathroom the next morning before he left for Siu Lam and asked him how he would stay his hand.  Leung replied that he had now extorted $20 million from the boss and would only stop after that.

85.  Between 18 and 24 September 2013 Liu was taken to Stanley for follow up treatment with a psychiatrist.  A typhoon delayed his return to Shek Pik.  Whilst at Stanley he met the 1^st applicant and told him what Leung Chi Hung had said to him in the bathroom on the morning of his transfer to Siu Lam.  He told the 1^st applicant that Leung Chi Hung had said he would extort the boss for $20 million.  Liu said he did not know who the boss was or how Leung would extort the money.  He was not able to explain how Leung could do this when, by the time he spoke to Liu, he had already given evidence and in that evidence had not implicated the 1^st applicant.   

86.  Finally the 1^st applicant gave evidence.  He said that he went to Shek Pik on 1 June 2012 and whilst there he came to know Ngan who told him that he knew the 1^st applicant had been wronged.  He said that whilst he, Ngan, was at Stanley he was in the same prisoner group as Li Cho Ming. Li had told him that he would point his finger at Michael and his boss to extort money.  He last spoke to Ngan about his case in the last 2 months of 2012 and January 2013.  In January 2013 the 1^st applicant told Ngan that he would arrange his lawyer to visit Ngan.

87.  In respect of Liu Chun Yip, the 1^st applicant told the same story as recounted by Liu of how they were both in Stanley at the time of the Mid-Autumn Festival in September 2013.  Because of a typhoon number 8 signal they were forced to spend several days together and started talking to each other in the TV room.  Liu told him that he knew who he was and that Leung Chi Hung was trying to extort money from Liu and get a sentence reduction.  The 1^st applicant said that he subsequently arranged for his lawyer to contact Liu.

88.  The 1^st applicant said he first met Nguyen Thanh Tung on 13 May 2014 when he was taken to Stanley Prison to visit a doctor. They were neighbours at Stanley and so they talked to each other.  Nguyen told the 1^st applicant that he knew the 1^st applicant had been wronged and that Li Cho Ming had framed him.  He agreed to help the 1^st applicant who then arranged for his lawyers to contact him.  Nguyen also told the 1^st applicant of his falling out with Li Cho Ming and of the subsequent fight with him.

89.  As to Ng Pak Lun the 1^st applicant said he first became aware of him in Lai Chi Kok at the end of 2011 or early 2012 when they were both inmates there.  However, at that time he did not discuss his case with him as they were only nodding acquaintances.  When the 1^st applicant was convicted he was sent to Shek Pik and there he again encountered Ng.  Around June-July 2013 Ng called the 1^st applicant’s name through the wire of a window, telling the 1^st applicant that he, Ng, was uncomfortable with the 1^st applicant’s conviction.  He told the 1^st applicant he knew he had been framed and he said he had a letter.

The evidence adduced on behalf of the respondent 

90.  The respondent also called evidence and the first witness was Li Cho Ming.  He explained how, at his trial, the judge had said to him that if he testified against others he might get a reduction in sentence.  This was on the date of his conviction on 26 March 2007.  On 4 August 2008 he gave his first statement in which he asserted that the 1^st applicant was present at the back of the mahjong parlour.  A month later his appeal was dismissed.  On 13-14 August 2009 he gave a further statement to the police in which he revealed more about the role of the 1^st applicant.  He explained the delay as being due to concern for the safety of his family members. 

91.  In June 2010 he identified the 1^st applicant at a police identification parade.  About 2 months later he was assaulted by the Vietnamese prisoner Nguyen Thanh Tung.  He denied having any particular relationship with him and of ever bullying him.  The assault was sudden and unexpected.  Because Li had had no dispute with him, he attributed the assault to the fact that he had become a witness. 

92.  Li denied having conversations with Nguyen about becoming a police witness in order to obtain a reduction in sentence or of extorting money from a man behind Michael.  He explained he would never reveal to another prisoner that he had become a police witness because it would be dangerous to do so.  Informants were hated in prison and would be beaten up and even killed.  He explained that he was moved to Siu Lam on 19 January 2012 for his own protection.

93.  He also denied talking to Ngan Lak Kwong about giving evidence.  He denied any knowledge of a plan by himself and others to give false evidence against the 1^st applicant.  He denied ever contacting Lo Hon Hing about giving evidence or of passing 3 sheets of paper containing his, Li’s evidence, to him.  He denied knowing Liu Chun Yip but he did know Ng Pak Lun, through he denied ever talking to him about his case or of ever giving evidence.

94.  The second witness for the respondent was Lo Hon Hing.  He confirmed he received visits from Paul Yau.  On 18 October 2010 Lo made a witness statement to the police but in it he made no mention of the 1^st applicant and denied knowing a person called Ah Kwan.  He had mentioned this person in his original police video interview conducted after his arrest but now claimed that he lied in that interview.  He was approached to be a defence witness by the 1^st applicant’s solicitors at the end of 2011, but he refused.  Then, he decided to become a prosecution witness and wrote to the Department of Justice.  He knew his family had been arrested, but claimed he only came to know of it in May 2012.[2]

95.  He said he knew Ng Pak Lun but denied ever telling him that he was forced to give evidence because of his family.  He agreed he corresponded with him including the letter of 27 May 2013.  He explained the last paragraph in that letter as being a response to two things asked of him by Ng, namely whether the police had set him up and whether there were any problems with his family.  These queries made Lo think Ng was trying to get him to say something and slip up.  Because he felt something was wrong he wrote the last paragraph.

96.  Lo denied ever communicating with Li Cho Ming about what evidence to give against the 1^st applicant and denied ever receiving a 3‑page document from him or of giving such a document to Paul Yau.  He never had a conversation with others as to what evidence he should give. 

97.  The third witness for the respondent was Leung Chi Hung.  He gave his first witness statement to the police on 16 December 2009.  He denied talking to any other inmates about giving evidence and specifically denied talking about it with Liu Chun Yip or of telling him of a plan to extort $20 million from the boss.

98.  The fourth witness that the respondent called was Pang Tsz Kin, a person who had originally been proposed as a defence witness in the first Notice of Motion.  He was a convicted drug trafficker and a member of a triad society.  However, when it became clear to him that he would have to testify in support of an affirmation he provided to the 1^st applicant he realized there were discrepancies between that affirmation and his memory of events and that the affirmation was not correct.

99.  His refusal to testify in support of the assertions that he made in his affirmation because, in effect, those assertions were not true, causes the contents of his affirmation to have continuing relevance.  In his affirmation he had said that whilst in prison he had come to know Lo Hon Hing and that on one occasion when they were talking to each other Lo Hon Hing told him that he was under pressure to join Li Cho Ming and Leung Chi Hung in testifying against the 1^st applicant.  Lo said he had not thought of testifying against the 1^st applicant as the murder had nothing to do with him.

100.  He also related a conversation which he had with Lo Hon Hing in the presence of Mak Wing Cheung and Lui Fu in a toilet outside the clinic of Stanley Prison.  In Hing’s conversation he claimed that the police had arrested his family and the police had told him that if he did not give evidence against the 1^st applicant, they would “mess with” his wife.  Lo Hon Hing told Pang and the other prisoners that he had no choice but to do what the police wanted even though he knew the 1^st applicant had nothing to do with the offence. 

101.  He also said that if he “pointed against” the 1^st applicant he might be given a definite sentence by the court.  Pang said he understood Lo to be saying that he was going to lie and to make up evidence against the 1^st applicant.

102.  The fifth witness for the respondent was a prison officer who was stationed at Stanley Prison from August 2012 and who had been with the Correctional Services Department for 36 years.  He spoke of the difficulties that Category A inmates of different units would have in communicating with each other.  He said they would have no physical contact and their only means of communication was if they could covertly contact one another through passing things to each other via a third party.  But this happened only very rarely.  He also said that inmates of different units would not be held together in the same holding area at the hospital or medical centre; nor would they be allowed to associate in the fingerprint room whilst waiting to be taken to court.

103.  They sixth witness for the respondent was a prison officer who had worked at Shek Pik Prison between 2001 and 2006.  He agreed that there were grilled gates at the different workshops at the prison and that it was possible to pass a piece of paper through the grill.  This witness was now in charge of the hospital at Stanley Prison.  He confirmed that there were toilet facilities at the hospital for Category A prisoners and said that only Category A prisoners from the same unit would be allowed to share the facilities.  But if they were of different units they were absolutely not allowed together in the same facility.

104.  This concluded the evidence that the parties adduced before the court.

The 1^st applicant’s appeal

105.  The 1^st applicant’s appeal depended entirely upon him persuading the court to receive his fresh evidence on appeal and in reliance upon it to find his convictions unsafe.

106.  Mr Plowman SC for the 1^st applicant argued that the issue that this court had to decide was whether the fresh evidence would provide a reason for allowing the appeal.  He submitted that the answer to this question must be in the affirmative for if the jury concluded that the evidence of any of the witnesses is or might be true then they would acquit.  In this respect he focused his submissions on the evidence of Ngan, Ng and Nguyen.  He addressed the court on the credibility of the fresh evidence and argued that if the court accepted that the 1^st applicant’s witnesses were credible then the pre-conditions to reception of the evidence under section 83V were met.     

107.  In support of his contention that the new evidence was credible he submitted that prison records were consistent with the witnesses’ evidence and demonstrate that there existed the opportunities for the asserted conversations to have taken place. Furthermore the witnesses gave consistent evidence.

108.  We agree with Mr Plowman that they key to our determination of the 1^st applicant’s application is our assessment of whether the evidence he seeks to adduce is credible.  For, if it is, it would clearly afford a ground for allowing the appeal.

109.  In order to determine the credibility of the fresh evidence, the starting point must be to place it in context and here there are a number of very important contextual elements.  They are:

(i) in the course of the defence case at trial the 1^st applicant testified he had been shown a 3 page document written by Li Cho Ming and provided to Lo Hon Hing which would be the basis of their false testimony so that they could extort money from the 1^st applicant.  The 1^st applicant said he was shown this document in the presence of his solicitor, Mr Yau, and a barrister.  This document can no longer be found, no report of this document was made to the police, the barrister was not called and the solicitor, Mr Yau, who testified as a prosecution witness, denied having received such a document from Lo Hon Hing, of giving it to the 1^st applicant and of talking to the 1^st applicant about it; 

(ii) the 1^st applicant in his evidence testified to being blackmailed and framed by the accomplice witnesses and of having reported it to the police by letter dated 22 September 2010 but in his report to the police he made no mention of the document written by Li Cho Ming and provided to him, via his solicitor Mr Yau, by Lo Hon Hing;

(iii) the defence called Cheung Yuk Keung who testified that Li Cho Ming was not an honest person and had boasted of seeking $2 million from a rich man and was motivated in obtaining a determinate sentence and in order to achieve this would fabricate evidence;

(iv) one of the new witnesses the defence proposed calling on appeal was Pang Tsz Kin who was expected to say that in a conversation with Lo Hon Hing, Lo said he was under pressure from Li Cho Ming and Leung Chi Hung to falsely implicate the 1^st applicant in the murder.  He also revealed a second conversation with Lo in which Lo referred to the arrest of his family and spoke of threats in respect of them by the police if he did not cooperate.  This second conversation took place in the presence of Mak Wing Cheung and Lui Fui;

(v) both Mak Wing Cheung and Lui Fui were proposed as additional witnesses for the 1^st applicant. Affirmations were obtained from them and in those affirmations both Mak and Lui gave similar evidence as to the conversation that Pang Tsz Kin had with Lo Hon Hing outside the clinic of Stanley Prison;

(vi) Pang resiled from his affirmation, conceded that his memory of events as recounted in it was not correct and refused to testify as a witness for the 1^st applicant.  Mak adopted a similar position;

(vii) by the time of the third Notice of Motion Mak had been dropped as a potential witness and by the time of the appeal Lui could not be located and so there was no evidence from him;

(viii) the 1^st applicant first became aware of Lui’s potential assistance (but not of the full extent of it) when Lui wrote to him.  He received this letter in the course of giving evidence at his trial and notwithstanding its potential value to him he forgot to mention it to his lawyers;

(ix) one of the new witnesses for the 1^st applicant was Nguyen Thanh Tung, a very violent person with a horrific record for acts of violence perpetrated against other prisoners whilst he is serving his sentence.  In August 2010 he violently assaulted Li Cho Ming.  Coincidentally Li had identified the 1^st applicant at an identification parade on 1 June 2010 and given his third statement to the police on 4 June 2010.

110.  What these contextual elements reveal is a pattern of conduct in which the 1^st applicant seeks to impugn the credibility of the accomplice witnesses.  The first attempt failed when the solicitor refused to cooperate and contradicted the evidence of the 1^st applicant.  The second attempt failed when the jury did not find that the evidence of Cheung Yuk Keung caused them to have a reasonable doubt about the 1^st applicant’s guilt.  Nor were the jury inhibited from convicting by the evidence of the 1^st applicant that he was being blackmailed by the accomplice witnesses or by his report of that to the police and no doubt his failure to mention to the police the three page document provided by Lo Hon Hing had something to do with this.  The post-conviction attempt of using Pang, Mak and Lui completely unravelled when they refused to testify in support of their affirmations and even went so far as to admit that those affirmations were not accurate.

111.  The next attempt, and the only successful one, was the evidence adduced before us.  But this attempt was successful only to the extent that finally the 1^st applicant had witnesses who at least came up to proof.  Notwithstanding the valiant attempt by Mr Plowman to persuade us that the witnesses were credible we are in no doubt at all that their testimony is wholly incapable of belief and we have no hesitation in rejecting it.

112.  The whole premise of their evidence is that persons who are going to have to spend the rest of their lives in prison associating with fellow murderers, many of whom will have triad affiliations, had fabricated evidence against a fellow prisoner and then boasted about it to other prisoners whom they barely know.  This premise would be straining credulity even if it was assumed that the 1^st applicant was a harmless, legitimate businessman.  But if it is accepted that he is, in fact, a triad head, then the premise that the accomplices would boast about not just informing on him but falsely testifying against him utterly beggars belief.

113.  The attempt to portray the witness Nguyen as a person intimidated by Li who had to assault him for his, Nguyen’s own protection was so absurd, it would have been laughable had the circumstances not been so solemn.

114.  It is obvious that Nguyen is a highly violent person who has become, within the prison, a thug for hire.  This is not the kind of person who engages in purposeless violence.  We have no doubt that there was a reason for his assault on Li and we do not regard the proximity of the assault to Li Cho Ming’s identification of the 1^st applicant at an identification parade and his provision to the police of a third witnessstatement as mere coincidence.  In the circumstances this assault by this prisoner has all the hallmarks of an attempt to intimidate Li from cooperating with the police.  Reliance by the 1^st applicant on this witness has completely backfired on him, as his dependence on this witness, in the context of all the other efforts of the 1^st applicant to neutralize the accomplice witnesses, taints all the other new evidence on which he now relies.

115.  There are also inherent incredibilities in the evidence of the other witnesses.  The explanation of Ng Pak Lun for his failure to speak to the 1^st applicant at Lai Chi Kok when the 1^st applicant was there during the course of his trial and his decision to speak to him in the middle of 2013 is simply not believable.  Then, the failure of the 1^st applicant to act on this information until after April 2014 is contrary to common sense.  The evidence in relation to Ng’s correspondence with Lo Hon Hing does nothing to enhance Ng’s credibility or damage Lo’s credibility.

116.  The problem with the evidence of Ngan Lak Kwong is that apart from the inherently incredible nature of it, for the reasons already mentioned, it is very similar to the past efforts to impugn the evidence of the accomplices and is tainted by the fact that those past efforts failed because the witnesses resiled from their evidence or refused, in the case of Mr Yau, to be forthcoming in the support expected of them.

117.  In respect of Liu Chun Yip, his evidence has no credibility whatsoever.  His conversation that he claims he had with Leung occurred after Leung had given evidence in the 1^st applicant’s trial and in his testimony Leung had not implicated the 1^st applicant.  For all these reasons we are of the view that the evidence is not likely to be credible and would not, therefore, afford any ground for allowing the appeal.  We refuse to receive the evidence under section 83V and we find no merit in the 1^st applicant’s ground of appeal.

The 2^nd applicant’s appeal

118.  The 2^nd applicant’s first ground of appeal complains that in making a comment in respect of Leung Chi Hung’s evidence that the jury might consider he had a poorer memory than the other witnesses, the judge’s summing up became unbalanced and was unfair to the 2^nd applicant. 

119.  There is nothing wrong in a trial judge commenting on the evidence as long as the judge ensures that the evidential issues are accurately left to the jury in a balanced and fair way and the jury is left in no doubt that it is for them to decide what evidence to accept and what weight should be given to particular evidence.  The comment by the judge was clearly prompted by the evidence of the witness himself who on a number of occasions admitted that his memory was deficient and his recollection of events incomplete.  There is no merit in this ground of appeal.

120.  The second ground of appeal is allied with the first ground of appeal and complains that the judge’s comment about the evidence implicating the 2^nd applicant was unbalanced in the light of the evidence of Leung Chi Hung.  It was not.  The judge accurately set out the evidence of the witness contrasting the evidence of Leung with the other accomplice witnesses. The jury were well aware that this difference existed and that they had to take it into account in assessing the weight to be placed on Leung’s evidence and in determining how it impacted on their assessment of the evidence of the other accomplice witnesses.  There is likewise no merit in this ground of appeal.

121.  Counsel for the 2^nd applicant, Mr Kan, indicated at the hearing of the appeal that he would not be pursuing his third and fourth grounds of appeal.

122.  The 2^nd applicant’s fifth ground of appeal complains that the judge’s summing up was deficient in respect of the witness Cheung Yuk Keung, the third witness for the 1^st applicant, in that no mention was made of Cheung’s statement in his letter to the court that “one should not lie to frame up others” and that in his testimony he had explained that what he meant by this was that Li Cho Ming would be framing up the two applicants in order to obtain a reduction of sentence and to give an account to the deceased.

123.  The evidence of Cheung related solely to Li Cho Ming and it impacted upon Li’s credibility in two ways.  First, it attacked his honesty and the truthfulness of his evidence by describing him as a liar and hypocrite.  This was specifically addressed by the judge in her summing up.  The second way in which Cheung’s evidence impacted upon Li Cho Ming was by his assertion that Li intended to demand $2 million from an unnamed rich man, by inference the 1^st applicant, and intended to fabricate evidence against someone in order to get a determinate sentence.

124.  The judge specifically mentioned the demand for $2 million and in respect of the allegation that Li intended to frame others she implicitly referred to it when addressing the impact that Cheung’s evidence may have on the jury’s assessment of the credibility of other witnesses.  On this issue she said:

“But you have to consider the effect on the other evidence. You have to consider the evidence of Li Cho-ming in particular. The 1^st defendant referred to blackmail and the suggestion was that LI Cho-ming would give false evidence. If that was true or might be true, it may cast serious doubts on the credibility of Li Cho-ming, and unless you are sure of the evidence of Li Cho-ming and the evidence of the 5^th defendant in particular, you would find difficulty in finding these defendants guilty of the offences.”

125.  We are satisfied that the judge fairly and adequately dealt with this issue.  It must be remembered that this was a witness who was interposed in the course of the summing up.  His evidence would have been fresh in the jury’s minds and they could have been in no doubt as to what aspects of his evidence the judge was referring to when she discussed the impact his evidence could have on the jury’s assessment of the credibility of Li Cho Ming and other witnesses.  There is no merit in this ground of appeal.

126.  The final ground of appeal complains that there were inconsistent directions by the judge on the arrest by the police of the family members of Lo Hon Hing and the possible effect it may have had on him as to what he said and the truthfulness of his testimony.  The first of the two passages that are said to be inconsistent is as follows:

“It was suggested that the side effect of that arrest might be to cause him to change his mind and give untrue evidence. Though I point that there is no suggestion that the police arrested the family members to put pressure on this witness. Also there is no evidence before you about the arrests or the investigation, apart from what this witness himself has told you and his knowledge is only from what he has been told by others. So you should ignore what he said about those matters and should not speculate about them. The only facts you have are the date of his arrest and the last statement which was made three days later.”

127.  In this direction the judge is clearly distinguishing between information about the police investigation and the impact of the police investigation on Lo Hon Hing.  The direction not to speculate relates to the nature of the police investigation and is given because of the absence of any direct evidence in respect of it.

128.  As to the impact that the police investigation could have had on Lo, that is addressed by the last two sentences of this paragraph.  Immediately following this paragraph the judge continues:

“The issue that you have to be satisfied now is his credibility. …He explains his long, drawn out journey through the witness-box by saying that he feared triad retribution … So you would look at the progression from his initial statement to his appearance in court…”

129.  This first direction on the impact of the police investigation on the evidence of Lo Hon Hing is clear and accurate. 

130.  We shall now turn to the second direction which it is said is inconsistent with this first direction.  In her second direction to the jury on this issue the judge said: 

“You will recall that PW5 was recalled to give evidence after he had given evidence the first time and he was asked at that time about the fact that his family members were arrested on 21 October 2011. Three days later he made a statement which he says is a true statement saying what happened. It has been suggested that the pressure on the fifth witness, even if that was not the purpose of the arrest, would have existed and may have been pressure enough to cause him to make a false statement. That is a matter for you to consider, you have heard what the witness said about these things and you have heard that he said that once he know he had the support of his family he felt free to tell the truth and he stood by his statement of 27 October 2011.”

131.  This direction is concerned solely with the impact of the police arrest of Lo’s family on the truthfulness of Lo’s testimony and on his credibility.  There is nothing inconsistent with what the judge directed in the earlier part of her summing up.  The 2^nd applicant’s submission that the two directions are inconsistent relies entirely on reading the words from the first direction “So you should ignore what he said about those matters and should not speculate about them” as referring to the impact of the police investigation on Lo and as potentially affecting the truthfulness of his evidence and his credibility.  However, that is simply not so.  When read in context, “those matters” clear refer to Lo’s hearsay knowledge of the police investigation.  There is nothing in this ground of appeal.

Conclusion

132.  For these reasons we refuse the 1^st applicant’s application for leave to adduce fresh evidence on appeal and dismiss both applicants’ applications for leave to appeal their convictions.

133.  Prior to the hearing there was extant an application by the 1^st applicant for leave to appeal his sentence.  However, at the hearing of his appeal he informed the court that he did not wish to pursue it and it was thereupon dismissed. 

[1] 60% of the shares of Ching Wui were held in the name of the 1^st applicant’s girlfriend but in his evidence the 1^st applicant admitted that these shares were in fact his.  

[2] They were arrested on 24 October 2011.