THE QUEEN v. LEUNG CHEUK-FAW AND OTHERS

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Headnote

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                Murder/Robbery - well planned and executed raids on jewellry shops by several men most of whom were armed with guns - Appeals dismissed - In such cases once it is clear that guns were carried by any of the participants and that their use in such a way as to cause serious injury was perceived as a substantial possibility a common intent sufficient to support a charge of murder has been established as against all who so perceived even though the design was primarily to carry out a robbery - Confessional statements - a discretion to exclude remains in the trial judge on grounds of unfairness apart from the issue of voluntariness - R. v. Sang ((1979) 69 Cr. App. Rep. 282) - No such deception or trickery as might within that principle have obliged the court to exclude statements was shown to exist in the present case - Lai Kin Ming (Cr. App. 380/83) did not purport to establish any exclusionary principle going wider than anything which may be gathered from the existing authorities.

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JUDGMENT

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McMullin, V-P., :

1. On the 2nd of April 1981, at about 9:30 a.m. in the morning, five masked men carried out a robbery at the Chow Tai Fook Gold & Jewelry Co. Ltd., at 420 Prince Edward Road, Kowloon. Three of these men, each of whom was armed with a pistol, entered the premises, fired a few warning shots and then removed a quantity of gold ornaments valued at about $51,000. They then withdrew having fired a few more shots and rejoined their companions on the street outside, who had been keeping watch. All five then boarded a van which had been parked outside the shop,and drove off. A shot was fired from the rear of the van at a taxi which happened to be following, damaging an indicator light and causing the taxi driver to stop so that traffic behind the taxi was held up and the men in the van escaped. The evidence was that a total of six persons had taken part in this affair, the driver of the van having remained within the van throughout.

2. Although there had been no resistance by the shop assistants, one of them was wounded in the hand by one of the shots fired by one of the three men in the course of the robbery. The robbers escaped unscathed and there were no immediate arrests.

3. At 12:30 a.m., on the 6th of May, 1982, a gang of men invaded the Wing Hing Cheung Jade and Jewelry Co. Ltd., at 536 Canton Road, Kowloon. Some of them were armed with pistols and some were carrying big bamboo baskets. Two members of the family which owns that business, Mr. Tang Kwong Ming and Mr. Tang Kwok Wah,were among the persons working within the shop at this time. One of the intruders, brandishing his pistol, approached Tang Kwong Ming and announced that the purpose was robbery. Then other members of the gang jumped over the counters on either side of the shop and began emptying cases containing jade ornaments into the bamboo baskets.

4. Tang Kwong Ming, showing a great deal more in the way of courage than discretion, grappled with the man who approached him in the belief that his weapon was an imitation pistol, but desisted immediately upon its being accidentally discharged into the ceiling. He squatted doom and the robbers completed their business, which took about three minutes, and then began to withdraw.

5. Nevertheless, despite this warning, Mr. Tang had the hardihood to throw a stool at the back of one of the retreating robbers who thereupon turned and, at point blank range, fired a shot in his direction. The bullet struck him in the face and caused him to collapse upon the floor. Remarkable to relate, this bullet which lodged in his upper jaw, did not cause him to become unconscious. More remarkably still, it did not abate his desire to resist, for he seized one of the robbers by the leg as the latter fled with the others, and, for his pains, was kicked and trampled on by the latter in effecting his escape.

6. His brother Tang Kwok Blab showed something of the same mettle, but, tragically in his case, his want of discretion proved fatal. He followed the robbers out of the shop, presumably with the intention of seeing whether help was available, or to see where they were going, and one of them turned and fired at him from a few paces away, the bullet struck him iii the chest, piercing the heart and causing massive damage to the heart and other organs from which, very shortly afterwards, he died.

7. The evidence showed that some nine persons, including the driver of the van, had taken part in this robbery.

8. In the course of this affair, shots were also fired by some of the men outside the shop, and a young boy and an elderly man were struck by bullets but fortunately their injuries, although they required treatment in hospital, were not of a very serious nature.

9. Once again, the robbers escaped in a van. Although they had been compelled in their haste to leave behind one of the baskets of jade taken from the shop, the jade which they had succeeded in taking away with them was valued at about $2.2 million.

10. Police investigations led to the arrest of six men in connection with these offences. These arrests all took place early in July 1982. Amongst those arrested was a man called Leung Chun-yee who, while in custody, admitted to having taken part in both of the robberies. He was eventually granted an immunity from prosecution on the undertaking that he would give truthful evidence for the Crown concerning both offences. The other five men were subsequently jointly tried upon an indictment containing four counts.

11. In the first count they were all charged with the murder of Tang Kwok Wah and in the second with the robbery at the Tang family shop on the 6th of May.

12. The 3rd defendant, LI Kai - lam, and the 5th defendant, CHEUNG Wai-yee, were charged on the third count with the robbery at the Chow Tai Fook Jewelry Company on the 2nd of April.

13. On the fourth count the 3rd and 5th defendants were jointly charged, together with the 4th defendant, TONG Chi-hung, with possession of firearms without a licence under s.13(1) of the Firearms and Ammunition Ordinance. The latter charge arose from the discovery by the police of some nine hand-guns of various descriptions, in premises at 169, Castle Peak Road, Kowloon, where the 3rd and 4th defendants were arrested on the 5th of July 1982.

14. Subsequent investigation disclosed the fact that the 5th defendant was the tenant of those premises, and he was found in possession of keys thereto when arrested in Yuen Long. Keys to the premises were also found in the possession of the 3rd and 4th defendants and the jury were properly instructed that possession of these keys attracted the relevant presumption as to possession under the Firearms and Ammunition Ordinances.

15. The 1st defendant was acquitted upon the first and second counts - the only counts with which he was concerned.

16. The 2nd defendant who was likewise concerned only with the first and second counts - the 6th of May Tang family Jade Shop offences - was convicted by the jury upon both counts.

17. The 3rd defendant who was charged with all four offences pleaded guilty to robbery under the second count, and he was found guilty after trial of the other three offences. He has not challenged his conviction for the Chow Tai Fook robbery (count 3).

18. The 4th defendant was found guilty after trial on the first and second counts - the jade robbery at Canton Road on the 6th of May and the murder of Tang Kwok Wah. He was found guilty on the fourth count of possession of arms without a licence and he was not concerned in the charge of robbery under count three. Neither he nor the 3rd defendant seek to upset the firearms conviction (count 4).

19. The 5th defendant was found guilty by the jury of all four offences. He does not challenge the firearms conviction.

20. Forensic evidence concerning the matching of certain bullets recovered from the scenes of these robberies with certain of the weapons discovered by the police on the 5th of July at the Castle Peak premises established that two of these guns had been used in both robberies. The bullet recovered from the body of the deceased was shown to have been fired by one of the hand-guns recovered from 169 Castle Peak Road, and that taken from the jaw of the deceased's surviving brother, Tang Kwong-ming to have been fired from another of the nine hand-guns then recovered. Although the accomplice, Leung gave evidence of the distribution of certain of these pistols on the morning of the 6th of May, there was no evidence to identify any one of the five defendants as the person who had used the gun which had been used to kill Mr. Tang Kwok-wah or the gun which had caused the injury to his brother.

21. The accomplice, Leung, gave detailed evidence covering all four offences laid in the indictment.

22. The four defendants, who were all separately represented at the trial, now apply for leave to appeal against certain of these convictions. They all ask for leave concerning their convictions under  the first count - the jade - shop murder - but only in the case of the 2nd and 4th defendants has it been contended that the robbery convictions associated with that count should go.

23. In the case of the 2nd defendant, this contention rested on two grounds, viz., (1) that the actual directions on the nature of corroboration given by the trial Judge were insufficient; and (2) that the corroborative material relied on by the Crown - consisting of oral admissions made by the 2nd defendant while in police custody - should have been excluded by the trial Judge in exercise of his discretion. Both of these points are also made by Mr. Keane against the conviction of the 2nd defendant on the murder count as well. Indeed, the latter point falls to be considered upon that count in respect of all the defendants, although not specifically urged on behalf of the 5th defendant by Mr. Potts.

24. So far as count two (the robbery) is concerned, only the first of those points is urged in the case of the 4th defendant, the second point - the admissibility point - urged by Mr. Keane only in respect of the 2nd defendant - raises matters of general importance which will be more conveniently dealt with later. So far as the count two robbery is concerned, the first of these points, touching the case of the 2nd and 4th defendants, may quickly be dealt with.

25. The Judge's direction was in the following terms :-

"You have, first of all, to consider the evidence of the accomplice LEUNG and when you have considered and assessed his evidence, it is always important to bear this warning in mind when you deliberate upon your verdicts. That is, that it is dangerous to convict on the evidence of an accomplice without any other evidence to support it. That is, his evidence must be supported by some evidence which tends to implicate a defendant in some material particular - that is, by connecting him or tending to connect him with the offences he is charged with. As each defendant is to be considered separately or must be considered separately, so also should there be separate supporting evidence in respect of each of these offences."

26. It is true that that falls short of Lord Reading's classic formulation, many times repeated in later cases, which may be found at page 91 in Vol. XII of the Criminal Appeal Reports, in the case of R.v. Baskerville⁽¹⁾, in that the Judge here has omitted to say that the corroborative evidence must show not only that the crime has been committed, but that the prisoner committed it. There could be circumstances in which merely to say that the evidence must tend to connect the prisoner with the offence might be fatally deficient. But in the present case, the admissions made by the 2nd and 4th defendants amount of a confession to full complicity in the crime of robbery, and whatever ambiguity might be said to have resulted from this omission in the direction in relation to the murder charge, the jury once they had accepted that these confessional statements were true, could have been left in no doubt that these defendants were implicating themselves fully in the offence of robbery.

27. The point might have more substance in relation to the murder charge, but there it falls to be considered with the criticism - common to both counsel - directed to the question of intent as it bears upon the first count, and the instructions given to the jury thereon. To that we must return. With due respect to counsel, this point is of no substance at all in the case of either defendant, in relation to the second count.

28. Mr. Keane's main point concerning the robbery charge touches only the case of the 2nd defendant. There is no doubt that if the Judge eras wrong in admitting any of the confessional statements, then his direction that any such statement was capable of affording corroboration for Leung's evidence, however it was couched, would have amounted to a fatal misdirection. If, that is to say, the admissibility point is a good one, it touches both the robbery and the murder counts. To that we will return.

29. The principal point taken upon appeal on behalf of the 2nd, 3rd and 4th defendants, and virtually the only point argued on behalf of the 5th defendant, concerns the convictions of the defendants upon the murder charge.

30. It was common ground that the man who shot and killed Tang Kwok Wah was someone other than anyone of the five defendants. The brown therefore, necessarily, based its case against them upon the principle of common design. It is said that the trial Judge's directions upon this most important aspect of the Crown's case were fatally deficient in that (a) he failed to distinguish between the intent necessary to support a conviction for murder, from that which would suffice only to make the co - adventurers guilty of manslaughter; and (b) that this error was compounded by his failure to identify what was the corroborative material which was capable of supporting the testimony of Leung, to the extent of the higher degree of intention.

31. The worth of these contentions can only be gathered by examining the actual directions given by the Judge against the background of the circumstances revealed to the jury by the evidence.

32. Leung Chun-yee, the accomplice, described how he had got together with two other men in March 1982 and how they had planned to rob the Chow Tai Fook Jewelry Co. in Prince Edward Road. He described the part played by himself and two of the defendants, the 3rd and 5th defendant in ,that robbery. We are not now concerned with that charges. The 3rd defendant has not sought to challenge his conviction for that robbery, and Mr. Potts for the 5th defendant has made no representations concerning it other than lay way of enlisting a point put forward by Mr. Keane which we rejected upon the hearing of the appeal and which will be dealt with hereafter in relation to the question of admissibility.

33. Leung described how, after that first successful venture, he got together with the same two men who are not defendants and with the 3rd and 5th defendants to plan the Wing Hing Cheung Jade-Shop robbery some time towards the end of April. At a meeting on the 5th of May, he and the 3rd, 4th and 5th defendants worked out a plan which involved the use of weapons. The part to be taken by each of the participants was discussed. He described how the following day he picked up the 1st and 2nd defendants and the same two men who had taken part in the previous robbery and drove them in his car to the Lok Fu reservoir where they met the 5th defendant and several other men who had come to that place in a van driven by the 5th defendant. The 5th defendant then distributed a number of hand guns, all of the defendants, with the exception of the 1st defendant, being supplied with one each. The 5th defendant also gave some instruction to some of the participants in the loading and use of these guns. Each man was then assigned the part that he was to play.

34. They parted and met later at a steak house and eventually all of them were driven by the 5th defendant in the van to the fling Hing Cheung Shop where the robbery was carried out.

35. He described how six of the men went into the shop, leaving himself and the 5th defendant and 3rd defendant outside on the lookout, he having pulled certain traffic barriers across the road in order to prevent traffic passing that way. He also admitted that he had brandished his gun in order to frighten passers-by. He heard shots being fired within the shop and after about three minutes the others rushed out and he was picked up in the van and driven off, some of the others escaping in private cars.

36. In cross-examination he admitted that he himself would have used his gun to fire it in order to frighten people or, if need be, to open fire at persons if things looked like going wrong.

37. The 2nd defendant gave evidence. He told the court that on the morning of the 6th, he was summoned by a person called Kwok Kar - one of the non-defendant participants mentioned by Leung - because he owed Kwok Kar some money, he was inveigled into joining a number of persons in the van which drove to the Wing Hing Cheung jade shop, a number of these persons he saw were armed with pistols. It was only in the course of the journey that he was told that he was required to take part in a robbery.  He was very frightened and when they alighted, he was told that he must carry out jade in a basket when the shop was held up, but at that point, a policeman was observed and he and Kwok Kar walked some distance away together. At that point he told Kwok Kar that he would not take part in this venture and took a taxi to his own home. On the following day, the 7th of May, he was once again summoned by Kwok Kar to meet him at a restaurant and he did so. Kwok Kar then told him that the robbery had been carried out and he reproached him for not having taken part and given his assistance.

38. None of the other defendants gave evidence, but the 5th defendent attempted to establish an alibi by calling two witnesses.

39. Each of the defendants, while in police custody, made statements which contained admissions which the officers of the Crown rightly regarded as supporting the Crown's case. The statements of the 3rd and 4th defendants were recorded in writing. No written statements were taken from the 2nd and 5th defendants, but evidence was given of relevant admissions made by them in answer to questions in the course of police investigation while they were in custody. The officers who testified in Court to these admissions were permitted to refresh their memories from notes which they had made of the exchanges with the prisoners and which, in the case of the 2nd defendant, had been made about an hour and a half after the interrogation, and in the case of the 5th defendant, no less than ten hours after the interrogation.

40. All of these admissions were made the subject of a trial within the trial on the issue of admissibility and the record discloses a fairly prolonged controversy between the Crown and the Defence as to whether the statements attributed to the 2nd and 5th defendants required any such treatment since, unlike the 3rd and 4th defendants, it was hot alleged in their regard that they had been ill-treated prior to making the statements.

41. It would appear, however, from such of the submissions of counsel as we have upon the record, that counsel for the 2nd and the 5th, and indeed for the 3rd and 4th as well, were also alleging inducement by the police in the form of promises, more or less indirect and veiled, of the possibility of becoming prosecution witnesses in return for the giving of truthful information. The Judge was justified therefore in dealing with all the statements as fit for the separate inquiry.

42. The suggestion of inducement in relation to the 2nd and 5th defendants does not seem to have been substantiated either on the separate inquiry or when the matter came before the jury, and the Judge makes no reference to that in their regard in giving his brief ruling. At the hearing of the appeal, neither Mr. Keane for the 2nd, 3rd and 4th defendants nor Mr. Potts for the 5th pressed this question of inducement at all.

43. Mr. Keane did of course challenge the admissibility of the statements attributed to the second defendant and his criticisms of the manner in which they came to be made fall to be considered when we return to the question of admissibility. For the moment, what is of concern is the nature of the admissions themselves.

44. In the case of the 2nd and 5th defendants,  these admissions were the result of fairly lengthy exchanges - the trial Judge in his ruling referred to them as "conversations" - between the defendants and their interrogators. The 2nd defendant admitted to having been a participant in the 6th of May jade shop robbery, but he denied carrying a gun and said that all that he had done was to carry a basket of jade out of the shop to the van. He gave a detailed account of where each person had been within the shop in the course of the robbery and he made a couple of rough sketches to illustrate what he had said. These were introduced as exhibits at the trial.

45. The 5th defendant admitted to having taken part in both robberies. He admitted having driven the others in the van to the  jade shop on the 6th of May.  He admitted having fired three shots from his gun as he stood outside, upon lookout, while the others were in the shop, the third of these shots was fired after one of the emerging robbers had fired at a passing car causing it to stop and block up the traffic. He was aware that several of the others were carrying guns including two of the robber gang who had not been captured. He identified another of the persons who had not been arrested as the man who had actually fired the fatal shot at Mr. Tang.

46. The 3rd and 4th defendants made statements after caution which were recorded in writing, read back to them and signed by them. These were introduced in evidence. The admissibility issue in their regard was resolved in favour of the prosecution by the trial judge and no point was taken before us on their behalf upon the hearing of the appeal.

47. The 3rd defendant in his statement admitted to having taken part in the robbery on the 6th of May. He said that the 5th defendant had given him a 0.45 pistol and asked him to use it to prevent policeman from interfering and to open fire  should any policeman arrive. He said that the 5th defendant had given a pistol each to two other young men and had told them to shoot members of the staff of the shop if they resisted. He remained outside the shop and he saw the 5th defendant firing his pistol at a private car and he admitted that he himself fired two shots at the same car.

48. In his statement, the 4th defendant said that this robbery had been planned by the 5th defendant and he said that he and the accomplice Leung and some others stole the Mitsubishi van which was used. He described how he and Leung and some others went a few days before the robbery to look round the inside of the Wing Hing Cheung Jade Co. He was one one of nine persons, including the 3rd defendant and the accomplice, who foregathered with the 5th defendant at the reservoir when the pistols were handed out. He took part in the actual robbery himself, being possessed of a 0.22 revolver. He fled with the others after the robbery and he saw the 5th defendant firing several shots at the private car.

49. The substance of Leung's evidence and that of the 2nd and 4th defendants and the substance of the several statements outlined above was fairly and clearly put before the jury by the trial Judge.

The Matter of Common Design

50. The Judge pointed out that the jury must first decide whether the person who actually fired the fatal shot had intended to cause death or really serious bodily injury. In the circumstances it is unlikely that the jury had much difficulty in forming a conclusion that the killing was murder on the part of the person who fired the shot. Then having described the evidence giver by Leung in relation to the robbery on the 6th of May, he turned to the question of common intention, and he said :

"What then is the legal position of the others who participated in that robbery? It is settled law that where two or more persons embark on a joint enterprise, each is liable for the acts done in pursuance of it and also for the unusual consequences of such acts,  provided they arise from the execution of the joint enterprise. But if one of the persons goes beyond what has been tacitly agreed as the scope of the enterprise, his co-adventurers are not liable for the consequences of that extraneous act, that is, the act which is outside the contemplation of the persons taking part in the execution of that joint enterprise.

 

In this case, what was in the contemplation of the persons or the participants in the commission of the robbery? Did they carry those loaded firearms purely for the purpose of instilling fear in the minds of the persons whom they planned to rob, or was there another purpose, that is, that they were to use those firearms to overcome any resistance they might encounter in the course of the robbery? These are matters which you will have to consider.

 

What that intention was is a question of fact. You might, for instance, ask yourselves how it is possible for you to discover the intention which is hidden in the minds of the participants. Generally, you do so by looking at the surrounding circumstances, that is, the circumstances which had been brought out by evidence adduced in respect of that robbery.

 

You know, and you heard from the evidence, that the weapons used in that robbery were loaded guns, and also that some shots had been fired in the course of that robbery. And you are also entitled to draw such such inferences as may be necessary, in order to discover that intention, from the evidence of all the surrounding circumstances in relation to that robbery."

51. The opening part of that paragraph is a direct quotation from the judgment of the Court of Appeal in the case of Reg. v. Anderson and Morris⁽²⁾. The principle thus stated is beyond dispute and is not here disputed. The remainder of that passage is however criticised for two reasons. Firstly, this, counsel say, was the point at which it was advisable to have instructed the jury as to the distinction between murder and manslaughter and to have given them some definition of manslaughter which would have been relevant to the circumstances of the case. Secondly, it is said that although the Judge was clearly intending to explain to the jury the distinction between two levels of intention, the direction was confusing, in that the Judge chose to illustrate that distinction by referring to the use of the firearms for the purpose of frightening the victims as against their use for the purpose of overcoming resistance to the robbery. Some substance is lent to this criticism by the fact that the Judge at a later stage endeavoured to clarify that distinction by contrasting the use of a gun for the purpose of frightening people with its use as "a weapon of aggression" and then went on at once to remark "although when you use a weapon to frighten somebody, it is still used as a weapon of aggression."

52. Counsel seek to fortify these contentions by referring to the passage in the Summing-up which follows immediately after that which has been quoted above. What the Judge then said was as  follows :

"In relation to the liability of participants in an enterprise such as this, that is a robbery, I would like to quote a decision which was made by the Court of Appeal, I think, in England on this subject as follows :

 

I think it is only common sense and taking a common sense view that when people go around with loaded revolvers and when a revolver or a gun is fired a person who at the receiving end is shot would inevitably suffer serious bodily injury, and if the intention was that the person was shot either to evade capture - in order either to evade capture or to facilitate escape or to overcome resistance, then all those persons who participated in the robbery and who are party to the common intention are as guilty of murder as the person who fired the fatal shot."

 

53. The quotation in that passage is taken from the judgment of the Court of Appeal in Reg. v. Barry Reid⁽³⁾. Now that passage does itself illustrate fairly simply the distinction between the intention necessary to include a man in a design to cause death or serious injury as against an intent to cause some lesser harm. But it is said that the words which follow obscure that distinction by suggesting that where a man shoots in order to evade capture or overcome resistance, then because his intention must include the perception that he is likely to cause serious bodily injury, his companions are necessarily caught within the scope of that murderous design.

54. It may be said that the concluding words of this direction are not as clear as they might have been. The lawyer's mind will readily discern in them the possibility of confusing the objective test which nowadays is recognised as applicable to manslaughter in cases where a death results as the unintended and unforeseen consequence of some unlawful act or combination, as against the specific intention either to cause death or grave bodily injury which the Crown must show in support of a murder charge.

55. With respect to the trial Judge we think it would have been better if, instead of these concluding words, he had given them a definition of manslaughter and had then told the jury that they must decide whether, upon the evidence as a whole, such as they found it to be, the intention of each individual defendant, who, upon the facts, was clearly involved in a common design to carry out an armed robbery, included an intention that the guns would be used to inflict, at the least, grave bodily injury should the need arise.

56. Nevertheless, we feel that the directions which were given and repeated by the Judge in reviewing the case against each defendant individually - can have left the jury in no doubt that they were entitled to convict any defendant of murder only if they were satisfied that he shared with the others an intention to shoot at some person or persons whether with the purpose of overcoming resistance or of evading arrest or for some other purpose connected with the execution of the robbery. The contrast made between that and using the gun merely to frighten must have brought it home to the jury that the distinction lay between consent to the use of guns in such a manner that death or grievous bodily injury would be a likely result of their use, and consent to their use in such a manner that any such result was neither intended nor foreseen.

57. It might be true, as Mr. Kein sought to argue, that a man could be killed by a shot fired by another when the latter intended only to scare him off and neither intended or foresaw that he was likely to cause him grave injury. As an extreme example, an established marksman whose aim was disturbed by a fortuitous stumble at the moment of firing. In such special circumstances, it is possible that a plea of that kind could conceivably have weight with a jury, but nothing of the kind appears in the present case.

58. We think therefore that these directions, taken as a whole, and in particular the final direction which appears at page 854 of the transcript, made sufficiently clear to the jury the distinction between murder and manslaughter and the necessary degrees of intention required to support a verdict of either kind.

59. It may be added that upon the analysis of murderous intent proposed by this Court in Chan Wing Siu & Others⁽⁴⁾, following the decision of the High Court of Australia in Johns v. The Queen⁽⁵⁾ since approved by the Privy Council the trial Judge might well have proposed the necessary questions to the jury in terms more stringent than those which he did use.Where, as here, the evidence discloses a raid by a gang of desperados, some armed with loaded guns, carefully planned and carried out with swift and ruthless despatch, involving meticulous discharge of separate roles through every phase including withdrawal and escape, a jury might have very little difficulty in coming to the conclusion that every man who took part had envisaged from the outset at least the possibility that the guns carried might be used in such a manner as to cause grave injury to someone, pursuant to the common design to rob.

The Matter of Corroboration

60. The Judge properly warned the jury of the dangers inherent in Leung's evidence. Having given the general direction as to the kind of evidence which was needed to support the story of the accomplice, he later dealt with the confessional statements of each of the four defendants and in respect of each of these statements he said that it was capable of affording corroboration of the evidence of Leung.

61. The complaint here is that what was required to support Leung's evidence in relation to the murder charge was something to support the idea of a shared intention to use the guns to inflict grave injury. Mr. Potts indeed put the matter further by suggesting that there was nothing in Leung's evidence itself which directly supported such an intention. To this, Mr. McNamara replied, not unreasonably, that if that were the case, then the whole argument as to corroboration, at least with respect to the 5th defendant, was irrelevant. That may have the ring of a debater's point about it, but it does tend to highlight a certain artificiality in this whole contention. Counsel on both sides have contended that it was incumbent upon the Judge to go through each of these confessional statements and to sort out in each of them what matter there was which could reflect upon the question intention. He should then, it is said, have pointed out what particular portion of each statement, if any, could support an intention to cause grievous bodily harm as against the intention to do some lesser damage, or merely an intention to execute a robbery.

62. There could undoubtedly be circumstances, in a given case, in which such an exercise would be of vital importance. However, counsel on both sides concede that it was for the jury to gather from the circumstances of the evidence as a whole just what degree of intention existed in the minds of each defendant. But that is precisely what the Judge told the Jury to do in the first of the passages from the summing-up set out above. The evidence before the jury included the evidence as to the confessional statements. The jury had been told that a conviction for murder could only follow against any given defendant if he had shown an intention to use the gun to shoot at peoples. The 2nd and 4th defendants gave evidence in which denied having had any part in the robbery/ murder. Although their statements made no explicit admission to an intent to use guns to shoot, they did support Leung's evidence in the very material particular of their presence and participation in the affair. The 3rd defendant in his statement admitted that he had been instructed to use his gun to fire at the police - the only one of all the defendants to make any such admission. On these facts, as regards those defendants, they jury could scarcely have fallen into any error as to the degree to which they were entitled to rely upon the out-of-court statements as corroborative of Leung upon the murder charge.

63. As for the 5th defendant, although he did not himself give evidence, his case was that he was not present and he called two witnesses to support him. The jury were evidently not impressed with that evidence and they had the confirmatory admission in the statement made to the police to presence of a fairly active kind which once again supported Leung in that most material particular.

64. Had the 2nd, 4th and 5th defendants admitted presence at the scene but in such a way as to avoid any necessary implication of involvement with the use of firearms then the Judge's directions might well have been more cogently called in question. That is not the case and the jury were told to look at the evidence as a whole in deciding what each of the defendants intended by way of furthering the common plan to rob. We have no doubt that they did so and that their verdict embraced the whole of the evidence including the 3rd defendant's positive admission in his statement of the relevant intent and the denial by the other defendants of their presence which was contradicted by their own statements, received in evidence and confirming the testimony of the accomplice Leung.

65. As to the alleged deficiency in the direction on the nature of corroboration evidence, when one considers the nature of the evidence which must have been accepted by the jury - the elaborate planning, the concerted and brutal behaviour of all the participants and the brief, savage and successful action of the raid, we do not think that the Judge's omission of a single clause from the Baskerville formula in his direction can have had any adverse effect upon the deliberations of the jury.

66. The statements of D2, D4 and D5 undoubtedly tended to support Leung's evidence by implicating those defendants in the robbery as he had described it. It was for the jury to decide whether they shared an intention, in behaving in that way, of the same kind as Leung himself had confessed to having, viz., an intention to shoot at people. D3's admission was, on its own, evidence of such an intent and was also supportive of Leung's testimony in that regard.

67. Where the evidence discloses a seamless web of violent co-operation between several persons covering a very short period of time, the endeavour to atomize the constituents of each Party's contribution to the whole so as to ground an argument for differing degrees of intention can seldom be a very realistic exercise at any rate where the execution of the planned design is carried out, as it was here, with such a savage indifference to the sanctity of human life. That is not to say that the jury's task is ever less than that of determining the individual intention of the participant; but only that there are circumstances when that task may not be particularly difficult to discharge.

68. Both Mr. Keane and Mr. Potts take another point which relates primarily to these directions given by the Judge on the intent necessary for murder but which indirectly impinges upon the question of corroboration as well. The point is made that nothing in Leung's own evidence positively asserts a design shared by all participants to use the guns to shoot at people. Undoubtedly, he admitted that he himself would have been prepared to do so. Counsel who appeared at the trial for the 1st defendant pressed him closely upon this matter and in a series of answers the accomplice made it clear that he was speaking only for himself and could not speak for the others in relation to what their understanding was about the use of the guns. He was then confronted with what he had said at the committal proceedings which was to the effect : "I understood that the guns were to be used during the robbery to guard the people or if met with trouble; we might fire. All of us understood that." This was put to him in a fairly lengthy question which included a further question relating to the other robbery with which we are not concerned. Counsel then said : "Now that is what you said before the magistrate, is that true?" Answer : "Yes."

69. It was never made clear whether the accomplice was there saying that what he had said at the committal was true or whether he was merely saying that what had been repeated to him by counsel had indeed been said by him at the committal. There is therefore the appearance of ambiguity in that passage, but we think that Mr. Keane is right in his contention that since the purpose of this cross-examination was to test the credibility of the accomplice and since neither counsel for the Grown nor any of the other defence counsel at the trial sought to make anything of this answer, the latter is the true interpretation of it.

70. In dealing with the nature of the accomplice's evidence, the trial Judge pointed out that he was giving evidence under Crown immunity and he reminded them of this part of the cross-examination of the accomplice. In doing so, he repeated in full the answer given by Leung at the committal proceedings to the effect that they all shared the common intention to use the guns if there were trouble. The contrast between that and the steadfast refusal of the accomplice to admit at the trial that he knew the state of his companion's minds must have been evident to the jury. The Judge did not, however, point out that the witness was, at that time, being tested as to his credibility and he did not specifically tell the jury that what had been said at the committal proceedings was not evidence.

71. The argument is that these contradictory replies by the accomplice were left to the jury, as though they both equally bore the character of evidence so that the jury might simply have decided to accept what had been said at the committal proceedings as direct and powerfully persuasive evidence of the nature of the common design, more especially as the Judge immediately thereafter gave his general directions on common intent.

72. This would indeed have been a much more troublesome point, from the respondents point of view, if the whole body of surrounding circumstances which the jury were then advised to consider had not displayed such a formidable impression of planned and concerted violence. In the context of the evidence as a whole, we do not think it can have overborne the jury's mind against any milder conclusion which might otherwise have prevailed.

The Matter of Admissibility

73. Mr. Keane has advanced an argument for the 2nd defendant which, whatever its merits in relation to the circumstances of the present case, raises issues of considerable general concern on the topic of admissibility of statements taken from persons in custody. The argument fell into two parts. Its first and most radical formulation rested upon the decision of the hull Court in Rex v. Wong Chu Kwai & two others⁽⁶⁾. Mr. Potts did not seek to argue this point separately on behalf of the 5th defendant, and he contented himself with asking us to note that, if we were attracted by it, the argument would ensure to the benefit of his client also whose admissions fell into the same category as did those of the 2nd defendant. Briefly put, Mr. Keane's submission was that the effect of the decision in that case was that no statement taken from a prisoner in custody which resulted from a question put to him by a person in authority was admissible in evidence. He conceded that this argument necessarily involved the conclusion that the very many decisions between 1908 and the present day in which statements had been admitted despite questioning of the prisoner and in which subsequent appeals on that ground had failed before the appellate courts were decided per incuriam, the authority of Wong  Chu kwai having been overlooked despite the reference to it in R. v. Ibrahim⁽⁷⁾.

74. We did not call upon the Crown to answer upon this point. Quite apart from the prodigy of inattention involved in the overlooking of an authority, which was said to be so clear and so direct, on the part alike of Bar and Bench for so prolonged a period, it is clear that Wong Chu Kwai lays down no such principle. What is said in the judgments of both the Judges involved in that case is that an answer to a question by a person in authority is not admissible if the accused believed that he was compelled to answer.

75. With the advent of the Judge's rules in their original form in 1912, we embark upon the long and sometimes tortuous journey in the course of which the Courts have sought in individual cases to determine whether, by the standard of conduct embodied in those rules, the behaviour of the investigative authorities has been such as to call the voluntary character of an individual statement into question.

76. In this area of the law one thing is certain : the primary concern of the Judge in considering this matter must always be whether the statement is voluntary in the sense that it is not the fruit either of inducement or threat held out by some person in authority and further that it is not the fruit of conduct so oppressive that there is a danger that it resulted from the will of the person interrogated having been overborne.

77. It may be added that the suggestion that a rule as absolute as counsel argued for, deriving from the decision in Wong Chu Kwai, is sufficiently disposed of by the decision of the Privy Council in the case of R. v. Ibrahim in which the argument that the mere asking of a single question by a commanding officer of a soldier in custody for the alleged killing of another soldier should have excluded his confessional answer was dismissed by the Board.

78. Mr. Keane's main point on this issue does not depend on any suggestion that there had been an inducement or threat such as might have excited fear of prejudice or hope of reward, nor does he allege oppressive conduct on the part of the interrogating officers. All of these matters go to the question of voluntariness of the statement. He maintains however that these admissions, attributed to the 2nd defendant, resulted from conduct on the part of the interrogating officers which must be considered unfair to such a degree that the trial Judge ought to have excluded them in the exercise of his discretion.

79. On this, Mr. McNamara takes the strong line. He maintains that once the issue of voluntariness is decided in favour of the prosecution, the Judge is left with no discretion but must admit the statement in evidence. In his view the only possible reason for suggesting a discretion in the Judge where the statement was ruled to be voluntary, would be that its prejudicial effect outweighed its probative value. This, he said, could never be the case where the statement amounted to a full confession to the crime. The question of fairness, Mr. McNamara said, was one solely for the consideration of the jury in deciding what weight they should attach to any such statement. He bases himself on D.P.P. v. Ping Lin⁽⁸⁾. It must be said at once that we cannot agree with this part of his submission. The case law, in particular R. v. Sang⁽⁹⁾, unequivocally supports the existence of a discretion in the trial Judge to exclude such a statement, even though voluntary within the accepted meaning of that term as understood by the Courts, if its production was attended with such unfairness in the conduct of the relevant authorities, as tended seriously to the prejudice of justice.

80. We do not need to review the many cases decided in Hong Kong in which some question, touching upon breaches of the "Judge's Rules", has been canvassed upon appeal and it is not necessary to rehearse yet once again the many comments which have fallen from the Bench in that regard. Suffice it to say that the rules, propounded in England in 1912 for the guidance of the police, continue to be relevant in this territory in the sense that the code of conduct which they recommend continues to be regarded in these courts as generally appropriate to the conduct of investigations in this territory.

81. In a given case, a failure on the part of the authorities to observe these presciptions, in one or more particulars, may always be urged in support of a contention that a confessional statement should be excluded as in involuntary.

82. Formerly, it appears to have been the opinion of the courts in England that failure to observe one or more of the Judge's rules in the taking of a statement afforded to the trial Judge grounds for excluding it in the exercise of discretion even if it would have been otherwise admissible as a voluntary statements. That was certainly the view of Lord Goddard L.C.J., as late as 1952, in the case of R. v. May⁽¹⁰⁾. However, by the time that R. v. Prager⁽¹¹⁾ was decided, it would seem that the Court of Appeal had come to favour the view that a breach of the Judge's rules was relevant only to the question of the voluntariness or otherwise of the statement.

83. The cases after 1963 have of course reference to the revised Judge's Rules with which we are not concerned in Hong Kong. The same principle, however, in respect of the relevant rules has been adopted in Hong Kong in the case of Lo Shun Wah and others v. R.⁽¹²⁾ in which the Chief Justice having noted that in former times a breach of the Judge's Rules might in itself be relied upon to exclude the statement, went on to say:

"However, this approach has been modified during the past decade. The principle is now firmly established that infringements of the Judge's rules are only one element, albeit an important one, to be considered in deciding the central question, which is whether or not the Crown has established the voluntary nature of the admissions."

84. It should be added that although "oppression", as a distinct category of objection, was first introduced in England in the appendix to the Home Office Circular whereby the 1964 Judge's Rules were introduced, it is well established that in Hong Kong also "oppression" may be made a ground of objection in the sense in which that terms was understood by the Court in Prager adopting the definition given by Lord McDermott in his address to the Bentham Club in 1968, viz : "Questioning which by its nature, duration, or other attendant circumstances (including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the subject that his will crumbles and that he speaks when otherwise he would have stayed silent."

85. We apprehend that where oppressive conduct is the ground urged before the Court, the "other attendant circumstances" referred to in that passage might reasonably be interpreted as including breaches of the Judge's Rules.

86. What Mr. Keane relies upon in the present case is, however, neither such inducement as would excite fear of prejudice or hope of reward, nor yet conduct so oppressive as to overbear the will of the prisoner. What he says is that the 2nd defendant's admissions were obtained clearly by means of a trick or deception.

87. He relies principally upon the decision of the House of Lords in R. v. Sang.⁽⁹⁾ In that case the defendant had been induced by some person who, it was accepted, had acted as agent provocateur in joining a conspiracy to utter counterfeit banknotes. Their Lordships held that a Judge has no discretion to refuse to admit relevant, admissible, evidence on the ground that it was obtained by improper or unfair means. But they expressly excluded confessions and admissions by accused persons from that conclusion. Since the question at issue before them was one of entrapment, it necessarily follows that the expressions to be found in the speeches of all their Lordships, relating to the question of admissions and confessions, must be regarded as obiter as, indeed, several of their Lordships pointed out. It is however obiter of the highest authority and we need look no further for confirmation of the existence of a discretion in a trial Judge to exclude admissions and confessions on the grounds of unfairness.

88. In his speech, Lord Scarman said (P. 308) :-

"All 7 would say is that the principle of fairness, though concerned exclusively with the use of evidence at trial, is not susceptible to categorisation or classification, and is wide enough in some circumstances to embrace the way in which, after the crime, evidence has been obtained from the accused."

89. Dealing with the question whether evidence obtained from an accused by deception or trick may be excluded at the discretion of the trial Judge, Lord Scarman referred to the cases of Kuruma v. R.⁽¹³⁾, Callis v. Gunn ⁽¹⁴⁾; and Jeffrey v. Black⁽¹⁵⁾ in which, respectively, Lord Goddard C.J., Lord Parker C.J., and Lord Widgery C.J. had taken the view that such a discretion exists. Lord Scarman said : "The dicta of three successive Lord Chief Justices are not to be .lightly rejected ...... but, always provided that these dicta are treated as relating exclusively to the obtaining of evidence from the accused, I would not necessarily dissent from them."  Lord Diplock and Lord Fraser of Tullybelton expressed similar views to those expressed by Lord Scarman.

90. Each of their Lordships enlisted the maxim "nemo debet seipsum prodere" as the underlying ground for this discretion. That is the very principle which was prayed in aid by this court in the case of The Queen v. Lai Kin Ming⁽¹⁶⁾ as supporting the other circumstances which moved us to quash the conviction in that case.

91. It became evident in the course of the hearing of the present appeal, from the manner in which counsel dealt with the decision in Lai Kin Ming, that it has already been represented as though it had created a new exclusionary principle in relation to confessional statements - one agreeable to defence counsel and radically inhibiting the prosecution in their employment of such material.

92. While we are not clear as to what representations have actually been put forward in this regard, there seems to have been some suggestion that we were saying that statements made by persons in custody in the form of question and answer in the course of interrogation should not be admitted in evidence. Since the final page of the judgment approves a quotation from Chan Ho Sin⁽¹⁷⁾ in which that notion is firmly discounted, it is difficult to see how the judgment of the court, in which that quotation appears, could be enlisted to support it.

93. Whatever has transpired we would like to make it clear that in Lai Kin Ming we were not purporting to lay down any principles which went wider than those to be gathered from the many existing English, Commonwealth and Hong Kong authorities covering this much trodden ground. After a lengthy recital of the many circumstances which occasioned concern in that case, we came to a conclusion expressed in the words : "But in the present case, the entire procedure involved an impropriety of an oppressive character." (emphasis supplied). The conclusion, in other words, was expressly addressed to the circumstances of that case, and the nature of the procedure there adopted. We can only add that we are in respectful agreement with what was said by their Lordships in D.P.P. v. Pink Lin⁽⁸⁾, the case on which Mr. McNamara strongly relies, and we have no reluctance in taking home to ourselves the admonition addressed by Lord Hailsham to the Court of Appeal (Criminal Division) (p. 21), where the voluntariness issue is stressed as one of fact for the trial Judge, and the Appellate Tribunal is recommended to avoid approaching it in "too legalistic and casuistical a spirit, so as to from, ...........a clog on the proper exercise by the police of their investigatory function, and indeed, on the administration of justice itself."

94. In Lai Kin Ming, in addition to the matter of oppression, we referred to the judge's residual discretion to exclude upon the ground of unfairness. Nothing that was said by their Lordships in Ping Lin gives any countenance to the idea that no such discretion exists and indeed, from what has been said above, it is clear that their Lordships, some three years later, expressly acknowledged its existence.

95. The decision in Sang would also seem to have outflanked a collision between local authorities, to which, no doubt in view of the House of Lords case, counsel did not advert in the course of the argument.

96. In Cheung Kwan Sand and another v. R.⁽¹⁸⁾ it was held that the discretion to exclude admissible evidence in the form of statements was limited to cases where the prejudicial effect effect of the evidence outweighs its probative value, whereas in the subsequent case of Chan Muk Ching v. R.⁽¹⁹⁾ a differently constituted court came to the opposite conclusion.

97. Cheung Kwan Sang was taken to the Privy Council, but the hope expressed by Pickering, J.A. in Chan Muk Ching that the Board would resolve the matter authoritatively, was, in the event, not realised the appeal being allowed upon another ground (see the decision of the Board : Wong Ram Ming v. R.⁽²⁰⁾).

98. In the case of Sang Lord Scarman stressed that the principle of "fairness" is not susceptible to categorisation or classification. What Mr. Keane relies on in respect of the 2nd defendant is in effect the allegation of trickery. What he says is that the police deliberately misled the defendant by leading him on in the belief that answers which he gave to questions put to him would never be.produced in evidence.

99. Both Inspector Roberts and Sergeant Yeung, the officers who questioned the 2nd defendant, admitted that they had made no note of his replies as they were being given. They also admitted, quite candidly, that they did not propose to him that what he said should be taken down in writing in case that should have inhibited the flow of the exchanges between them.

100. The trial Judge himself, in giving his Ruling, evidently did not regard what had occurred as an "interrogation" in the ordinary sense, referring to the interview as consisting of "conversations". The procedure adopted was also unusual in that, since no note was taken, a written record from memory was made some one and a half hours later of the answers given by the defendant. The questioning session itself had lasted about 50 minutes.

101. It might have been expected that this feature of the case would have come far more seriously in question in the case of the 5th defendant, because in his regard the "conversations" were recollected and transcribed some 10 hours after the event. Mr. Potts, however, took no point on this and it is clear that this procedure would not of itself, in the case of either defendant, have called for the holding of a separate trial : it would touch, if anything, not the question of voluntariness, but the question of reliability.

102. In addition, however, it was argued that no caution had been administered to the 2nd defendant; and, further, that the Judge had not dealt with the question of the caution. Both the Inspector and the Sergeant were questioned by Mr. Dinan for the second defendant at the trial within a trial, and both alleged that a caution had been administered. It was admitted that the caution was not complete in as much as the defendant was not told that what he said would be taken down in writing and might be used in evidence.

103. Putting all of this together, we cannot say that the procedure adopted in interviewing the defendant came even close to involving anything so questionable or so unfair as to bring the administration of justice into disrepute. The words of Lord Macdermott (R. v. Murphy⁽²¹⁾) come in as a timely reminder of the need for circumspection in the exercise of this exceptional discretion in favour of the defence :

"Unfairness in this context cannot be closely defined. It must be judged in the light of all the material facts and findings and all the surrounding circumstances. The position of the accused, the nature of the investigation, and the gravity or otherwise of the suspected offence may all be relevant."

It is noteworthy that Mr. Dinan in revealing his client's objection, prior to the holding of the separate trial, alleged, apart from the question of the caution, that there had been positive inducement on the part of the police officers involving a promise that the defendant would not be prosecuted if he told the truth. When they were cross-examined, however, the matter was never put to them as positively as that, and all that was suggested to them was that they had endeavoured to lull the defendant into a feeling of security in order to give the impression that he would not be prosecuted. This allegation was denied by both officers.

104. In his address prior to the ruling Mr. Dinan suggested that the evidence showed that the defendant had been tricked into talking and concentrated principally upon the reliability of what had been recorded and the credibility of Inspector Roberts and Sergeant Yeung, each of whom alleged that he had recorded from memory what had been said without collusion, although the written records appear to have been in terms that were virtually identical.

105. We have no doubt that all the relevant features of the case and the points being made for the 2nd defendant were in the mind of the trial Judge in giving his ruling, and we have no reason to suppose that he overlooked anything of importance in coming to the conclusion that the testimony of those witnesses was free from inducement or trickery and sufficiently reliable to be admissible in evidence.

106. The appeals of all the defendants are therefore dismissed.