HKSAR v. LAM CHUN WAH

CACC646/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 646 OF 1997

(ON APPEAL FROM HCCC 101 OF 1997)

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J U D G M E N T

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Stuart-Moore, V.-P. (giving the judgment of the Court):

1. On 8th October 1997, following a trial before Wong J. (as he then was) and a jury, the Applicant was convicted of the murder of Liu Kam-mei (the victim). He now seeks leave to appeal against his conviction.

2. The case was concerned with what was, by any standards, a horrifying killing which took place on 23rd October 1996. The victim was a 20-year-old karaoke hostess at the time of her death. She was, firstly, beaten about the head and body into an apparent state of unconsciousness before being burnt alive while probably still unconscious. Her body was recovered in a state that was so charred that it was practically beyond recognition.

3. The victim had last been seen alive by her supervisor from work who travelled by taxi with her to Mongkok. The fire where her body was found was first noticed at about 12 noon. Fire officers arrived and, after the fire had been extinguished, it was discovered by Cheung Yiu-ming (the forensic scientist) that there was a second physically separated site of fire nearby. The burnt debris from this area contained personal items such as a lady's handbag and lipstick.

4. The Applicant's involvement was discovered as the result of an extraordinary finding 26 days later which was made by a member of the victim's family when he, together with other relations of the victim, visited the scene on 17th November 1996. Tang Pak-yeung, the victim's brother-in-law, found a black notebook between some rocks alongside metal railings in the vicinity of the murder scene which the police had failed to discover at the time of the original investigation. He looked at it out of curiosity and found, to his surprise, that the victim's name and telephone number appeared on the last page of the book. The contents of the notebook indicated that it belonged to the Applicant.

5. The Applicant was arrested on 28th November 1996. He initially denied any involvement with the events concerning this case. In particular, when shown photographs of the victim, he said he had never met her. He also denied having been in the vicinity of Sam Shing Temple, Kei Lun Kong, Sam Shing Hui, where the victim had been killed. When those replies were given, the police had not yet revealed the all-important discovery of the notebook. As soon as they did so, the Applicant's attitude changed. He immediately agreed that the notebook was his. He went on to admit that he knew the victim. He said:

"Sir, I am wrong. I assaulted her by accident. Give me a chance to tell you everything ... I assaulted and killed her by mistake."

6. In the interview which followed, the Applicant gave a lengthy account of how he had finished work on 23rd October 1996 at 7.30 a.m. and noticed a male and two females by the Mongkok market. The male attracted his attention and made a reference to $1,000 which, according to the Applicant, made him think the girls were prostitutes. One of the girls in particular attracted him and he immediately took out $1,000 and handed it to the man. He then asked the girl who had attracted him what her name was and discovered it was "Ah May". The Applicant continued by telling police that she wanted to go for a "joy-ride" and, to this end, the Applicant and the girl got on a public light bus. They alighted in Ching Wah Lane at a point close to Sam Shing Temple. Next, the Applicant described how he saw the male to whom he had paid the money earlier, together with the other girl who had been with him, getting off another bus. The four of them walked around together. Later, they walked "up along the road" and, on the way to Sam Shing Temple, he saw a "vacated wooden house and stone bench nearby".

7. The Applicant then went on to describe the circumstances in which the victim was killed. As all the grounds of appeal are related to the way in which the Applicant described the killing, it seems appropriate to set out in full what he had to say. The judge, in summing the case up to the jury, reminded them of the contents the two interviews which the police conducted. Taking the Applicant's first account in Exh.49, from the point where the Applicant had described reaching the vicinity of the vacated wooden house, the judge reminded the jury of what he had gone on to say (at page 12L in the summing up) in these terms:

"So Ah May and I sat down on the stone bench and talked. I held Ah May in my arms and touched her body. The other male and female poured out their hearts to each other nearby. I intended to strip Ah May and make love with Ah May. But Ah May refused to strip. She began to push me off and resist. So I scuffled and fought with Ah May. Ah May scratched the inside of my right forearm with her fingernails and caused me bleeding. At the same time she bit the middle finger of my left hand, causing it to go bruised. In the meantime, Ah May squeezed my private parts, giving me pain. I hit Ah May's face and body with hands. Later, Ah May was pushed down by me and her head hit a rock on the ground. There was blood coming out. I held Ah May's head by the hair and banged it on the rock twice."

8. The Applicant then described how the other male and female came to find out what was happening. The Applicant explained to them that Ah May had refused to have sex whereupon, according to the Applicant, the male began to assault Ah May for her refusal to provide a sexual service having been paid so much money. The Applicant then told police in his interview, as the judge reminded the jury at page 13A:

"Later, the two of them were fighting. Later, Ah May fell to the ground and lost consciousness. So I picked up Ah May's handbag and searched a wallet in the handbag. I opened it and took back the $1,000. I, in the vicinity, burnt the things and paper in Ah May's handbag with a lighter. Later, I saw the male and the female dragging Ah May into the vacated wooden house. The male said to me that Ah May was dead. So we talked about burning her. The male and the female were picking something up nearby while I was waiting outside the house.

A moment later, the two came back with some rubbish and branches and put them on Ah May's body. Then a fire was lit to burn Ah May. Then we parted. I took an NT taxi by myself to Yau Oi Estate where I took an LRT train home for sleep."

9. Following the interview in Exh.49, police conducted a further interview which was video-recorded. The translation was Exh.P53A. Whilst this second interview went over much of the earlier ground again, the Applicant gave a version which had a number of small, but important, variations. He admitted once again that he had hit the victim when she refused his sexual advances. This time he said: "I hit her on the belly, hit her on the head." He then described how the victim's head began to bleed after bumping against the rock. When the girl allegedly hit him back, he said: "I hit her again".

10. He went on to describe once more how the other man and woman "dashed forward". The Applicant said that he told them what had happened and the man also hit the victim when he heard the story. The Applicant went on, in words the trial judge reminded the jury about in his summing up at page 15E:

"A. I was standing aside while he was beating her. After being beaten she fell again. She bumped against the rock again. What? I don't know what kind of rock it was. She kept stepping back, stepping back to the muddy ground in the middle.

Q. In what way did she step back to the muddy ground in the middle?

A. That is going through to the inside.

Q. Did Ah May go inside herself or did you people take her in?

A. She went in herself.

Q. That means Ah May was knocked on to the ground by you people?

A. Yes.

Q. Then she rose to her feet?

A. Yes.

Q. Went into the house again?

A. Yes.

Q. What then?

A. Then the two of them hit her again.

Q. What about you?

A. As for me, I stood aside and watched.

Q. What then?

A. After that, they went on to hit her and I joined in to give her several blows. Give a few, a few blows.

Q. You saw the two of them hit Ah May and then you went up and hit Ah May too?

A. Yes.

Q. So what then?

A. Then she retrieved (retreated) into the house again.

Q. Retrieved (retreated) into the house?

A. Yes.

Q. Was anybody in the house at that time?

A. No.

Q. Was it a vacant house?

A. Yes.

Q. What then?

A. Then I saw her fell in a dead faint.

Q. Then you saw her fall in a dead faint?

A. Yes.

Q. What then after she fell in a dead faint?

A. She got off in a faint. The other go-between picked some rubbish-buckets, wooden boards, then the girl, his girl. Again wooden boards were picked. Then I ask what for. No idea. It seemed to burn rubbish.

Q. What about you then?

A. Then I - er - I stood right there to watch.

Q. They picked rubbish?

A. Yes.

Q. Where did they pick?

A. They picked in the vicinity.

Q. Did you help?

A. I helped pick, pick. Without their knowing it, I took, took money from the purse.

Q. Whose purse was it?

A. The purse was Ah May's.

Q. How much money did you get from Ah May's purse?

A. I got two 500-dollar banknotes. They were mine.

Q. That means you got back the one thousand dollars.

A. Yes.

Q. Did you get anything else from Ah May's hand, handbag then?

A. No.

Q. What then?

A. He, indeed. Then, then it came to the man's notice. He saw me taking the handbag. He said we might just as well burn her/it as the money had been taken.

Q. Who said it?

A. It's the go-between, a man, who said it.

Q. So, what then?

A. Then I went to pick rubbish. I threw those, picked rubbish, polythene sheets, and fumbled about for the Ah May's handbag.

Q. Yes.

A. Threw and burnt.

Q. Threw and burnt.

A. Yes. He picked rubbish on his own.

Q. You picked rubbish yourself?

A. Yes, I picked rubbish myself.

Q. Burnt together?

A. Yes.

Q. Then what were used to burn?

A. Lighter and, that is, rubbish and newspaper in a heap. Then lighter was used to set fire.

Q. You mean that the three of you were around?

A. Yes.

Q. Picking discarded articles like wooden boards and paper?

A. Yes.

Q. To set Ah May on fire?

A. Picked whatever we saw. No idea what they were.

Q. Then who lit the fire?

A. I lit up a heap of the woman's, that is, the Ah May's handbag. Having burnt it, I came out and saw that there was smoke. Then he - the go-between - he burnt rubbish. I was unable to see him, the situation inside.

Q. What then?

A. Then the man said let's leave after burning, and then I went. He ...

Q. Well?

A. He said he was not going yet. The two.

Q. What then?

A. Then I walked down and saw him leaving too. He was coming down. I have no idea what happened afterwards.

Q. Where did you go after leaving there?

A. I went back to sleep."

11. These interviews provided the only accounts of what happened to the victim when she was killed. The Applicant did not give evidence at his trial.

12. The prosecution's case was that the other two persons who featured in the Applicant's story had been made up by him in order to have others upon whom to place prime responsibility for the killing. In any event, the prosecution argued that there was ample evidence, even accepting the Applicant's story at its face value, to convict on the basis of a joint enterprise with others to kill the victim.

13. It is clear, therefore, that the jury had to decide this case upon the evidence of such parts of the Applicant's confession that they felt able to believe, and from the inferences which they felt able to draw from the accounts he had given to the police, coupled with other evidence as to the circumstances. This principally came from the oral evidence of Dr. Poon Wai-ming (the pathologist) and the statement of the forensic scientist which was read to the jury by agreement with the defence.

14. Dealing with each in turn, the pathologist described how almost the whole of the victim's body had suffered severe burns. One important exception was the back of the head where the pathologist found four areas of laceration and a bruise. The lacerations were irregular and consistent with the head hitting a rock. The pathologist found no identifiable ante-mortem fracture of the skull. On internal examination, it was revealed that the victim had inhaled hot gases before she died. For this reason, the actual cause of death was given as having been due to burns.

15. The importance of the forensic scientist's evidence in this context was that he found traces of toluene and xylene on item J6, which was a shoe that had been taken from the burnt debris for examination. It had been one of the tasks of this witness to determine whether there were any fire accelerant residues on any of the items taken from the scene of the killing. Toluene and xylene are flammable liquids which are commonly found as constituents in paint thinner mixtures. The forensic scientist formed the opinion, based upon laboratory examination results, that the fire to the victim's body was "probably initiated by flammable liquid such as paint thinner mixture. The severity of fire damage to the dead body was partly due to the use of flammable liquid to initiate the fire and partly due to the burning debris ..."

16. In one other finding of the forensic scientist, he discovered that the back of the dead body had suffered from much less fire damage than the front. The burning pattern indicated that the victim had probably been lying face upwards during the whole course of the fire so that her back was protected from severe fire damage. In the view of the forensic scientist, it was likely that the victim had been lying in the same pose throughout, indicating that she was either dead or unconscious before the fire started.

17. In his Amended Perfected Grounds of Appeal, Mr. Poll, for the Applicant, has advanced five grounds. These can conveniently be divided into two parts and it was at this court's suggestion that we firstly heard grounds 4 and 5 before turning to the other matters raised in the application. This was because ground 5 involved the possibility that further evidence might have to be called.

18. Ground 4 reads:

"The forensic evidence at the trial suggested the 'possible' use of fire accelerants to ignite the body. The Learned Judge omitted the word possible thus making a positive assertion that fire accelerant was used. This was in contradiction to the (Applicant's) version of events and can only have served to undermine (his) credibility."

19. There is nothing in this point. It may have been Mr. Poll's understanding that the forensic scientist had said "possible" which led to the drafting of this ground, but the scientist had gone further than that by indicating that the fire was "probably" initiated by a flammable liquid.

20. In any event, there was nothing which the judge said in summing up the case to the jury which fell short of an accurate summary of the evidence the scientist had given. No doubt the judge would have been well-advised to have repeated the word "probably", but instead he put the matter in the following way at page 4L:

"The evidence of Mr. Cheung Yiu-ming, the forensic scientist, indicates the fire which burned down the house where the badly charred body of the deceased was found was started with fire accelerants such as toluene and xylene which are flammable liquids commonly used as a paint thinner."

21. The forensic scientist, by saying that he believed the fire was probably started with the use of a flammable liquid, was giving an indication as an expert as to how he believed the fire began. The judge did not say that the scientist asserted that the fire had been started in this way. He said that the scientist had "indicated" that it had been started in that way.

22. Turning to ground 5, this was not proceeded with after the court had ruled that no fresh evidence could be called under the terms of section 83V of the Criminal Procedure Ordinance, Cap.221. In effect, Mr. Poll was attempting to advance in this ground a completely fresh line of argument on which no issue had ever been taken in the court below and we ruled, following the judgment in R v Melville, (1975) 62 Cr App R 100, that the proposed evidence should not be admitted.

23. Grounds 1 to 3 read:

"1. The Learned Judge erred in law in that he failed to give sufficient guidance to the Jury as to how they should apply the law to the facts of this difficult and complex case, in particular:

(a) the categorisation of the (Applicant's) admissions to the police as 'confessions' (impliedly confessions to murder) - without indicating to the Jury alternative conclusions that were open to them upon the facts disclosed in those interviews.

(b) the misleading and simplistic view of how the Jury could determine without difficulty 'intention' to murder or cause grievous bodily harm.

2. The Learned Judge erred in law in that he failed to advise the Jury that a manslaughter verdict was an alternative to murder if the Jury concluded that, although the (Applicant) had assaulted the deceased, he had not intended to kill her or inflict grievous bodily harm and at the time the body was burned it was believed that the deceased was already dead.

3. The Learned Judge failed to give sufficient directions to the Jury as to the nature of the joint enterprise and the fact that the other party may have gone far beyond what the (Applicant) had 'agreed' to participate in."

24. The crux of Mr. Poll's argument was that the summing up failed to point out the possible option, which he submitted should have been left open to the jury, of manslaughter by reason of lack of intention. He submitted that on the Applicant's account this was a real option which was denied to him by legal directions that were technically correct as far as they went, but which did not go far enough. The court was invited to consider, in simple terms, that the Applicant's so-called "confessions" were not necessarily indicative of murder although the jury might have been led to believe that they should be taken in that light. It was submitted that the Applicant's account could even be interpreted as a confession to "preliminary assaults" on the victim and subsequent presence at or close to the scene when the victim was burnt to her death by someone else. On this scenario, although Mr. Poll did not suggest this, the Applicant may not have been guilty of homicide at all.

25. Although the Applicant had admitted an assault on the victim, both on his own and then jointly with the unknown man, and to collecting rubbish for burning, Mr. Poll's prime submission was that there was insufficient evidence for a jury necessarily to find that the Applicant's intention was to cause the victim grievous bodily harm at the time of the assault. He equally submitted that, if the jury came to the conclusion that the Applicant did assist in the burning but, in the light of what he said in his first interview, was or may have been under the impression that the victim was already dead when she was burnt, a direction should have been given to the jury that "if a killing by the first act would have been manslaughter, a later destruction of the supposed corpse should also be manslaughter". This quotation is taken from R v Church, (1965) 49 Cr App R 206, to which we shall return.

26. In dealing with these important submissions, which we have taken considerable time to consider, it is necessary in the first place to look at how the judge directed the jury. It has already been indicated that the directions generally given as to the law are not criticised. The criticism is that they were not sufficiently tailored to the circumstances of the case.

27. In this light, and looking at how the judge left murder to the jury, the jury was reminded of the evidence with which we have already dealt relating to the use of an accelerant in starting the fire. The judge went on when dealing with the forensic scientist's evidence at page 4N in the summing up:

"He also found another fire scene in the open space on the left-hand side of the path leading up to the temple. That was the location where the handbag of the deceased was burned. You will remember our visit to the scene and various locations were pointed out by Mr. Arthur. Mr. Cheung found that the body of the deceased was lying with face upwards among the burnt remnants in the burnt house. The photographs in the thick album and the album compiled by the Government Laboratory both show bloodstains and blood smears splattered on the railings, steps, rocks and plant leaves.

Members of the jury, if any person or persons who had hit the deceased against the rocks rendering her unconscious and then put her body in the hut and set fire to it and the fire was of such size and intensity, you may think - it is a matter for you - that it is not difficult to draw an inference from these circumstances, that whoever did these acts must have intended to kill the deceased, or at the very least to cause her grievous bodily harm. It would be a miracle if she would have remained alive, or unhurt. Whether you would draw such an inference or not from this evidence is a matter entirely for you.

Who did these acts is perhaps the all-important question that you have to ask yourself."

28. Following this, the judge provided a concise and accurate account of the prosecution's case, reminding the jury, as he did so, of the matters raised by the defence in cross-examination in order to give a balanced version of events from the point of view of each side. Having done this, the judge reverted to his final directions in law. At page 17G he said:

"Mr. Arthur told you in his opening speech for the prosecution that the other man and woman the accused mentioned in his statement were only imaginations of the accused and they did not in fact exist.

Members of the jury, if you come to the conclusion, after carefully considering the evidence that the other man and woman did not in fact exist, you need only to consider whether the accused killed the deceased alone, without the participation of anyone else.

You will remember what I have told you, that you can accept or reject the whole statement or can accept part of it and reject the rest if you believe that part is true and the rest is untrue. However, if you take the view that the other man and woman did in fact exist and they were acting in what is called a joint enterprise in the killing of the deceased, you can still find the accused guilty if you are sure that he was a party to the killing in a joint plan.

The legal principle underlying joint enterprise is this: where an offence is committed jointly by two or more persons, each of them may play a different part but each is guilty of the offence. Before you can convict the accused you must be sure that he committed the offence himself, or that he did an act or acts as part of a joint plan with the other man and woman to kill the deceased with intention to kill her or to cause her grievous bodily harm. Put simply, are you sure that they were in it together?"

29. The judge then turned to motive and intent which he put in this way at page 18B:

"Mr. Arthur also told you in his closing address in order to prove murder the prosecution need not prove the motive for the murder. That is quite right. In this connection, you must not confuse intent or intention with motive. An intent or intention to kill or cause grievous bodily harm has only to exist at the time of the killing; that is, at the time of the infliction of the fatal blow or blows. It does not have to exist prior to that. That is to say, that the killing does not have to be planned, it does not have to be planned in advance or premeditated. All that has to be proved in a charge of murder is that at the time of the killing, at the time of the infliction of the fatal blow or blows the killer intended either to kill or to cause grievous bodily harm.

Of course, in many cases the intent or intention has existed earlier, but it is not necessary to prove that the intention or intent existed earlier. It is sufficient if it is proved that it existed at the time of the killing; that is, at the time of the infliction of the fatal blow or blows. In other words, in order to prove murder the prosecution do not have to prove also the motive for the murder. In some cases, it is true, motive may be useful evidence to decide whether a person who killed did so with intent to kill or to cause grievous bodily harm."

30. Finally, the judge said in the context of what is material to this application at page 18 O:

"Members of the jury, you will find the accused guilty of murder only if you are satisfied beyond reasonable doubt that is you are sure that he killed the deceased or was a party of a joint plan to kill the deceased with the intent to kill or to cause her grievous bodily harm."

31. The directions which follow this related to provocation about which no criticism is made.

32. In the course of argument we were referred to the well-known judgment of Lord Reid given in Thabo Meli and others v R, (1954) 1 All E R 373, when advising that the appeal should be dismissed. In that case there had been a preconceived plan to kill the victim and then to fake an accident following the killing. The victim was rendered partially intoxicated before he was struck over the back of the head. This caused the victim to lose consciousness but he was still, unbeknown to the accused, alive when he was rolled over a cliff. The victim subsequently died of exposure. Lord Reid stated the point of law, at page 374 in his brief judgment, as follows:

"It is said that two acts were done:- first, the attack in the hut; and, secondly, the placing of the body outside afterwards - and that they were separate acts. It is said that, while the first act was accompanied by mens rea, it was not the cause of death; but that the second act, while it was the cause of death, was not accompanied by mens rea; and on that ground, it is said that the accused are not guilty of murder, though they may have been guilty of culpable homicide. It is said that the mens rea necessary to establish murder is an intention to kill, and that there could be no intention to kill when the accused thought that the man was already dead, so their original intention to kill had ceased before they did the act which caused the man's death. It appears to their Lordships impossible to divide up what was really one series of acts in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan; and it is much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before, in fact, it was achieved, therefore they are to escape the penalties of the law. Their Lordships do not think that this is a matter which is susceptible of elaboration. There appears to be no case, either in South Africa or England, or for that matter elsewhere, which resembles the present. Their Lordships can find no difference relevant to the present case between the law of South Africa and the law of England; and they are of opinion that by both laws there can be no separation such as that for which the accused contend. Their crime is not reduced from murder to a lesser crime merely because the accused were under some misapprehension for a time during the completion of their criminal plot." (Emphasis supplied.)

33. The rationale in Thabo Meli's case was followed in R v Church, (1965) 49 Cr App R 206. In that case, having inflicted serious injuries on the victim, the appellant flung the victim's body into a river. The victim (Mrs. Nott) died of drowning. The appellant's defence was that, at the time when he committed the last act of throwing his victim into the river, he believed her to be dead.

34. The judgment in Church highlights an unduly benevolent direction given to the jury which may well account for the jury's verdict of acquittal on the charge of murder but conviction on the alternative of manslaughter. More to the point, for present purposes, the Court adopted the view of Dr. Glanville Williams, as appears from the judgment at page 214, that in these circumstances "the jury should have been told that if a killing by the first act would have been manslaughter, a later destruction of the supposed corpse would also be manslaughter". Continuing the judgment, Edmund Davies J. said:

"Had Mrs. Nott died of her initial injuries, a manslaughter verdict might quite conceivably have been returned on the basis that the accused inflicted them under the influence of provocation or that the jury were not convinced that they were inflicted with murderous intent. All that was lacking in the direction given in this case was that, when the judge turned to consider manslaughter, he did not again tell the jury that they were entitled (if they thought fit) to regard the conduct of the accused in relation to Mrs. Nott as constituting throughout a series of acts which culminated in her death, and that, if that was how they regarded the accused's behaviour, it mattered not whether he believed her to be alive or dead when he threw her in the river." (Emphasis supplied.)

35. In the light of these authorities, Mr. Saw, S.C., for the Respondent, in replying to Mr. Poll's submissions, invited us to say that the conviction should stand despite the judge's omission to give any direction as to manslaughter by reason of lack of intent. On any view of the evidence, he submitted, the Applicant had admitted to a serious and joint assault on the victim, which rendered her unconscious. The Applicant had then been present when she later met her death by burning in what amounted to one continuous series of actions. The jury could, on the one hand, reject the unlikely assertions of the Applicant that two others were involved, as a figment of his imagination in order to make them scapegoats for what had happened. In such circumstances, they would have rejected the exculpatory parts of the Applicant's story, including a discussion about the burning of the body. Thus, the only material before them would be evidence that the Applicant bore sole responsibility for the head injuries and unconsciousness of the victim. It would be absurd, Mr. Saw submitted, to think that any other intent besides one of those necessary for murder would arise.

36. If, on the other hand, the jury thought it was possible that two others were present, then the jury still had only what the Applicant had admitted to police. Based on these admissions, he first assaulted the victim, then two others joined in before the Applicant made a further assault upon the victim. The end result was that the victim was rendered unconscious. Mr. Saw submitted that on this version it could not realistically be suggested that the requisite intent had not been proved because the jury was not entitled to speculate beyond the strict perameters of the admissions made by the Applicant.

37. We have looked at the evidence with the greatest care in an endeavour to see whether the admissions amounted, as Mr. Saw in effect submits they do, to a case of 'murder or nothing' or if, in present circumstances, the directions given to the jury should have set out further options.

38. The jury was first confronted with one of two options. Either the Applicant was on his own when Ah May met her death or he was with two others who allegedly played a part in her death.

39. Taking the first of these options, it seems to this Court that if the jury was sure that the Applicant was alone with Ah May, then they could have been in no doubt at all that he bore full responsibility for her death. This would not necessarily, however, have resolved the all-important question of what his intent had been at the time he rendered the victim unconscious if the jury believed that the Applicant was under the impression that Ah May was already dead when he burnt her body. However, the Applicant had only mentioned the possibility that the victim was already dead when her body was set on fire, because he said he had heard the unknown male say she was dead. Assuming the jury had rejected the existence of third parties being present, it is far-fetched to think that the jury would place much reliance on that account. On the other hand, the victim's head injuries do not seem, of themselves, to have been serious so that establishing an intent merely from these was not straightforward. Nevertheless, dead or unconscious, for the jury to have heard that the Applicant burnt her body immediately after he rendered her unconscious, they would have had, in practical terms, an immensely strong case on which to convict of murder if they were not to speculate beyond the parameters of the evidence.

40. However, this was not of course the only option left to the jury. In looking at the second option, from the Applicant's admissions against interest taken at their highest, there is no doubt that the jury could conclude he had physically attacked the victim on two separate occasions. The second occasion was just before she was rendered unconscious. The difficulty, from the jury's point of view, lay with what happened thereafter. It would have been for them to determine whether or not they were sure the Applicant was party to a joint enterprise to burn the victim, as opposed to her handbag on its own. In the first interview, he had admitted talking about burning the victim, but he did not admit doing anything about it. In the later interview, he had admitted helping the others to collect debris for a fire, but what he then added did not amount to an unambiguous admission that he had done so knowing that it was to burn the victim as opposed to her handbag.

41. With these matters in mind, the jury obviously, and first of all, had to decide what actually happened in the events leading up to the killing. Counsel in the trial do not appear to have attempted to analyse the accounts given by the Applicant any more than the trial judge who, without comment, merely recited to the jury all the salient parts of the interviews. There was a lot of material to be considered. As we have already said, if the Applicant had had no part to play jointly with the others in the burning of the victim's body which had caused her death, he was entitled to be acquitted of murder and manslaughter.

42. Putting it another way, being a party to the burning of the victim was the act which it was necessary for the prosecution to prove in order to render the Applicant guilty of homicide. It was important, therefore, in the special circumstances of this case, for the judge to have directed the jury to this effect. No such direction was given.

43. We turn next to the mental element. Whilst the jury had been given a technically correct direction as to the intention the prosecution had to establish for the crime to amount to murder, we agree with Mr. Poll that this was a case where that direction also needed to be specifically tailored to the circumstances because the victim had died from burns rather than the Applicant's physical assaults upon her. The jury, therefore, had to be directed that even if:

(a) the Applicant had joined in the attack on her which had rendered her unconscious, and

(b) he had intended at that time to cause her at least grievous bodily harm, and

(c) he had subsequently played a part in the burning of her body,

that did not necessarily make him guilty of her murder if he believed that she was already dead when he participated in the burning of her body. If this was or might have been the case, he could only have been convicted of her murder if his behaviour in attacking her and in participating in the burning of her body could be regarded as a single and uninterrupted series of acts designed to cause her death or grievous bodily harm. If that was so, then it did not matter whether he believed the victim to be dead or alive when he participated in burning her body. See: Church (above) following Meli (Thabo) (above). The judge did not give such a direction nor did he direct the jury that, in such circumstances, if the intent for murder was not established, manslaughter was the proper verdict.

44. This leads us to the conclusion that if proper directions had been given to the jury on the facts constituting the actus reus, we cannot discount the possibility that the jury might have acquitted the Applicant of both murder and manslaughter, on the footing that they could not be sure that he had played any part in the burning of Ah May's body.

45. Alternatively, if a proper direction along the lines which are suggested in Church had been given to the jury, it is possible as we have already said that the jury would have acquitted the Applicant of murder but convicted him of manslaughter. This would be on the basis (as provided for in Church) that, if the Applicant had participated in the burning of the victim's body, he had participated in the unlawful act which caused her death, i.e. the supposed destruction of a human body.

46. For these reasons, this is not a case in which the proviso can be applied. It cannot be said that the jury would inevitably have convicted the Applicant of murder if proper directions had been given to them.

47. Finally, if the failure to give a direction along the lines of Church had been the only problem with the summing up, it may have been appropriate to substitute a verdict of manslaughter. However, the failure to give a proper direction on the facts constituting the actus reus means that it is not possible to take that course as the jury might have acquitted altogether.

48. Accordingly, for the reasons we have given, we shall give leave and, treating the hearing as the appeal, we allow the appeal. The conviction is quashed and the sentence will be set aside. Mr. Poll has, it seems to us, accepted that a re-trial should take place and, subject to any submissions he may wish to make, we order that the Applicant remains in custody pending re-trial on a fresh indictment for murder.