HKSAR v. YEUNG KA YEE AND OTHERS

CACC 107/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 107 OF 2001

(ON APPEAL FROM HCCC 69 OF 2000)

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J U D G M E N T

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

Introduction

1. On 9 March 2001, the Applicants (D1, D2 and D3 respectively) were all convicted of the murder of O Tan, Connie, (the deceased) at Cheung Chau. The murder was alleged to have taken place on or about 21 October 1999. These convictions followed a trial before V. Bokhary J and a jury and resulted in mandatory life sentences being imposed on each of them.

2. The Applicants sought leave to appeal against conviction. In D1 and D3's cases, they had each originally made an application in relation to sentence but in the light of the recent judgment in Lau Cheong and Anor v HKSAR [2002] 2 HKLRD 612, those applications were not pursued and they were dismissed.

The prosecution's case

3. The deceased was a research assistant in the Department of Community Medicine at the University of Hong Kong. She was single, in her mid-thirties and had apparently trained as a doctor in the Mainland. She used the internet to discuss various topics with other users through message boards known as 'chat rooms'. In the course of time, she met some of the people with whom she had communicated. On these occasions, assumed names would be utilised but there were two particular friends who came to know the deceased's real name and mobile telephone number. One in particular, Chan Kin-tong (PW6), became an intimate friend of the deceased. He introduced D1 to the deceased in about September 1999.

4. Not long after this meeting, when the deceased met PW6 and D1 again, she made known that she was looking for part-time research assistants and gave D1 her mobile telephone number.

5. D1, aged 23, had employment as an accounts clerk on a monthly salary of $9,400. She knew D2, aged 29, with whom she had formed a friendship since meeting him in a discotheque in 1998. At all material times, D2 was unemployed and in receipt of $7,100 each month in public assistance. He was a divorcee and lived in a flat in Tuen Mun with his four-year-old daughter. D1 often visited D2 to play with his daughter and to help look after her. She also lent money to D2 which he was unable to repay.

6. D3, aged 22, worked in a convenience store near to D2's home. D2 sometimes visited the store. In due course, D3 began to socialise with D2. D3 also met D1 in the store and eventually D1 and D3 became friends.

7. The prosecution's case was that on 21 October 1999, during the evening, the deceased was lured to Cheung Chau by D2 where, prior to this, D3, in D1's company, had rented a self-contained holiday flat in 'Bela Vista Villa'. The Applicants had agreed between themselves to rob the deceased. As D2 approached the villa with the deceased, D1 and D3 hid inside waiting for them to arrive. As soon as the deceased was inside, D1 and D3, wearing toy masks, grabbed her and pushed her onto the bed. When the deceased struggled, D2 gave assistance in restraining her.

8. At one stage, the deceased's mouth and nose were smothered with a cloth soaked in paint thinner. When this made her struggle less vigorously, her legs and arms were tied with nylon string. In the course of the struggle, D1's finger was bitten by the deceased.

9. Over the course of the next few hours, D1 and D3 kept the deceased subdued. At one stage, tape was used to cover her eyes and mouth. Her credit cards, meanwhile, were taken from her handbag and PIN numbers were looked for in a telephone book and other papers which had been in her possession. D2 left the flat a number of times to attempt to draw money from ATMs on Cheung Chau. He met with success only once, when he drew out $6,200.

10. By the stage of D2's last return from an ATM, as D3 later admitted to police, she had begun to fear that the deceased could trace them. D2 made a similar confession to police later, saying that he believed D1 had been recognised by the deceased. D1 later told police that she was very scared when the deceased woke up and kept yelling.

11. It seems, therefore, that for one reason or another, after the deceased had been kept a prisoner for some hours, a joint decision to kill her was reached. The deceased was held down by two of the Applicants while the third one in their group pressed a pillow over her face and sat on the pillow to ensure that she suffocated.

12. The Applicants later disposed of the body by taking it to a small beach nearby and hiding it under a discarded mattress in a hollow near a disused incinerator.

13. The Applicants took the first ferry away from Cheung Chau on 22 October 1999.

14. Thereafter, it seems that D1 and D2 used the deceased's credit cards to obtain goods fraudulently. Later, D2 checked on the positioning of the corpse by returning to Cheung Chau on 29 October 1999 with D1 and D3.

15. They went to the place on the beach where the deceased's body was hidden and together they tried to hide it better than before. However, police were watching and soon afterwards the Applicants were intercepted. They were taken to the rooftop of the same villa where the murder had been committed eight days earlier. This was allegedly in order to avoid the attention of the media until such time as the Applicants could be taken by boat to police stations for interview.

16. The interviews which followed formed an important part of the prosecution's case. In brief, all the Applicants confessed to playing a role in the murder.

17. D1 blamed D2 for taking the major role in killing the deceased. She said that he had brought string with which to tie the deceased, that it was D2 who used the towel soaked in thinner to subdue the deceased and that D2 covered the deceased's face with a pillow. D1 admitted, however, that she and D3 had held the deceased down as she struggled. At one stage in these events she was bitten on the finger by the deceased.

18. D2 blamed D1 for making the decision to kill the deceased. He also said that D1 put the pillow on the deceased's face and sat on the pillow. D2 said that while this happened, he pressed a leg of the deceased and D3 pressed her hands until, after 20 minutes, there was no further movement. They then carried the body to the beach.

19. D3's account was that it was D1 who applied the thinner and that it was also D1 who sat on a pillow which had been placed over the deceased's face after the decision had been reached between all of them to suffocate the deceased. D3 said she pressed on the deceased's hands and sat over her thigh.

20. The prosecution called Detective Senior Inspector Wong Kwok-kit (PW39) who was the officer in charge of the police team who took over the murder enquiry soon after the arrest of the Applicants. He was later cross-examined by counsel for D1 about an interview (not under caution and not relied upon by the prosecution) which he had conducted with D1 on 3 November 1999. This interview had been at D1's request and, in this, D1 again blamed D2 for smothering the deceased with a pillow but made no mention of what she or D3 had done at that time. However, he said that D1 referred to D2 as having "changed the role between herself and himself in (his) video interview" when, on 2 November 1999, she made an appointment on the telephone to see PW39.

Defence case

21. It was not disputed that the three Applicants had reached an agreement to rob the deceased in Cheung Chau. All the Applicants gave evidence at trial to that effect, but each of them denied participation in the killing. D1 and D3 blamed D2 for killing the deceased without assistance from them. D2 said that the killing had occurred in his absence and that D1 had taken responsibility for it.

22. D1 testified that the idea of robbing the deceased came from D2 so that the debt he owed D1 could be repaid. Equipment was purchased by D2 for the purpose. D1 described how, in a chaotic struggle with the deceased at the rented flat, she unsuccessfully attempted to use a towel, which had been soaked with thinner, on the deceased and how she was bitten on the finger in the process. D1 said that D2 then made the deceased take a solution containing sleeping pills which made her sleep.

23. D1 went on to describe how, at a time when she was sitting at a table away from the deceased looking for a PIN number in the deceased's telephone book, she noticed D2 using a pillow to suffocate the deceased. Neither she nor D3 took any part in the killing. She then helped in the disposal of the body. D1 said she was also involved with D2 in the later fraudulent use of the deceased's credit cards to obtain property. She returned to Cheung Chau and was arrested after she and her co-defendants had attempted to make a better job of hiding the corpse from view.

24. D1 explained that the difference between this account and the version she had given to the police, where she had admitted participation in the killing, was because police conduct had made her too scared to deny having taken an active part.

25. D2 said in evidence that he had gone along with D1's plan to rob the deceased. He bought some thinner in furtherance of this purpose whilst in D1's company. He described a chaotic struggle with the deceased whilst she was being subdued and how he made four subsequent visits to an ATM with the deceased's credit cards. He expressed concern about how D1 and D3 were treating the deceased while he was absent. He said that D1 eventually told him that she needed to kill the deceased because she had been recognised by her. Whilst he did not believe that D1 would kill the deceased, he found out from D1 that she had suffocated the deceased with a pillow whilst he had been in the toilet.

26. Amongst his explanations for the difference in his account to the police when compared to his testimony in court, D2 said that he had been rehearsed as to what he should say and had been told that he would only be charged with manslaughter.

27. D3's testimony was to the effect that it was D2 who suffocated the deceased with a pillow having received no assistance from D1 or D3.

28. D3 said that her confession to the police to participation in the murder was because she had been shown D2's video interview and she wanted to protect D2 by giving a similar account to the one he had given.

Grounds of appeal

(1) Balance of the summing up

29. Five grounds of appeal were advanced by Mr John Haynes on D1's behalf. Some of these overlapped with the grounds which were put before us on behalf of D2 and D3 by Mr McGuinniety and Mr Mullick respectively.

30. In the first of Mr Haynes' grounds, he contended that the summing up was "unbalanced" as it favoured the prosecution by placing emphasis on aspects of their case against D1 when no similar emphasis was given to important parts of D1's defence. A number of factual matters which had arisen in the trial were paraded for our consideration as examples of defence topics which the judge had not invited the jury to consider. These related to peripheral issues which we do not need to set out but which, if Mr Haynes, who also represented D1 in the court below, considered them important to his case, would almost certainly have dealt with in his speech. They were all topics which were plainly before the jury as background matters and none of them required specific reference by the judge.

31. There was, in this context, an additional complaint that repeated references to D1's confessions as being "crucial" gave this aspect of the evidence undue emphasis. In this regard, Mr McGuinniety made a similar complaint, submitting that when the judge returned, towards the end of her summing up, to deal with what she referred to as the "crucial admissions" made by D2, unfairness was caused to D2 because there were no counter-balancing remarks which reminded the jury about the evidence which the defence regarded as crucial.

32. We were not persuaded by the argument that the judge's references to "crucial admissions" caused any prejudice to anyone. The judge had specifically made it plain that this expression meant "crucial for the prosecution's case against the accused who made those admissions". Furthermore, the jury were almost immediately afterwards reminded that if suffocation was the cause of death, the jury could only convict a defendant if they were sure that a defendant "suffocated the deceased or took part in a joint enterprise of suffocating her". The jury were well aware, from an earlier detailed analysis of each defendant's case, that all the defendants had gone back on their alleged confessions by denying any active participation in killing the deceased.

33. Mr Haynes went on to submit that the judge had been unfair to D1 by making "numerous judicial references to D1 having a possible motive to kill because the deceased had recognised her". The only reference by the judge in her summing up which directly affected D1's case on this topic was in these terms:

"Members of the jury, there is no evidence on which you can find that a murder had been planned from the start. The question is not what the 1st accused or anybody else expected in the very beginning. The question on murder as charged is whether the 1st accused, whom the deceased knew, intended to kill her once it appeared that getting money could not be done by stealth and that Connie would struggle and yell and would be able to identify the 1st accused unless killed." (Appeal bundle p. 55)

34. Plainly, the judge was not using a co-defendant's statement as the basis for this comment. She had repeatedly made it clear that such material could not be used as evidence against a co-defendant. There was, however, ample evidence in the trial given by the Applicants themselves that recognition was a matter of concern. The judge's comment reminded the jury that D1 was known to the deceased and that a prolonged struggle, when stealth had failed, might lead the deceased to realise her identity. The use of masks by D1 and D3 showed that they were concerned not to reveal their identity. This also gave some indication that originally there had been no plan to kill the deceased. The question for the jury was whether a joint plan, limited to robbery, altered for one reason or another and became a joint agreement to kill.

35. Finally, under this ground, Mr Haynes argued that the judge had unfairly summarised the effect of his cross-examination of PW39 regarding the informal interview PW39 had conducted with D1, at her request, on 3 November 1999. Mr Haynes, in his fifth ground of appeal, also complained that the judge had declined to correct what he alleged was the misdirection on this issue.

36. The judge had directed the jury in these terms:

"As to the conversations between the 1st accused and Inspector Wong (PW39) on 3 November 1999, the 1st accused also said that she told Inspector Wong everything which she now says in this court. As to whether that is entirely accurate, you are entitled, if you see fit, to bear the following in mind. It was put to Inspector Wong by Mr Haynes for the 1st accused that the 1st accused had said to Inspector Wong that from the 2nd accused's video-recorded interview shown to her, she could see that the 2nd accused had changed their roles so that the 2nd accused became the 1st accused. Inspector Wong agreed that the 1st accused had said this to him.

You may think - it is a matter for you - that if the 2nd accused's role was the one which he had attributed to her in his interview, while her role was the one which he had attributed to himself in his interview, then the position would be as follows. He, the 2nd accused, pressed the pillow against the deceased's face while she, i.e. the 1st accused, helped to hold down the deceased as that was being done.

If so, and if that is the effect of what the 1st accused told Inspector Wong, then there is that difference between what the 1st accused told Inspector Wong and what she says in court." (Appeal bundle p. 78)

37. D1 had, of course, denied taking any part in the killing when she testified in court. Mr Haynes submitted that the main damage done by this summary was that, having used the evidence of PW39 in a way which he had believed was to D1's advantage, it was now being used to show a further confession by D1 to some participation in the killing. It was his belief that his cross-examination of PW39 had been designed to establish not that D1 was saying there had been a change of "roles" but that D2 had changed "his role", as the one who had suffocated the deceased with the pillow, by falsely accusing D1 of doing this instead.

38. We have been supplied with the transcript of PW39's evidence. We can see from this that the judge's summary was entirely understandable because Mr Haynes' questions to that witness, and the replies he received, were in these terms:

"Q.	And she (D1) told you straightaway that after viewing D2's video, she
	could see that D2 had changed the role between himself, D2 and D1, so as
	to blame her.
A.	I agree.
Q.	So you must have realized that you were - although a little bit later on
	- you were now receiving the reaction of D1 to D2's video, which she had
	been invited to watch.
A.	She did get in touch with me, but then I don't know whether it was because
	- well, I suppose I can agree, yes, I agree.
Q.	I mean, she began the conversation by saying that she realised from the
	video that Cheng Man-kit (D2) had changed the roles between (him) and her.
A.	Correct." (Appeal bundle p. 1667)

39. This extract of evidence was read back to the jury after Mr Haynes had sought a correction from the judge as to the earlier direction to which we have already referred. In that direction, the judge had left the jury to determine the effect of what D1 had said to PW39. Furthermore, as Mr Gavin Shiu submitted on behalf of the Respondent in a written argument which provided us with immense assistance, the information given by D1 on 3 November 1999 was relatively brief. It amounted primarily to a complaint that D2 was blaming her for something he had done. D1 had made no attempt to go into any detail.

40. Following an unopposed Notice of Motion to adduce the statement of PW39 as additional evidence under section 83V(1)(a) of the Criminal Procedure Ordinance, Cap. 221, we were satisfied that its contents, which Mr Haynes had been anxious to adduce at trial, had been properly conveyed to the jury not only by himself but by the judge also, in its overall effect. This statement, which was physically never given to the jury, dealt first with the conversation on the telephone between D1 and PW39. The relevant text reads:

"At 2300 hours on 2 November 1999, whilst I was off duty at home, the Duty Officer of Sau Mau Ping Police Station informed me by telephone that Yeung Ka-yee (D1) wanted to speak to me. Yeung was put on the phone and told me that Cheng Man-kit (D2) had changed the role between herself and himself in his video interview."

41. It will be readily observed from this extract that Mr Haynes had faithfully led the information he had taken from PW39's statement in the questions he asked that witness in cross-examination.

42. If any ambiguity existed as to what D1 was really trying to say to PW39, it seems to us to have been a matter, taken in its overall context, of small significance. The jury were reminded of the issue and left to determine for themselves what had been the effect of D1's spoken words to PW39. There was no error on the judge's part and it follows that no amendment to the summing up was required.

43. The issues raised in this ground had no substance.

(2) Admissibility of the confession statements

44. In his second ground of appeal, Mr Haynes contended that D1's video-recorded interviews had been wrongly admitted into evidence having regard to the "illegal and oppressive treatment after her arrest" to which she had been subjected. Similarly, Mr Mullick submitted that D3's interviews had been wrongly admitted, albeit for wholly different reasons to those advanced by Mr Haynes. However, at the conclusion of proceedings on 16 October 2002, Mr Haynes indicated that he wished to adopt the arguments which Mr Mullick had put forward.

45. Taking Mr Haynes' submission first, it was agreed at trial that all the Applicants, following their arrest, were initially taken to the rooftop of the villa where the murder had occurred. It was alleged by D1 that she was subjected to ill-treatment there which included being slapped on the head. This issue was amongst those which were dealt with in voire dires relating to the admissibility of all the Applicants' confession statements which occupied no less than an entire month in court.

46. We are not invited to go behind the judge's ruling that the statements made by D1 were voluntary and admissible on any other basis than an admitted breach of section 51 of the Police Force Ordinance, Cap 232, and a failure to ask D1 in her first video-recorded interview whether she would like to have a lawyer present.

47. Section 51 of the Police Force Ordinance provides that:

"Every person taken into custody by a police officer with or without a warrant, except a person detained for the mere purpose of taking his name and residence or detained under section 54, shall be forthwith delivered into the custody of the officer in charge of a police station or a police officer authorized in that behalf by the Commissioner."

48. As we said earlier, the explanation given by police for not taking the Applicants to a police station forthwith but taking them instead to the rooftop was so that the media's attention could be avoided. Although the judge gave no reasons for finding D1's answers in her interviews to have been given voluntarily when ruling them to be admissible, and she was, of course, under no obligation to do so, her approach to this aspect of the evidence is to be found in the summing up. She said that while there had not been compliance with section 51, the mere fact that the Applicants had been taken to the rooftop in non-compliance with the section would not render their out-of-court statements unreliable. The judge then gave a direction as to the approach the jury should take if they found that any of the police had acted in any of the other improper ways which had been alleged against them. In short, if such misbehaviour may have occurred, the statements made under such circumstances should not be relied upon.

49. We do not need to decide what 'forthwith' in section 51 precisely means. It cannot mean 'immediately' when there are very good reasons for a delay. Reasons were provided in the present case and although the judge, perfectly fairly, decided to treat the situation which had arisen as a breach of section 51, we can see no reason to criticise her decision not, on this account, to exclude the interview which followed.

50. Dealing with the argument concerning the failure to remind D1 of her right to take legal advice at the beginning of her first video-recorded interview, this was a matter, amongst others, which was canvassed during the voire dire relating to its admissibility. In this context, we observe that at the start of this interview, D1 confirmed that she had signed a copy of the 'Notice to Persons in Custody' which briefly set out her legal rights, including her right to "communicate in writing or in person with a solicitor or barrister".

51. It seems to us that D1 had been given the opportunity to have a lawyer if she wished to do so and that she made no request for one. There is no legal requirement that a suspect should be reminded again of this right at the start of an interview although this commendable practice is often adopted. In the present case, the failure to remind D1 once more of her right to have a lawyer provided no reason to exclude D1's confession statement on the ground that it was involuntary.

52. Mr Mullick's argument on D3's behalf amounted to an attempt to turn a simple issue of fact into a point of constitutional significance. He submitted that the prosecution had failed to prove that D3's statements had been made voluntarily because she had been "deliberately deprived of her right to have the presence and advice of a lawyer before and during the time she was interviewed by the investigating police officers". By way of alternative, Mr Mullick submitted that the police had given a misleading response to D3 which had effectively deprived her of the services of a lawyer.

53. Mr Mullick sought to criticise the wording of the 'Notice to Persons in Custody' which informs such persons of their legal rights. He suggested that its shortcomings effectively breached Article 35 of the Basic Law which provides, amongst other things, for the right of residents of Hong Kong to confidential legal advice for the "timely protection of their lawful rights and interests".

54. We do not consider this is a matter which properly arises in this application. The 'Notice to Persons in Custody' is a convenient and easily understood summary of the rights given to persons who are in custody which makes it abundantly clear, in the way which is relevant to this ground, that a person has a 'right' to communicate with a lawyer. D3 had signed on three occasions for the receipt of such notices. Furthermore, at the start of both of D3's video-recorded interviews, she was specifically asked if she wished to retain a lawyer and she stated that she did not.

55. Dealing with Mr Mullick's alternative point that the police had misled D3 by one of their responses which had the effect of depriving her of a lawyer's services, this arose because, at the start of the first of D3's interviews, there was the following exchange between D3 and the police officer who interviewed her:

"(Officer):	Mm, (noise) alright, now, I've given you a Notice to Persons In
	Custody and you said to me that there was no need to retain a lawyer
	or request the presence of any for the taking of this video
	interview. I now ask you once more. Do you want to retain a lawyer?
(D3):	Retaining a lawyer is ....
(Officer):	Er, do (you) want to retain a lawyer for the taking of this video
	interview with you(?)
(D3):	He will just listen?
(Officer):	No, to accompany you in the process, need it or not?
(D3):	Basically, it's of no use.
(Officer):	It's your own business. Need it or not, just say so.
(D3):	No need." (Appeal bundle pp. 1005-6)

56. It was submitted that the reply from D3 which took the form of a question: "He will just listen?" received a misleading response from the officer when he said: "No, to accompany you in the process ....."

57. We disagree with this contention. Nothing was said which might, as Mr Mullick suggested, lead anyone to believe that a lawyer would not be allowed to advise as opposed merely to sit and listen as if a mere spectator. D3 was at no stage deprived, as Mr Shiu was right to emphasise, either deliberately or inadvertently of the services of a lawyer prior to her video-recorded interviews.

58. All the matters raised under these grounds were without merit.

(3) Absence of a direction on 'jealousy'

59. Mr Haynes' third ground of appeal on D1's behalf complained that the judge had failed to give any direction to the jury "that there was no evidence to support the contention of D2's counsel that D1 was jealous of the (deceased) and had murdered her for that reason". Mr Haynes added that this was never put to D1 while she was giving evidence with the result that this had effectively deprived her of the opportunity of dealing with this topic.

60. All that we need to say in this respect is that if this issue had arisen ex improviso Mr Haynes would have been at liberty to apply to recall D1 if this was as important as he made it out to be. It appears to us, however, that this was unlikely to have been something which had arisen ex improviso. The topic had arisen because of a possible and highly obscure implication of a jealous motive on D1's part for killing the deceased (because of the 'courtship' between PW6 and the deceased) which is to be found in a letter, Exhibit D2(2) and (2A), written by D2 to D1 while they were both in custody charged with this murder. Mr Haynes had made a tactical decision to utilise the letter as a means of showing how domineering and manipulative D2 could be. In doing so, he risked the somewhat unlikely and remote possibility that a motive of jealousy on D1's part would be exposed. As such, he could have covered this topic in D1's examination-in-chief. He, understandably, chose not to do so. In the event, the prosecution attached no importance to any possible jealous motive. In any event, jealousy as a motive would have contradicted the allegation they were actually making of a joint decision to kill the deceased to prevent her from being able to identify any of the culprits who had robbed her. The judge, in such circumstances, was right to have left the topic well alone.

61. This ground was without merit and fails.

(4) Direction on cause of death

62. The fourth ground advanced by Mr Haynes for D1 was also put forward by Mr McGuinniety and Mr Mullick. In effect, they alleged that the judge had been unfair to direct the jury that it might well be that they would "not have any difficulty" in concluding that the cause of death was suffocation. Mr McGuinniety described this as "overstepping the mark" of what was permissible when directing the jury on a factual issue which they had to decide.

63. The judge's direction, in its full context, was as follows:

"What the cause of the deceased's death was is a matter for you and you alone as the sole judges of facts. But now that you have received all the evidence, including what each of the three accused have said in the witness-box, it may well be, it is a matter for you, that you will not have any difficulty in coming to the sure conclusion that the cause of the deceased's death was suffocation.

If suffocation was the cause of the deceased's death, you are entitled to convict of murder or manslaughter all three accused or any two of them or any one of them whom you are sure suffocated the deceased or took part in a joint enterprise of suffocating her." (Appeal bundle p. 130)

64. This ground of appeal was wholly unrealistic. The judge had gone to considerable lengths to remind the jury earlier in her summing up as to other possible causes of death which the pathologist was unable to rule out in view of the advanced state of decomposition of the deceased's body. In the result, he had been unable to specify the cause of death.

65. The jury had also heard evidence from a forensic chemist, Dr Vanessa Choi, that traces of chloroform and N-Butanol had been found in the deceased's body. These are found in paint thinner amongst other things. At worst, these ingredients could kill.

66. Estazolam, a tranquilliser giving a similar effect to valium, and a herbal substance used in Chinese medicine were also detected in the deceased's body.

67. The judge put all of this evidence into context when giving her directions about murder when she said:

"As I mentioned earlier, the Pathologist, Dr Poon, said that the deceased's body was in an advanced state of decomposition, and that he could not tell from his post-mortem examination what the cause of death had been. But there is in respect of each accused his or her own out-of-court statements. If you are sure in respect of an accused, on his or her out-of-court statements that, whatever substance may or may not have been administered to the deceased earlier, she was still able to put up such resistance to a pillow being pressed against her face that she had to be held down while a pillow was pressed against her face until she became still, and that her unmoving body was then carried away and hidden, then you would be entitled to feel sure, in respect of the case against that accused, that the deceased was killed by being suffocated with a pillow .....

Now supposing the cause of death was not suffocation but the administration of some substance. If so, then none of the accused can be convicted of murder. This is because there is no evidence that the administration of any substance to the deceased was done with intent to kill her or cause her really serious injury. But you could still convict of manslaughter any accused whom you are sure took part in administering such substance to her. You could do so if you are sure that the administration of such substance was something which all sober and reasonable people will inevitably realize must subject the victim to at least the risk of some physical harm resulting therefrom, albeit not serious harm." (Appeal bundle pp. 18-20)

68. The direction which is criticised took into account not only the contents of the video-recorded interviews but the evidence also of all three Applicants at trial. There, a 'cut-throat' defence had been advanced by D1 and D3 who accused D2 of suffocating the deceased with a pillow and by D2 who alleged that D1 had admitted the killing to him and that he had been framed by D1 and D3. Realistically, the jury's task by the end of the trial was to decide if the prosecution had made them sure that each of the Applicants had been a party to a joint enterprise suffocation of the deceased, one with a pillow and the other two holding the deceased down as the pillow was pressed over her face.

69. It is to be observed that the judge did not direct the jury that the prosecution had established suffocation to be the cause of death. Such a direction would not have been proper as this was an issue of fact for the jury to consider and decide. Instead, the judge merely commented, as she was entitled to do, that the jury might not have any difficulty in concluding that death was brought about in that way. There had, after all, been no suggestion from any of the Applicants in their evidence or their interviews that the deceased was already dead when the pillow was pressed down over her face. On the contrary, while the sleeping pills, which it seems the deceased had been forced to take, may have quietened her down, she was seemingly still able to struggle for a time until the suffocation took effect. In any event, if the jury accepted that a pillow was placed over the deceased's face, the inference that the deceased was still alive at that time was overwhelming.

70. The suggestion that the judge had removed from the jury's consideration an important issue in the trial was without foundation.

71. This ground fails.

(5) Failure to permit D2's counsel to cross-examine PW39

72. We can turn finally to two criticisms which Mr McGuinniety made about the judge's rulings in relation to PW39's evidence which he alleged had caused prejudice to D2.

73. Earlier in this judgment we made reference to Detective Senior Inspector Wong (PW39) being requested on the telephone by D1 to be allowed to provide further information to him. This was done after D2 had blamed D1 for the act of suffocation in his video-recorded interview which D1 had been allowed to see.

74. Firstly, Mr McGuinniety submitted that D1's counsel should not have been permitted to cross-examine PW39 for the purposes of showing that D1 had stated it was D2 who had suffocated the deceased when this simply amounted, in the light of D1's earlier video-recorded interview, to the self-serving use of a previous consistent statement.

75. We have to say that this criticism may well be justified as a matter of strict law. Mr Shiu did not seek to argue otherwise. He contended, however, that this had caused no prejudice whatever to D2 whose tactics at trial were to allege collusion between D1 and D3 to frame D2. This, he submitted, would have inevitably led to the introduction of what D1 had told PW39 to support his theory of collusion between D1 and D3. At that time D3 was blaming D1 for the act of suffocation, but by the time of the trial, their stories were the same and they were both blaming D2. Accordingly, Mr McGuinniety on behalf of D2 would eventually have introduced this evidence if Mr Haynes had not done so. Furthermore, as Mr Shiu again pointed out, not only did the judge emphatically direct the jury that out-of-court statements by one defendant could never be evidence against a co-defendant, but D1 had in any event gone on to give evidence from the witness box blaming D2 for the act of suffocation. The words spoken by D1 to PW39 were of little consequence when looked at in this light.

76. We have concluded that no prejudice to D2 eventuated from Mr Haynes' use of D1's statement to PW39 and that if Mr Haynes should not have been permitted to introduce the oral statements of D1 to PW39 himself, the error on the part of the judge in allowing him to do so was in no sense a material one.

77. A further complaint in this context has given us rather more concern. Mr McGuinniety submitted that the judge had fallen into error when she prohibited him at trial from cross-examining PW39 as to what it was that D3 had allegedly told him in an informal interview immediately after he had spoken to D1 on 3 November 1999. Mr McGuinniety contended that by virtue of being prevented from cross-examining PW39 on this subject, he had effectively been stopped from demonstrating a conspiracy between D1 and D3 to frame D2 which would, in turn, have cast a doubt on the credibility of their testimony against D2.

78. In a sense, this was a somewhat hollow complaint because although it was submitted that the judge might well have permitted PW39 to be cross-examined for the purposes Mr McGuinniety had in mind, revealing that on 3 November 1999 D3 had confirmed the reply she had given in her earlier video-recorded interview that it was D1, and not D2, who had suffocated the deceased, there came a time later in the trial when Mr McGuinniety had the opportunity to introduce the relevant contents of PW39's notebook. By this time, D3 had changed her story and had testified that it was D2, not D1, who had suffocated the deceased. The jury was reminded of Mr McGuinniety's cross-examination and its purpose when, in summing up the evidence of the Applicants, the judge said:

"Members of jury, I turn now to the cross-examination of the 3rd accused by Mr Haynes for the 1st accused. You will remember and take into account the whole of that cross-examination. It included the following. The 3rd accused agreed with Mr Haynes that she had been untruthful and was merely confirming the 2nd accused's story when she said in her video-record of interview that the kidnapping was the 1st accused's idea and that the 1st accused had suffocated the deceased.

The cross-examination then turned to what the 3rd accused had said to Inspector Wong (PW39) on 3 November 1999. You will remember her evidence on that. The 3rd accused agreed that she and the 1st accused were not close.

Members of the jury, I turn now to the cross-examination of the 3rd accused by Mr McGuinniety for the 2nd accused. You will remember and take into account the whole of that cross-examination. Principally, it involved Mr McGuinniety cross-examining the 3rd accused with a view to showing, while she denied it, that she had lied to you about having a relationship with and being fond of the 2nd accused; that she had lied against the 1st accused and then later against the 2nd accused, all to save herself; and that she and the 1st accused had concocted a false story blaming the 2nd accused.

You will also remember the cross-examination regarding the conversation between the 3rd accused and Inspector Wong (PW39). Mr McGuinniety put it to the 3rd accused that Inspector Wong had written down that the 3rd accused had told him that the 1st accused was the one who killed the deceased. The 3rd accused said that she did not know why Inspector Wong would write such a thing because she never said that to him. No such out-of-court statement by the 3rd accused would be evidence against the 1st accused. Nor is it admissible for the prosecution's purposes against the 3rd accused herself. But purely in considering the 2nd accused's defence, proceed on the assumption that Inspector Wong did write that down." (Appeal bundle pp. 107-8)

79. However, although the judge had reminded the jury in this passage that PW39 had "written down" D3's words which contained the statement that D1 had killed the deceased, such words were denied by D3 herself when she was cross-examined. It follows, therefore, that when the judge told the jury to proceed on the assumption that PW39 had written down what D3 had said it was not quite the same thing as counsel being permitted to adduce evidence from the officer that what he had written down was in fact said, particularly when counsel for D2 was seeking to establish a contradiction in D3's own testimony.

80. There is, however, a slightly more significant point which arises in this context from the decision of the House of Lords in R v Myers [1998] AC 124 which was brought to our attention by Mr Shiu. The English Court of Appeal had granted a certificate on a point of law which is set out in the headnote at page 125 which reads:

"In a joint trial of two defendants, A and B, is an out of court confession by A which exculpates B but which is ruled, or is conceded to be, inadmissible as evidence for the Crown nevertheless admissible at the instigation of B in support of B's defence, or does such a confession in all circumstances offend the rule against hearsay?"

81. This was a murder case in which a taxi driver was stabbed through the heart in the course of being robbed. Myers (a female) and Quartey were arrested soon afterwards. Myers on two separate occasions in conversation made comments to different police officers that incriminated her alone in the murder. After these conversations, Myers made a formal confession broadly along the same lines. An application by the defence for separate trials was rejected. This had been based on the possible prejudice to one or other defendant depending on whether the admissions were or were not admitted. The prosecution relied on the formal confession made by Myers as there had been a breach of practice concerning the other conversations. At trial, Quartey's counsel applied to admit the contents of Myers' other conversations through the relevant police officers. Myers was convicted of murder and Quartey was convicted of manslaughter. Lord Slynn (at p. 136E) concluded that:

".... there is a long line of authority showing that a defendant must be allowed to cross-examine a co-defendant as to a previous inconsistent confession so long as the material is relevant to the defendant's own defence. In my opinion a defendant should also be allowed to put a co-defendant's confession to witnesses to whom the confession was made so long as the confession is relevant to the defendant's defence and so long as it appears that the confession was not obtained in a manner which would have made it inadmissible at the instance of the Crown under section 76(2) of the Act of 1984. There may be doubt as to whether the co-defendant will be called (so that it may not be possible to put the confession to the co-defendant directly) and not to allow the defendant to introduce it by way of cross-examination of prosecution witnesses could lead to great unfairness." (Emphasis added)

82. We agree with Mr Shiu that a 'previous inconsistent confession' in this context, can be taken to refer not only to two confessions made by the same person which are inconsistent with each other but also to a confession which is inconsistent with testimony given by the maker in court. He submitted that the final sentence in the citation (above) was especially pertinent. Lord Slynn had said that the refusal to allow the introduction into evidence of a confession through cross-examination of a witness other than the maker could cause unfairness where the maker did not testify.

83. However, in the present case D3 did testify and was cross-examined at length about her alleged collusion with D1 and on what she may or may not have said to PW39. The importance of this in the present case relates to the possible application of the proviso in section 83 of the Criminal Procedure Ordinance, Cap. 221 to which we shall turn later. What is plain from the passage we have read in Myers is that a defendant is not required to wait until a co-defendant gives evidence to see what emerges. The basis of counsel's application on behalf of D2 to cross-examine D3 was so that he could provide evidence of an approach to PW39 by D1 and D3. As Mr McGuinniety put it to the trial judge:

"It's important for us to establish that here's D3 and D1 getting together; D1 gives her version and lo and behold, along comes D3 and gives a completely different one." (Appeal bundle p. 1616)

84. Although this contained a suggestion of collusion, the burden of Mr McGuinniety's submission appears to have been aimed at demonstrating the repeated exoneration of D2 by D3 when counsel for D2 was trying to emphasise the truth of that account through a source which was independent of D2.

85. In the light of what was said in Myers, we consider that the judge was wrong to have prevented cross-examination of PW39 about his conversation with D3 on 3 November 1999. Having said this, the jury was eventually made aware, through the cross-examination of D3, as to what she had allegedly said to PW39 and they were told that they should assume those words were written down by PW39. Furthermore, D3's evidence was obviously not accepted by the jury. If it had been, she would have been acquitted. It is obvious that the jury convicted the Applicants on the basis of what was stated in their interviews and gave no weight to the statements subsequently made to PW39 or, much more importantly, to their oral testimony. Having regard to the directions on joint enterprise, it was unnecessary for the jury to decide from the various accounts given in their interviews who had actually placed the pillow over the deceased's head because each of the Applicants had confessed to participation in the killing.

86. Accordingly, although we have concluded that a wrong decision was made on a question of law, as we are satisfied for the reasons we have given that no miscarriage of justice has actually occurred in the case of D2, we consider that this is an appropriate case in which to apply the proviso.

Conclusion

87. We shall grant leave to D2 but, applying the proviso and treating the hearing as the appeal, we dismiss his appeal.

88. The applications of D1 and D3 are dismissed.