HKSAR v. HUI CHI WAI AND OTHERS

CACC 78/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 78 OF 1999

(ON APPEAL FROM HCCC 433 OF 1997 & 8 OF 1998)

____________________________________

_______________________________

________________

J U D G M E N T

________________

Hon Stock JA:

1 There are six applicants who apply for leave to appeal against their convictions and sentences. Each was convicted of murder after trial before Wong J, as he then was, and a jury. The trial lasted for several months and concluded in January 1999. There were altogether 13 defendants, including the present applicants. It will be convenient to refer to them by the numbered designations which were used at trial.

INDICTMENT, PLEAS AND VERDICTS

2 There were three counts on the re-amended indictment:

Count 1 charged all 13 defendants with murder. The particulars alleged were that on or about 14 May 1997, at room 1508, Block 39, Sau Mau Ping Estate, Kowloon, together with a man named Shek Tsz-kin, they murdered a youth called Luk Chi-wai (to whom we shall refer as "Ah Kai").

Count 2 was levelled against D2 to D5 inclusive, and D7 to D13 inclusive, and asserted that each had unlawfully and maliciously caused Ah Kai grievous bodily harm with intent to cause him grievous bodily harm, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212; and

Count 3 alleged that D2 to D5, and D8 and D10, had on or about 15 May 1997, with Shek and with D1 and D6, prevented the lawful burial of the corpse of the deceased.

3 Of the original 13 defendants, the six applicants before us are the only ones who were convicted by the jury of murder (Count 1). D1 and D6 had pleaded guilty to manslaughter, but their pleas were not accepted by the prosecution. Apparently, however, as a result of their plea to manslaughter, D1 and D6 were not included on the indictment in relation to the second count.

4 All the other defendants were acquitted of murder and of manslaughter, save for D13 who was acquitted of murder but convicted of manslaughter. Of those who were acquitted altogether in relation to Count 1, each was convicted on Count 2, either of causing grievous bodily harm (D2 and D9), or of assault occasioning actual bodily harm (D5, D7, D11 and D12).

5 In relation to Count 3, D1, D3, D6 and D8 pleaded guilty, and D3 and D10 were found guilty by the jury. The pleas of D1 and D6 had been tendered upon an earlier form of the indictment.

THESE APPLICATIONS

6 The applications for leave to appeal against conviction are directed only at the convictions for the offence of murder (Count 1).

7 The applicants were all teenagers at the date of the killing of Ah Kai. D1 was aged 17 years, almost 18; D3 was aged 17 years; D4, 17 years; D6, 16 years; D8, the youngest, was aged 14 years; and D10 was aged 17.

THE PROSECUTION CASE

8 The prosecution case was that over a period of about two and a half to three hours, all these applicants took part in a prolonged and almost incessant attack upon Ah Kai, who was aged 16 years, in room 1508 of Sau Mau Ping Estate; that in the course of that attack Ah Kai was subjected to a constant barrage of kicks, punches, and blows with poles, wooden sticks, folding stools and, finally, water pipes and a plastic stick; and that in due course and in the presence of these applicants, or most of them, he died. It was further alleged that there then followed a course of action by which they attempted to erase traces of their crime, that they set the body alight, put what was left in bags, and disposed of what remained in a rubbish container. The body was never discovered. All that was left, which was discovered, were bone fragments. Despite this ghastly course of events, which was described by the main prosecution witness, Shek, and whose description, subject to some detail, was common ground, the prosecution case was not that the applicants intended to kill Ah Kai, but that they intended to cause him grievous bodily harm, and did so, and that in consequence he died. Its case was that of a joint enterprise of such a nature that it mattered not who struck particular blows or with what implement, since all applicants, it was contended, were present, assisting by their presence and by their conduct in the escapade of terrible violence which they visited upon a solitary youth who offered no resistance, and who ultimately perished in their presence. That this was a cruel and merciless few hours, no one seeks to deny.

9 It is conceded by counsel for the applicants that the summing-up of the judge includes an accurate precis of the evidence of Shek and of the other eye witnesses who gave evidence for the prosecution, and that that evidence largely accords also with a summary of facts which was used in the trial of Shek. Shek had pleaded guilty to manslaughter, a plea accepted by the prosecution, no doubt in consideration of Shek's willingness to give evidence against the other 13 defendants.

THE INCIDENT AND ITS STAGES

10 The evidence of Shek, which, as we say, was by and large not in dispute, save to the extent which we shall indicate when addressing the case of individual applicants, ran broadly as follows.

11 The attack on Ah Kai took place in a room occupied by one Sam Shuk. Sam Shuk was aged over 30 years, but was mentally slow. Although he lived alone in room 1508, that room was used as a meeting place by a group of youngsters who lived in or around the area of Sau Mau Ping Estate. Unfortunately, it appears that Sam Shuk was bullied from time to time by the youngsters, and on 12 May he was beaten about, and Ah Kai then suggested to him that he, Sam, should report the assailants to the police. It was this suggestion that led to the attack on Ah Kai.

12 Shek's evidence was that on the evening of 14 May 1997, he went to Sam Shuk's home, and there he saw a number of the defendants, including D1, D3, D8 and D10. A decision was made to fetch Ah Kai, and to beat him up, and to make fun of him, because he had told Sam to report his own beating to the police. Ah Kai was located, and he agreed to go to Sam's place. The events in Sam's home were prolonged, and it is convenient to present them, as related by Shek, under a number of headings.

The initial beating

13 When Ah Kai came to the flat, he was hit with fists and kicks. In particular, D10 punched and kicked him, and Ah Kai appeared to be in considerable pain, and fell to the ground. D10 placed the legs of a chair over his head so that he, Ah Kai, could not move. Then D10 struck him with a bi-pole, striking him each time Ah Kai responded to a question put to him. This beating is said to have lasted some minutes.

The pounding machine

14 D10 then held Ah Kai upside down by his legs, and swung him round, and announced that he, Ah Kai, was a human pounding machine. D6 and D4 had by now arrived, and D6 took up the invitation and hit Ah Kai and then, whilst Ah Kai was lying on the ground, forcibly fed him with dates.

The girls join in

15 By now D8 had arrived as well as D9 with a youth called Tse Chi-wai. The date feeding had messed the floor, and Ah Kai was made to wipe the floor. D10 told Ah Kai to stand, which he did. There were three girls amongst the defendants at trial. They were D5, D7 and D12. The girls pushed and slapped him, and then started to kick and punch him, and one of them used an umbrella to strike him when he was back on the floor. Others joined in, including D6, D4, D8 and D10. Shek said that Ah Kai appeared to be in agony.

The belt

16 D10 asked D3 for his belt, and used it to strike Ah Kai, but the buckle broke in the striking, and D3 lost, or purported to lose, his temper and blamed Ah Kai for the damage to his belt and, whilst D10 was hitting Ah Kai with the belt on his arms and legs, D3 and a friend of his, and Shek, joined in the assault with punches and kicks.

D1's solo

17 D1 then arrived, and asked the others to stand aside to allow him to hit Ah Kai alone, and he then punched and kicked Ah Kai for several minutes, as a result of which Ah Kai again fell to the ground. The girl with whom D1 had arrived started to cry, and was led away.

The Tsap Kwun incident

18 D3 told Ah Kai to kneel before the statue of Kwan Tai, and to hold a wooden stick above his shoulders with both his hands. D3 then took a wooden stick and struck Ah Kai with it on the back of his neck, causing Ah Kai to stumble forward each time he was hit. Others then joined in the beating, including D1, D3 and D8. D1 and D6 used wooden sticks; the others punched and kicked. The evidence was that bruises could be seen on Ah Kai's bare upper body, and blood coming from his feet.

A poem

19 D10 then said that it was the team's turn to apply "Tsap Kwun". A poem was recited, and whenever the nickname of a person present was recited in the course of the poem, that person was to hit Ah Kai. And that is what happened. Many of those present took his or her turn to deliver two punches each to Ah Kai's chest.

Cigarette butts

20 It was by now about 10.10pm, about one hour after the assaults had begun. It was smoking time, and D10 told Ah Kai to open his mouth; and he asked those who had finished smoking to throw the butts into the open mouth. The butts were still then alight. This suggestion was taken up by three or four of the smokers. By this stage, Ah Kai was kneeling, and there was bruising on his arms, chest and back, and blood coming from his feet. Ah Kai then said that he could no longer withstand what was happening, and one of those present took him to the kitchen to wash his face, but brought him back to the room of the assaults.

'Striking a fish'

21 One person, who was eventually a prosecution witness, a youth named Lau Chi-man, asked D10 to let Ah Kai go, but D10 said that Ah Kai had to apologize to everyone. Ah Kai knelt. He was kicked by D11. D3 then took up a folding stool, and hit Ah Kai with it on his right hip, and Ah Kai cried out in pain. D3 continued to hit him with a stool. We have seen the stools which were recovered from the premises, and they are heavy items. D3 told those present that he was striking a fish and others joined in, punching Ah Kai and kicking him. D1 also hit Ah Kai with a stool; and D10 hit him with a pole. The evidence of Shek was that when he was hit by folding stools, Ah Kai screamed, and he was lying on the ground and that the bruises on his body had "increased tremendously".

The break

22 After the assault with the folding stools, some people left. They were, or included, D3, D2, D11 and D12. This was at about 10.20 or 10.30 p.m. According to Shek's evidence, they said that it was half past ten, and that it was time to go home to cook.

23 After their departure, D6, who must at some stage have left the premises, returned, and he was carrying a two-foot iron pipe which he showed to D10 and to the others. D6 used a saw to cut the pipe in two, and he gave one piece to D1 and the other to D10. Ah Kai was by then washing his face. Lau Chi-man gave him a top to wear and Lau then said that he was leaving with Ah Kai. But D10 stopped them. He told Lau that he should leave, and that is what Lau did, although very angry. Two of the persons in the flat went out for food, and in less than five minutes came back with it. D1 and D10 engraved, or tried to engrave, their names on the pipes which D6 had given to them. D6 went out again.

Beating with the water pipes

24 The assault had stopped for about 15 minutes until it was resumed, this time with the water pipes. D1 and D10 struck Ah Kai several times with these pipes and, when doing so, they were calling out names that Shek knew were to be found in a particular popular comic book. Shek's evidence was that each blow was constituted by lifting up the pipe and hitting down forcefully. Then D6 returned with another metal pipe which Shek himself sawed, and then D1 and D6 and D10 hit Ah Kai with the pipes. Shek's evidence was that D8 was also then hitting Ah Kai. When they were hitting at this point, D6 did not go close; in other words, he hit from a little distance. D8 used a spatula made of iron with a wooden handle to hit Ah Kai. By this stage Ah Kai was again lying on the ground, and the top he had put on was off, and there were lots of injuries to his back.

The end

25 Ah Kai then fainted, and he was dragged to the toilet, and his head splashed with water, and he was brought back, apparently awake. Shek's evidence was that D1, D6, D10 and D8 kept on hitting Ah Kai, telling him, as they did so, the mistakes which he, Ah Kai, had made. Ah Kai fainted again, and he was taken to the toilet once more and then returned, and he was again awake but 'very injured', and then Ah Kai was asked to pay for the cigarettes which had been consumed, but he was less than responsive and people, according to this evidence, became furious. Ah Kai's eyes were closed, and his voice changed. People in the flat were looking for Ah Kai's trousers in which there was thought to be money for the cigarettes. Ah Kai started to speak nonsense, and then D4 fetched a basin with water and pushed Ah Kai's head into the basin, telling him to wake up. Then D4 took a long red plastic pole and struck Ah Kai's head with it three or four times, causing the pole to break. The pole was described by Shek as like the bamboo stick of a broom. Ah Kai was now lying on the ground. D1 slapped Ah Kai many times, and D10 kicked him several times, and then D1 dragged Ah Kai to the toilet, and when he was returned, his body was cold and he was breathing in a very irregular manner, said Ah Shek. "There were injuries on his legs. I saw fresh blood on his wound. There were many bruises all over his body." Ah Kai was laid on a bed. Shek applied tissues to stop the bleeding. Ah Kai was having increasing difficulty with breathing. Attempts were made to resuscitate him. The group, at last, but far too late, became concerned for Ah Kai, or, perhaps, more for themselves, beseeching for his recovery. They felt his heartbeat, but there was, apparently, none. Nor was there any pulse. By 12.30am it was apparent that Ah Kai was dead.

26 In the flat by this time were Sam, who had witnessed the entire episode, Shek, D1, D10, D6 and D8. Others had left. There were a few others outside, including D4. They came back in when they learnt that Ah Kai had died.

27 There was a discussion about what to do, and ultimately it was decided to dispose of the body. For the purpose of this appeal, it is unnecessary to go into that episode.

HUI CHI-WAI: D1

28 In the case of D1, there are two grounds upon which the application for leave to appeal against conviction is put forward:

(1) Leaving Count 2, and inconsistent verdicts

29 Mr Coghlan, who appears for this applicant, asserts that Count 2 ought never to have been left to the jury. The prosecution case was one of murder by joint enterprise and there was, he argues, no room for a verdict, in relation to some defendants of not guilty to murder whilst guilty of some lesser offence of violence, yet in relation to others a verdict of guilty of murder. The result, he contends, was a series of verdicts which were inconsistent on the facts, and he argues that the leaving of Count 2 to the jury served only to confuse.

30 The prosecution, in the course of a discussion before the trial judge, explained the reason behind the decision to proffer Count 2 as an alternative to Count 1. This was a case involving a large number of alleged participants. They are said to have participated in a variety of ways over a prolonged period, and there was evidence to suggest that in the course of those events, some left. Whilst it was indeed the case for the prosecution that all defendants were liable for the death of the victim, it was nonetheless open to the jury to decide that some had assaulted him but that others had caused his death by going beyond the type of violence which was contemplated.

31 Mr Coghlan suggests that this does not wash, because this was not a case of a quick spontaneous attack in which, suddenly, there was, or may have been, a departure from a contemplated form of violence, and he adds that the acquittal of some of the defendants on the charge of murder could not be explained on the basis that they had left early, because some of those who stayed until the end were also acquitted on Count 1. He also argues that the judge contradicted himself on this issue in the summing-up, thereby adding to the confusion to which the jury, must, he says, have been subjected.

32 The trial judge had an unenviable task, in that any case involving so many defendants and covering events extending over several hours, with so many factual twists and turns, as they affected or might affect each separate defendant, is a difficult case to handle and to sum up to a jury. What the trial judge evidently did was to take a course designed for simplicity of approach by the jury and, in doing that, he gave directions which were in fact generous to each defendant. That is most manifest in his direction on the question of intent. Instead of directing the jury that it was also open to them to convict a defendant if that defendant, foreseeing as a real possibility that someone else might use the type of violence used with an intent to cause grievous bodily harm, continued nonetheless to assist, he restricted the circumstances of guilt to proof that a particular defendant under consideration, contemplating that type of violence, assisted, himself intending to cause grievous bodily harm. He correctly directed the jury as to the ingredients of murder, and he then said that the issue was whether each defendant intended to cause serious bodily harm at the time of assault. He said that the case was one of joint enterprise; that before they could convict a defendant they would have to be sure that that defendant committed the offence himself or did an act or acts as part of a joint plan with others to commit it; but that, if one defendant went beyond what had been agreed expressly or impliedly, then the others were not responsible for the consequences of the unauthorized act "for example, if unknown to all the other defendants one defendant produced a gun and shot Ah Kai", the clear implication being that those who did not know about the gun would not be responsible for the consequential death for the deceased. In this context, he pointed out that some defendants said that they never contemplated that weapons such as metal pipes would be used. He went on to explain that before the jury could convict a defendant "who claims this defence" (that is, the defence that one of them went beyond that which he had contemplated), they had to be sure that that defendant had agreed to the others acting as they did, or that he had foreseen them acting in that way, but assisted nonetheless. It was, he directed them, not necessary for the jury to be sure that the defendant under consideration had himself inflicted the fatal injuries, but they had nonetheless to be sure that that defendant intended grievous bodily harm to be inflicted, that that defendant was party to the joint enterprise to inflict that harm, that death resulted from the beating, and that that defendant was present at the beating, although presence of itself was not enough to establish guilt.

33 In the course of the summing-up, there was occasion for the canvassing of a number of issues between counsel and the judge, during which the judge intimated, to no objection by counsel, that he had decided, in relation to Count 2, not to leave to the jury the count as framed, namely, causing grievous bodily harm with intent, but rather to leave to them the lesser alternatives of causing grievous bodily harm, and of assault occasioning actual bodily harm. This, he said, would be "the fire exit for the defendants."

34 Later in the summing-up, he returned to the theme, telling the jury that if they were sure that the defendants were party to a joint enterprise which showed that they all intended to cause grievous bodily harm and as a result of the attack Ah Kai died, then they would each of them be guilty of murder. However, he canvassed then the possibility that they might conclude that some defendants did not have the intention to cause grievous bodily harm, and he said that those who had assaulted the defendant without such an intention but had nonetheless participated in the attack, as a result of which attack the victim had died, would be guilty of manslaughter only. There was, however, yet another possibility, namely, that some defendants were responsible for injuries inflicted as a result of an attack of an entirely different type from that which those particular defendants had foreseen. In such a case, only those whose actions were of that different type could be guilty of murder and the others were guilty, then, of neither murder nor manslaughter.

35 He dealt also with the question of withdrawal, concentrating on the departure from the premises at about 10.30 p.m. of several defendants, including D3, pointing to the suggestion that up to the time of their departure, Ah Kai had not suffered serious injuries and that the subsequent introduction of the water pipes was something quite outside their contemplation. The judge told the jury that if they concluded that some defendants were not party to the joint enterprise to cause serious harm, or had withdrawn before any serious injury was caused, and had themselves no intention to cause such serious injury, then it was open to the jury to convict of causing grievous bodily harm, or of assault occasioning actual bodily harm.

36 This seems to us to be, in the context of the factual matrix of this particular case, a wholly acceptable course for the judge to have taken. In other words, there was nothing untoward or unfair about leaving Count 2 for the jury's consideration in the terms in which it was left. Any other course would have ignored the position, and the defence, of those who had withdrawn at 10.30 p.m., and the evidence that matters thereafter took a more serious turn. Unless it were crystal clear that such assault as had been visited upon Ah Kai before 10.30 p.m. inevitably caused or contributed to his death, then the course adopted by the judge was not only fair, but necessary. Mr Coghlan's complaint, it seems to us, is that some defendants were acquitted of murder, whilst his client was not. Yet there is no inconsistency in the verdicts rendered by this jury. It is quite obvious why it is that the jury convicted his client as well as D4, D6, D8 and D10 of murder, but acquitting the others although convicting them of lesser offences. His client and D4, D6, D8 and D10 had, according to the evidence, each used weapons of some kind in attacking the deceased, and had each been present at, and partaking in, the attack upon the deceased after the 10.30 p.m. "break". The others had either left early, or had never used any stools or pipes or other implements of attack. It is said that this sits ill with the conviction of D3 who left at the break. We shall in due course come to the conviction of D3, but there is, on the face of matters, a sound reason to distinguish D3 from the others who left with him, and that is that he alone, of that number, had used implements, and had used those implements with considerable violence. He had been the architect, according to Shek's evidence, of the "strike the fish" episode, and had beaten Ah Kai with a folding stool.

37 This ground of appeal does not, in the circumstances, withstand proper scrutiny.

(2) The admissibility of Dr Yu's evidence

38 Two expert witnesses were called: Dr Dickens was called on behalf of D1; and Dr Yu, who is a government employed pathologist, was called by the prosecution.

39 It is the case for D1 that the evidence of Dr Yu was inadmissible, and was wrongly admitted by the trial judge. The evidence is said to have been inadmissible because Dr Yu was not in court when evidence was tendered by the main prosecution witness, Shek, whereas Dr Dickens was; that Dr Yu had not read the various witness statements which Dr Dickens had read; and that Dr Yu's opinion was based upon matters or information which were not in evidence.

40 Dr Yu was first called in the course of the prosecution case to attest to his examination of the fragments of bones, accepted to have been those of the deceased. He said that from the bone fragments, the cause of death could not be determined. He said, in the course of cross-examination, that he knew something about the facts of the case from the police. He then added that: "I cannot recall the exact details of what I was told prior to the examination." He accepted that he could not be sure when, where, or how, Ah Kai had met his death. He was not, at that stage of the trial asked any questions about the events of the night of 14 May 1997, or what conclusions he drew from them, as related to him by any source.

41 Dr Dickens was called several days later, on behalf of D1. He had, by then, read the bundle of witness statements, and had listened to most of the evidence of Shek. He referred to the evidence of Shek as to Ah Kai's breathing towards the end of the various assaults; and that the breathing had changed, and had become increasingly difficult and irregular. That suggested to him that Ah Kai had suffered some kind of brain injury. Then he was taken through a few of the separate episodes of assault, for example, the human pounding machine episode, to say whether he thought that this episode or that might have caused brain damage. In the course of this analysis, from a pathologist who had not the advantage of examining the body and who, of course, did not himself witness the assaults, there came an important piece of evidence, upon which most of the applicants heavily rely:

"Q. But having listened to the evidence of SHEK, what do you say about the beating with pipes?

A. Well, they seemed to be directed to parts of the body, but there's no specific reference to blows to the head that I've actually seen with these particular pipes.

Q. Yes. Well, would it follow from that that blows to the body would not cause the sort of symptoms or the brain injury that you describe?

A. Well, they could cause severe bruising and possibly fractures.

Q. Yes.

A. But not necessarily fatal injuries." (tr. p.1641)

42 His conclusions, and the strength of them, are to be viewed against the following facts:

(1) He was not at the scene of the attack.

(2) He was not able to examine the body.

(3) Therefore, he cannot say which parts of the various implements used by the defendants struck Ah Kai nor on what part of the body nor with what force. In so far as he has based his conclusion on the suggested fact that Ah Kai was not struck with pipes on his head, that entire premise is misplaced, because Shek's evidence, as Mr Coghlan himself very properly informed us, was that the victim was indeed struck on the head with the pipes, and was thus struck forcefully and more than once. Shek was cross-examined about this, and was very insistent about it. If the jury accepted that evidence, then the value of Dr Dickens' evidence for D1, who called him, was nil.

(4) In so far as Dr Dickens suggested that death would not necessarily have resulted but for the plastic rod attack at the very end, one notes how much he did not know about that rod. He conceded in cross-examination that he did not know how long the pole was, of what type of plastic it was made, whether damaged before the incident in question, with what force it was used, or which part of the pole hit the deceased; and he accepted, as he was bound to do, that he was speculating. Indeed, the basis upon which his evidence was founded was such that at least one defence counsel asked that his evidence be withdrawn from the jury altogether.

(5) Dr Dickens conceded that it was possible that the damage had been inflicted by blows earlier than the broom stick blows, and that damage might have been caused to internal organs, which in turn could have led to brain damage.

43 His opinion was also that there did not seem to have been any major injuries "documented" before 10.30 p.m. or thereabouts, and he agreed with the proposition put to him by counsel that, if the assault had stopped at that stage, then "apart from a few aches and pains, [Ah Kai] would have been in a position to attend school the following morning without any difficulty." He based this opinion on the evidence he had heard of Ah Kai's condition as described, he said, by Shek. "It seems," he said "that after the various earlier incidents, hittings whatever, he was still in what seemed to be in good shape." This was based on the evidence of what Ah Kai was able to do, apparently, during the break at 10.30 p.m. It was based upon evidence that Ah Kai went to wash his face, and that he conversed with others in the toilet where his face was washed, although Shek had said that he did not hear the text of the conversation and that the conversation had lasted for one or two phrases. Shek's evidence had been that whilst Ah Kai was walking when he emerged from the toilet, he was pulled by Lam who was assisting him. He was able to put on his top. It was this type of evidence that led Dr Dickens to conclude that nothing too serious had happened by 10.30 p.m. It is an opinion which might be thought more than a little surprising in the light of the evidence we have recited, which includes evidence of extensive bruising and bleeding feet, attacks with stools, and evidence from Shek that the assault up to that stage had been "very dreadful", and that Ah Kai was in great pain and distressed. Still, that was Dr Dickens' evidence.

44 He also concluded that the cumulative effect of the combined attack was not the most likely cause of death and, further, that death would not necessarily have occurred but for the assault by D4, at the end of the evening's violence, with the plastic broom handle. It was upon this aspect of his opinion that the prosecution obtained leave to call Dr Yu in rebuttal.

45 Dr Yu had listened to Dr Dickens' evidence. His evidence was limited, but it covered an important point. He said that he did not agree with Dr Dickens' evidence that the cumulative effect of the combined assaults was not the most likely cause of death. His opinion was that the cumulative assaults, in the absence of the broom stick attack, was the most likely cause of death. "This" he said "is because the assaults without the involvement of the plastic broom stick would produce very serious injuries." [tr. p. 566]

46 Mr Coghlan objected. He said that the doctor was commenting on facts which he had not himself heard.

47 Miss Sin for the prosecution answered that Dr Dickens had referred to the various assaults and had himself produced a report, and that Dr Yu's opinion was based on the evidence which he had heard and upon that report, a report which we have seen and which, very broadly, summarises the assaults and their nature. On that basis, the judge admitted the evidence of Dr Yu.

48 In examination in-chief, Dr Yu confirmed that he was proceeding on the hypothesis upon which Dr Dickens had proceeded, and he said:

"My opinion is that the cumulative effect of the combined assault in the absence of the assault with the plastic broomstick was the most likely cause of death. The reasons are as follows. The stool that was involved was a heavy one, although it was a folding stool. Hitting the head with such an object is expected to cause serious injury to the head and perhaps the neck spine as well. Hitting with this stool to the waist may produce serious injuries in the abdominal internal organs. The plastic - I'm sorry, the metal water pipe was a heavy object. Hitting with such an object is expected to cause serious injuries in general. Besides these, there were punches and kicks as well. There was mention of kicking to the head, and this may cause serious injury if the force of the kicking is strong enough. Furthermore, there was mention of swinging the body round by holding the legs of the deceased and pounding the body by holding the legs. These assaults may cause serious injuries to the head, and also the neck spine." (tr. pp. 575-576)

49 As for the state or condition of the accused at 10.30 p.m. he said:

"The observation that he was talking well and appeared quite all right does not necessarily mean that he was not having any serious injury, because the deceased, at that time, might have lapsed into a state of lucid interval, meaning he appeared all right and orientated, but during which period the injuries - he might be suffering from some serious injuries which are taking time to become apparent. An example of such a lucid interval is bleeding inside the skull; for example, subdural haemorrhage which will take time to accumulate and then to become apparent. That is, when the injuries become apparent, the deceased may lapse into unconsciousness. Another example is bleeding in internal organs such as the liver or the spleen which may take time for the bleeding to become manifest." (tr. p. 576)

50 In cross-examination he said that he had information from the inspector about the case as well as from prosecuting counsel.

51 We think that this ground of application is not well founded.

52 "An expert may give his opinion upon facts which are either admitted or proved by himself or other witnesses in his hearing at the trial, or are matters of common knowledge; as well as upon an hypothesis based thereon": Phipson on Evidence, 14th edition, para 32-14.

53 Dr Yu's evidence was put forward on the basis of evidence which he had heard from Dr Dickens. He was clearly prepared, for the purpose of the point which he was seeking to make, to accept that the account upon which Dr Dickens gave his opinion, was accurate. It was therefore unnecessary for Dr Yu to have heard the full account from Shek, for the essence of that account was discernable from Dr Dicken's evidence and from his report. So, for example, in order for the expert to say, as did Dr Yu, that the mere fact that someone was talking well, and appeared well, did not necessarily mean that he did not have serious injury, he hardly needed to hear Shek's evidence. So, too, if he proceeded on the assumption, as he did, and which was the very same assumption upon which Dr Dickens proceeded, - that there had been hitting over a prolonged period, which included kicking, which included hitting with a stool to the waist, as well as punches and kicks, and then the use of pipes, and then death - he was entitled to say that, in his opinion, this sort of catalogue of events was more likely, cumulatively, to have caused death than the use of a plastic broom stick on its own, especially when he had heard Dr Dickens say why he, Dr Dickens, had come to the opposite conclusion. It may be that there was room for counsel to argue that because Dr Dickens had heard the evidence of Shek, more weight should be attached to Dr Dickens' evidence than to that of Dr. Yu. But that is not a matter of admissibility. There was a factual basis, or hypothesis, underlying Dr Yu's evidence, and we are satisfied that it was admissible.

54 We would add only this, that the role played by the expert evidence in this case must, in reality, have been minimal. The facts in the case, as presented to the jury, largely spoke for themselves. Both experts were in large part speculating, and we think it highly likely that this jury was well able to assess for itself whether a plastic stick on its own was likely to have caused death, what the cumulative effect of this orgy of violence was likely to have been, and whether by 10.30 p.m. Ah Kai was or was not "in good shape".

D1: Conclusion

55 These being the only two grounds advanced in support of the application for leave by D1, it follows that his application for leave to appeal against conviction must be dismissed.

MAK KA-HO: D3

The issue

56 There is uncontroverted evidence that D3 left the premises at about 10.30 p.m., that is, at the time of the break to which we have referred. Of significance in this case is the nature of that break; whether there is evidence that D3 could have foreseen, or did foresee, the continuation of the assault; whether he lent himself to that continued assault; and whether, at the time he left the premises, the injuries which had by then been inflicted upon Ah Kai caused or contributed to his death. These are the matters which appear to us to be the truly relevant aspects in the case of D3 rather than, as has been advanced on his behalf by Mr Donald, whether metal pipes are weapons of a significantly different type from folding stools; as to which our answer is that they are not weapons of a significantly different type in this case, and that the judge, in any event, explained that issue clearly enough to the jury.

The respondent's position

57 Mr Bruce SC, for the respondent, points out that there can be no effective withdrawal merely by walking away from an incident, and that there is no evidence upon which it could reasonably be concluded that it was within D3's contemplation that there was to be a cessation of the attack on Ah Kai. In support of that contention, he referred us to R v Becerra, R v Cooper (1976) 62 Cr App R 212. The facts of that case were somewhat different from the facts of this. In that case, B had supplied a weapon for the purpose of a burglary, and it had been contemplated that that weapon might be used if and when necessary in the course of the burglary. B's withdrawal, such as it was, occurred whilst the burglary was actually in progress, and it was held that that withdrawal was not effective to excuse B from that which followed in the course of the ongoing burglary. The difference is that in the present case there is clear evidence, which is not in dispute, that at 10.30 p.m. the assaults had ceased; and that the departure of those who did depart was not an escape from an ongoing escapade, but rather a departure from premises in which an escapade had taken place, but which then appeared to be over.

The evidence

58 Shek accepted, in the course of cross-examination, that when the people were leaving at 10.30 p.m. and before the return of D6 to the flat with the pipes, "the party was somewhat over, with people leaving, moving in and out and about" (tr. p. 1384); and that it was after the pipes were brought in that "things seemed to change and take a turn for the worse." (tr. p. 1528).

59 That was the prosecution evidence. D3's evidence, as summarised by the judge (pp. 50-51) was that after Ah Kai was made to apologise, and did so, Ah Kai went to wash his face. That accords with the prosecution evidence, and there was evidence that at that stage Ah Kai also put on his top, or shirt. It was then that D3 left. He left before the pipes were brought to the flat and he left, not on his own, but with a group of others.

Analysis

60 This 10.30 p.m. break, the break by which it was said that the 'party was over', with Ah Kai washing or being washed, with people leaving, with the importation of the pipes to the room only thereafter, and the actual use of those pipes after a further pause, was a significant event which called for some emphasis, as did the question whether the attacks made before the break led or contributed to the death of the victim. Given, in particular, the suggestion made that Ah Kai was in a fit state to leave the premises, the question of causation of death became a matter of some considerable importance if it were, or might have been, the case, that there were two separate incidents or enterprises; or even if only one incident, if it was, or might have been, the case that D3 clearly withdrew before the second stage.

61 The judge's directions did not suggest two separate enterprises, nor highlight, or mention, the evidence that at 10.30 p.m. "the party was over". Rather, he concentrated on a withdrawal from an ongoing enterprise and, although there was a reference to whether the actions of those who said they withdrew did or did not contribute to the death of Ah Kai, we are of the view that in the case of D3 something more definite and clear cut was necessary. The judge had pointed out that the case of some of the defendants was that the subsequent introduction of pipes was outside their contemplation:

"The subsequent introduction of the use of the metal pipes and the death of Ah Kai were outside the scope of the joint enterprise they had entered into if they had entered into it at all. And what happened subsequently was not within their contemplation or something they could have foreseen." (tr. p. 84)

62 We think, with respect, that the judge should have, but did not sufficiently, make it clear that there was evidence that there was a complete break in the enterprise, so that the true question was whether a second phase was ever contemplated at all and, if so, whether D3 was party to that second or separate assault and, most particularly, whether the injuries inflicted before that break were such as to lead inevitably to the conclusion that they caused or contributed significantly to the death of Ah Kai.

Conclusion

63 We are, in the circumstances, of the view that the conviction of D3 for the offence of murder is not safe, and we accordingly grant D3 leave to appeal against that conviction and, treating the hearing of the application as the hearing of the appeal, we quash his conviction on Count 1.

Count 2

64 That leaves the question whether there should be substituted a conviction in relation to Count 2 and, if so, for what offence. It is perfectly clear from the verdict in the case of D3, and from the verdicts in relation to other defendants, that the jury was satisfied that D3 assaulted Ah Kai with a folding stool. We do not have a transcript of D3's evidence, but we note from the summary of it by the judge that D3 had admitted striking Ah Kai with a stool and kicking him as well, although he denied intending to cause him grievous bodily harm, a denial that, self-evidently, the jury rejected. The evidence of Shek, and of Lau Chi-man, went further against D3. It was that D3 forced the victim to kneel and to apologise, beat him with a stick, was the author of the "strike the fish" episode during which he led the group in striking Ah Kai with a stool. Lau Chi-man said that D3 had struck Ah Kai with sticks on the crown of his head, and that during the folding stool assault, Ah Kai had been kicked on the head. There is the evidence of Shek that, by the time of the break, Ah Kai was extensively bruised and was bleeding from his feet. In our judgment, this constitutes grievous bodily harm and the only reasonable inference that could be drawn from the beating which the jury no doubt found proved against D3, was that he intended thereby to cause such harm.

65 The only question is whether it is open to this court to substitute a section 17 conviction in view of the judge's direction to the jury that he was not leaving Count 2 to them in its original form. He said that he was not leaving that to the jury because "if a defendant caused Ah Kai grievous bodily harm and had an intention to cause him grievous bodily harm and as a result of the act or actions Ah Kai died, that would be murder and it cannot be anything else." This did not however take into account the scenario which we have postulated, namely, that if there was an assault with such intent before the break which may not have contributed to death, a conviction under section 17 of the Offences against the Person Ordinance, under Count 2, was nonetheless open to the jury.

66 That said, the fact is that the judge withdrew this from the jury and that being so, it appears to us inappropriate to substitute a verdict of a section 17 offence. In the circumstances, we feel bound to substitute a verdict of inflicting grievous bodily harm under section 19 of the Offences against the Person Ordinance, although in doing so we are conscious of the fact that it does not accord at all with the gravity of D3's conduct.

NG MING-CHUN: D4

(1) D4's role

67 It is suggested by Ms Moosdeen, on behalf of this applicant, that the judge's directions on joint enterprise were confusing and deficient. We have to say, however, that we have had some difficulty in following what is the suggested error by the judge in the case of D4.

68 It is accepted in the case of D4, as it is with the other applicants, that the summary of the evidence of Shek by the judge was largely accurate. That evidence, as far as D4 was concerned, shows that D4 arrived after the first phase of assaults had commenced. After his arrival, he joined, according to this evidence, an episode of kicking and punching by a group. Ms Moosdeen points out that in the evidence of Shek as to later assaults, D4 is not mentioned as taking part, particularly when it comes to the "strike the fish" incident. There is a suggestion by the witness Lau that D4 took part in swinging the deceased about, but this was denied by this applicant. Nor is it suggested that D4 was taking part when four of the others were at first beating the victim with water pipes. Indeed, there is evidence that D4 went out for a while, with D5, to fetch food and then returned, but there is evidence that later, when pipes were used, D4 assisted by kicking and that thereafter D4 was pushing the deceased's head into a bowl of water and telling him to wake up. Then D4 took out a long plastic pole and struck the deceased on the head three or four times with the pole, so that the pole broke. After he was thus hit, the victim was lying on the floor. D4 gave evidence, and he denied that he had hit the deceased in this way. He admitted that he saw the deceased being hit with pipes and earlier with the stools.

69 Ms Moosdeen suggests that all this merely shows that D4 played a limited role. That is a strange and artificial submission. It is strange because anyone who uses a pole to hit a thoroughly beaten victim over the head several times so that it breaks, and who had earlier joined in a punching and kicking episode, can hardly be said to be playing a limited role. It is artificial in the way it seeks, in the context of a case put on the basis of joint enterprise, to isolate and dissect the exact conduct of each participant. It matters not that D4 did not himself use the pipes, if nonetheless he was shown to have been party to the use of the pipes by his presence and encouragement. If that encouragement was constituted by his presence or, in addition, by his use of other implements, then he does not escape the consequence of the use of the pipes.

(2) D4 and the two stages

70 Counsel asserts, further, that the judge failed to distinguish between the two main episodes or stages of joint enterprise, as illustrated in the case of D3. We fail to see how this assists D4, or indeed any defendant other than D3, because it was shown by the evidence of Shek, and it was the essence of the prosecution case, that D4 joined in at the last stage.

(3) The Uddin principle

71 Then Ms Moosdeen complains that the judge equated wooden stools with metal pipes, and thereby fell foul of the principles articulated in Uddin [1999] 1 Cr App R 319, in which it was said that when deciding whether action by one participant is of a different type from action which others foresaw as part of a contemplated attack, the use of a weapon different in character from that used or contemplated by others, is a factor to be taken into consideration by a jury, and that a jury must be so directed. Quite apart from the fact that the judge specifically asked the jury to consider whether weapons such as sticks and wooden poles were truly different from metal pipes, the submission, when it is applied to the case of D4, is of no practical value whatsoever, for it was the prosecution case against D4 that he not only saw the use of metal pipes, but actually assisted the other defendants when the pipes were being used, and that he himself used a pole on the deceased after he had seen the victim struck with the metal pipes. His case, which was put to the jury, was that he had never used a stick on Ah Kai at all, and took no part in that attack in any way. On any view of the facts, he knew very well that, and was present when, the pipes were being used. The clear question for the jury was whether, when those pipes were used, he joined in the attack by arming himself with a weapon and in assisting that attack. The fact that the jury acquitted those present who had not used implements, but convicted those who had, shows that the jury was sure that this applicant, D4, had armed himself with the pole and had used it in the later stages of the attack.

(4) Causation

72 Then it is said that the judge failed adequately to direct the jury as to how they should approach the evidence of the experts, and failed to remind the jury of the evidence of Dr Dickens that it might have been the case that Ah Kai died when he was placed in a plastic bag. This suggestion arises from cross-examination in which counsel sought to establish that, despite the evidence of Shek that Ah Kai had stopped breathing and that there was no pulse and no pupil movement, it was always possible that there was some life which they did not detect and that, therefore, he could not rule out the possibility that Ah Kai had died when later he was placed into a plastic bag. There is nothing in this point. In a case in which all the defendants who were convicted of murder, were also convicted of, or pleaded guilty to, the prevention of the lawful burial of the deceased by placing him in a bag and then burning and throwing away his body, the fact, if it were a fact, that they wrongly thought him to be dead when they placed him into a bag, would on the facts of this case, and as a matter of law, avail them nothing. That apart, the premise for the complaint is misconceived because in the course of the summing-up, the judge said that:

"Dr Dickens believed that it was most probable that Ah Kai was dead before his body was placed inside the bag," (tr. p. 10)

the implication being that it was always just possible that he had not died by that time.

(5) Directions as to the medical evidence

73 Other criticisms of the judge's direction on the medical evidence, that the jury was not directed how to approach that evidence, and that the judge failed to remind them sufficiently of matters in that evidence in favour of the applicants, are similarly without merit. The medical evidence has taken on far too much importance in the submissions made to us. As we have earlier intimated, the expert evidence was highly speculative and, in our judgment, this jury was well able fairly to assess for itself what type of injuries Ah Kai, must have suffered by the time of, and after, the 10.30 p.m. break, and whether he is likely to have died as a result of a blow from a plastic broom stick or, on the other hand, as a result of a cumulative set of ferocious attacks, including attacks to his head with metal pipes. The weight to be attached to the medical evidence was quite obviously peripheral. The judge adequately summarised the effect of that evidence and in telling the jury that the doctors' evidence was inconclusive as to the cause of death; that the fact that they had not been able to conduct any tests on a body must affect the weight to be attached to their evidence; that the jury was not bound to accept what they said; and that they, the jury, were in this case well able to draw inferences, from what they had heard, about the cause of death, the judge was giving a common sense direction with which this court has no quarrel.

(6) Shek's exaggeration

74 Another ground advanced is that the judge, although drawing the jury's attention to the danger that Shek had something to gain by giving evidence, and that he may have downplayed his role for that reason and exaggerated the role of others, and that his evidence had to be looked at with care and approached with caution, failed nonetheless to direct them how to assess Shek's evidence if they found that he had exaggerated. The point requires no analysis. It is the type of hopeless point which should not be advanced.

(7) The plea to Count 3

75 Then it is said that the judge failed to direct the jury that the fact that this applicant had pleaded guilty to Count 3 did not mean that he was guilty of Count 1. It is true that the judge gave no such direction. Strictly speaking, it would have been preferable had he done so. But, in the context of this case, and given the judge's directions as to what would and what would not render the applicant's guilty of murder, the omission does not constitute a material omission. It must have been obvious to the jury that the one did not follow the other, and that is clear enough from the verdict they rendered in the case of D5 who pleaded guilty to Count 3, but who was acquitted in respect of Count 1.

(8) Shek's guilt

76 Ms Moosdeen argues, further, that it was wrong of the judge to intimate that Shek himself was guilty of murder, particularly since Shek had pleaded guilty only to manslaughter. The suggestion that Shek was, or might be, guilty of murder must be viewed in the context in which the comments were made. They were made in the course of dealing with suggestions by counsel that the worst offence of which any defendant might be guilty was manslaughter and that one of the reasons, according to the defence, that that was so, was because the prosecution had lent itself to that view by its treatment of Shek. The judge was explaining how it came to be that the prosecuting authority sometimes accepts a plea of guilty to a lesser offence than that warranted by the evidence, in order to secure the evidence of a particular culprit in the trial of others. He was, in effect, telling the jury that the fact that Shek's plea of manslaughter had been accepted by the prosecution hardly meant that it was accepted that that was the true extent of his culpability, or that that was the height of the prosecution case against the others.

(9) Youth and intent

77 Complaint is made of the fact that the judge alluded to a case overseas in which two boys aged 12 and 10 years had been convicted of murder. Counsel's suggestion is that this reference was wrongful because it is implied "that even very young children could form the intent necessary for murder". The complaint itself explains why the judge felt it necessary to refer to the UK case. There had been a suggestion in one of the closing speeches that youngsters in this particular case had treated Ah Kai as they had, merely in fun. We are told that this was a submission made with considerable emphasis, and we assume therefore, although we do not have the speech itself, that counsel had sought to negative intent on the basis that young children might behave as these youngsters had behaved, motivated by a misplaced sense of pleasure. The judge clearly felt, in the light of what had been said, that it was necessary to emphasise that youth in itself was not a defence; that youngsters of the age of the defendants in this case were capable of forming the requisite intent, and that if they did, they would, despite their relative youth, be as guilty in law as were older counterparts. It was perhaps unnecessary to labour the point by referring to the conviction of ten and twelve year old boys in the UK, but since the judge was telling the jury, as is the fact, that age was no defence, he was not, as against D4, straying from that which was permissible. We shall return to this particular aspect in the case of D8.

(10) An emotional outburst

78 A further ground, that the judge should have discharged the jury because of a suggested emotional outburst by a police officer witness, is not pursued.

(11) Ms Hilda Wong

79 Then it is said that the judge "failed to direct the jury adequately or at all on the evidence of the character witness Ms Hilda Wong." Ms Wong was called on behalf of D2. She knew some of the other defendants, because she was a social worker at an association which they attended. The judge said, having dealt with her comments about D2, that she "also had good and kind words for other defendants, but she admitted that she knew nothing about the defendants activities or habits once they were outside the Boys and Girls Association". Ms Moosdeen contends that this was not enough. We do not agree. We do not have Ms Wong's evidence, but what the judge did was to remind the jury of character evidence favourable to the defendants, and there was no need to say more.

(12) D4's statements

80 The next ground is that the judge allegedly equated the record of interview of this applicant with a confession of guilt, and failed to direct the jury that, as the applicant had adopted this record of interview in his oral testimony as containing the truth, the record should be considered by them as part of the applicant's case.

81 The judge dealt at some length with the question of statements made by the various defendants to the police, although he did not deal with the statements made by each. In other words, he dealt with the matter globally. He commenced this portion of the summing-up by pointing out that some of the defendants said that the statements they had made were accurate and, later, towards the end of this section of the summing-up, he pointed out that where a defendant had said in court that his statement to the police had been true, the jury were to take that defendant as adopting the statement as part of his evidence. He told them that they were concerned with ascertaining the extent to which the statements represented the maker's own version of events, and to what extent they were true. Thus far, there can be no objection to the directions given. Whilst the comments about assessing whether the statement maker's own version was true immediately followed a discussion about statements which constituted confessions, we do not think, in the round, that the judge was thereby saying that the statements of 11 defendants amounted to nothing more than confessions. The matter must be viewed with some degree of reality. The judge said that he was not going to take the jury through all of the statements of the defendants because "they have been read to you many times", and they were asked by the judge to look at them when they retired, when they were considering whether guilt was or was not proved. We note that the complaint now made found no echo in counsel's mind at the time of the summing-up, for even though there was a lengthy interruption of the summing-up in which counsel directed the judge's attention to matters which concerned them, there was no suggestion that the judge had left anyone with the impression that this applicant had made an unqualified admission of guilt.

82 We have the statements made by D4. No one could have been under any misapprehension as to the effect of those statements, if true, or in the light of the judge's directions, as to what did and what did not constitute guilt of any of the offences upon which this applicant was indicted. In the statements, D4 admitted that he had punched and kicked the deceased, and that he was present at the beating with the folding stools, and also when D1 beat Ah Kai, 20 to 30 times, he says, with the water pipe; but he said that at the time that Ah Kai lost consciousness, he, D4, was sitting and chatting to Sam Shuk. He added that he and others tried to wake up Ah Kai and suggested that he be sent to hospital, but that was not done for fear that the beating would be discovered. The judge reminded the jury that D4's case was that although he hit and kicked Ah Kai several times, a fact revealed in his police statements, he denied swinging Ah Kai about as had been suggested, and denied striking him with a broomstick; and that he had no intention to cause grievous bodily harm to Ah Kai. In all these circumstances, we are satisfied that the judge's approach to the statements of D4 does not render the conviction of D4 unsafe or unsatisfactory.

(13) Putting D4's case

83 Of the grounds that have been advanced on behalf of D4, only one has caused us some concern, and that is ground 8 which says :

"The learned judge failed to adequately put the defence case of the applicant to the jury."

84 D4's case was put to the jury as follows :

"NG Ming-chun, the 4th defendant, only faces the 1st count of murder. He has pleaded guilty to the 3rd count. His evidence-in-chief was very brief. He said that he hit and kicked Ah Kai several times and that was revealed in his statements to the police. He denied swinging Ah Kai around or striking his head with a broomstick. He had no intention to cause Ah Kai grievous bodily harm. He said that he was aware that the 2nd defendant left and did not return.

Under cross-examination, he said he saw the 1st defendant, 6th defendant and 10th defendant hitting Ah Kai with pipes and the 13th defendant asked them to stop but was ignored. He also mentioned about searching for Ah Kai's wallet which Ah Kai said was in his jeans in the drawer.

He said that the 6th defendant hit Ah Kai with a water pipe and he was hitting downwards when Ah Kai was lying on the floor. He said Ah Kai fainted twice. The first time was when the 1st defendant and 10th defendant hit him with water pipes for 10 to 20 times. And the second occasion was when the 6th defendant struck him. I think he also mentioned another occasion and that was when he took out the basin of water." (Tr. p.54)

85 The duty of a judge is fairly to outline the defence. He must place before the jury what is the substance of that defence:

"That does not mean to say he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given."

(per Goddard LCJ in Clayton-Wright (1948) 33 Cr.App.R. 24, 29). What is necessary will, of course, depend on the case, whether the defendant has given evidence, and what the issues are. It seems to us that the test is whether the judge has fairly reviewed the essential features of the evidence for the defendant (see R v Richardson 98 Cr.App.R. 174, 178).

86 In our opinion, the judge fairly put to the jury the essential features of the defence, to the extent that he reminded the jury accurately that D4 said that he had not struck Ah Kai on the head with a broomstick and that, although he had hit and kicked him several times, he had never intended to do him grievous bodily harm. What he omitted, however, says Ms Moosdeen, was to tell the jury that this applicant had said that he and D5 had suggested that Ah Kai should be taken to hospital, which, she argues, indicated that D4 never intended that Ah Kai be seriously harmed. Much of the cross-examination of this applicant, in the course of which this particular piece of evidence emerged, was designed to draw out assertions made by D4 in his statements to the police, statements which the jury had and which they took with them upon retirement. In those statements there is clear reference by this applicant to his suggestion, and that of D5, that Ah Kai be sent to hospital. The fact that they took with them this evidence is, perhaps, not conclusive of the matter. The point of greater weight is that we do not think that this omission by the judge is significant, for the fact that some of those present made a plea for Ah Kai to be taken to hospital after it was apparent that his life was in danger, takes the case in their favour very little further.

87 What at one stage caused us some concern was the suggested failure of the judge to mention the fact that in his oral testimony D4 said that he and D13 had asked those who were assaulting the victim with pipes to stop doing so, but that their request was ignored. We see that, according to the transcript of the summing-up, what the judge has said in this regard is merely that D1's evidence was that D13 asked the assailants to stop.

88 Mr Bruce has suggested that this court should conclude that the judge's direction, at this particular point, must have been taken by everyone who listened to it as a reminder of D4's evidence that he himself had said that the men should stop, and that explains why it is, when counsel for various defendants, including counsel for this applicant, made submissions to the judge about matters omitted or matters put incorrectly, counsel for D4 made no mention of the alleged omission, about which complaint is now made. It would in these particular circumstances be odd for us to hold that the omission (if indeed there was an omission) was such as to constitute a material irregularity. But even if that were too restrictive a view, we say that we would nonetheless be satisfied that despite the omission there has been occasioned no miscarriage of justice, so that this is a case in which it would be appropriate to apply the proviso to section 83(1) of the Criminal Procedure Ordinance. It is perfectly clear that the jury concluded that this applicant had attacked the victim with the plastic pole at or towards the end of the entire episode, as described by Shek. The reminder that this applicant had said in his evidence that he had asked the men who were attacking with pipes to desist could in our judgment and, in the light of the defence of which they were reminded, have made no difference.

D4: Conclusion

89 Accordingly, D4's application for leave to appeal against conviction is dismissed.

CHAN TAK-MING: D6

Joint Enterprise

90 It is argued, first, that the judge failed to give an adequate direction on the law of joint enterprise. It is contended that the judge, by his use of one particular analogy, was telling the jury that there was in effect no difference between the types of implements used in this case, whereas, says counsel, that was a matter for the jury to decide; and that the judge thereby took away from the jury the important task of deciding whether by using water pipes, for example, or by the use of a broom handle, the user of such an implement was going beyond the course of the joint enterprise.

91 The example used, about which complaint is made, is this:

"It is the prosecution's case that all the defendants in this case were acting under a joint enterprise or plan and that is to cause the death of Ah Kai together, although some might have played more important and active roles and some played lesser roles and were less active.

What is joint enterprise? Where an offence is committed by two or more persons, each of them may play a different part but each is guilty of the offence. I think you have been given the example of three men who went to rob a bank, although only one of them went inside the bank to threaten the staff at the counter with a pistol and got the money. The one who acted as a look-out outside the bank and the one who waited in a getaway car in the street are all guilty of robbery."

92 Mr Percy says that, in the circumstances of this case, the judge should there have added the proviso: "so long as the others all knew or contemplated that the principal player was armed with the gun".

93 The point is not well founded, because it misses what it is that the judge was doing at that stage of the summing-up. The judge was not at that stage telling the jury how some people might escape liability when another goes outside the scope of the joint enterprise. He was merely telling this lay jury, by an example often used, and which is helpfully illustrative for the layman, that different persons playing quite different roles might nonetheless be guilty of the one crime. The point is that the judge did not in his discussion of joint enterprise stop there. He went on, at some length, to explain the various aspects of law pertinent to the case which it was incumbent on the jury to consider, including the question of the participants going beyond that which had been agreed. He does it, indeed, on the page immediately following the passage to which we have just referred.

Putting D6's defence

94 The second and third grounds, which can be taken together, advanced for D6, is that the judge failed sufficiently to put this applicant's defence to the jury. First, it is said that the judge did not point out to the jury the significance of D6's plea of guilty to manslaughter, and should have told the jury that, by his plea, he accepted that he had participated in the assault upon Ah Kai, but that he did so without intending to cause serious harm, and without appreciating that others might be nurturing that intent. So, too, the judge did not point out that it was the applicant's defence that he did not contemplate that others in the group might assault the victim with an intent to cause grievous bodily harm; failed to remind them that for a period of about three quarters of an hour he, D6, was away from the premises during which time the assault with the pipes commenced; failed to tell the jury that D6 had said that he had delivered blows with one of the pipes only from a distance, and that his blows were directed at less vulnerable parts of the body such that the blows would not of themselves have caused serious harm; and, finally, failed to remind the jury that D6 had said that he attempted to revive Ah Kai, and had sought outside help immediately after the final assault.

95 That part of the summing-up in relation to D6 commenced with a reminder to the jury that D6 had pleaded guilty to manslaughter as well as to Count 3. The judge added:

"He admitted full participation in the assault of Ah Kai but said he had no intention to cause him grievous bodily harm." (tr. p. 57E)

96 The failure of the judge at this particular point to explain the difference between murder and manslaughter and its significance in the case of D6, carries little weight as a ground of application, when considered in light of the fact that the judge had told the jury that the issue for their determination in this case, with each defendant, was whether the defendant intended to cause serious bodily harm; and that he had said that in the cases of D1 and D6, if they were found not guilty of murder, a verdict of guilty of manslaughter was required, in view of their pleas; and that he also said, at a later stage of the summing-up, that those who had an intention to cause grievous bodily harm would be guilty of murder, but that a verdict of manslaughter was appropriate "in the case of other defendants who had no intention to cause serious bodily harm, but nevertheless participated in the attack, and Ah Kai died as a result of the totality of the injuries of all the attacks."

97 The essence of the next point taken can, we think, be distilled as follows: that attacks took place in the absence of D6, most particularly, according to the evidence, after about 10.35 p.m. when D6 went to fetch the second pipe, he having delivered the first pipe a few minutes before, and that when he returned at about 11.05 p.m., the beating of Ah Kai had resumed, this time with the metal pipes. The suggestion is that it may be that it was during that time that the fatal blows had been struck, blows which D6 may not have contemplated, or he may not have contemplated that they would be delivered with an intent on the part of those to whom the pipes had been given (by him) to cause grievous bodily harm.

98 The evidence of Shek, if accurate, showed this applicant as playing a very active part in the assaults upon Ah Kai. It is said that it was he, D6, who telephoned Ah Kai in the first place to lure him out; that D6 struck Ah Kai during the human pounding machine episode, and kicked and punched him thereafter, and that then he used a wooden stick to strike Ah Kai during the Tsap Kwun incident; and most significantly, that it was D6 - and he admits as much - who went out to fetch the water pipes, although some innocent gloss was put on that by him in his evidence. Shek stated that he saw D1 and D10 striking Ah Kai with water pipes, and that D6 then joined in striking Ah Kai with such a pipe too. We do not have the benefit of a transcript of the evidence of D6, but it is accepted that he admitted fetching the pipes and using one of them on Ah Kai in the later stage of the evening's attacks. In his statement to the police, he admitted being one of those who had beaten Ah Kai, that he had struck him with a wooden club, and said that he had hit the deceased three times with a water pipe on the feet. It was he who had sawn the pipes for the others, although he thought they would be used only to threaten the deceased.

99 Now, the judge reminded the jury that D6 had admitted in evidence that he had been the last person to strike Ah Kai with a weapon, and the judge told the jury that D6's defence was that he had no intention, when he assaulted Ah Kai, to cause him grievous bodily harm. It is true that he did not say that the defendant had suggested that he did not contemplate that others would use force on Ah Kai with intent to cause grievous bodily harm, but it is difficult to see, in the context of the judge's directions to the jury on the question of intent, how this mattered, for it was the judge's direction, favourable in the event to all defendants, that they were not to convict the defendant unless sure that that defendant had himself intended to cause serious bodily harm, and that as a result of his act or acts Ah Kai died. It must follow from the directions which this judge gave, that this jury decided that D6, when he joined in the water pipe attack, himself intended to cause grievous bodily harm. We are not surprised by that conclusion. It is suggested that the fatal injuries might have been occasioned earlier on. So far as the conduct of D6 was concerned, this was a single ongoing incident, and the dissection of events in this way is entirely unrealistic.

100 We do not think that the judge's failure to remind the jury that D6 had said that once Ah Kai was obviously on his last legs, he attempted to revive Ah Kai, carries the case of this applicant further. It seems that all those present, even those who had been the most remorseless in their thrashing of the deceased, had panicked at the last moment, and tried what they could to bring him round. That, at best, was a sign that they had not intended him to die. It was never anyone's case that that was their intention. It helped little in the case of someone who had struck with a wooden pole and with a water pipe to say that an attempt to revive a dying man was a sign that no serious harm was intended. The suggestion that D6 had sought outside help, but that the jury was not reminded of this, is groundless for the point was made by the judge (p.58C). Given that D6 actually joined in the attack on the deceased with the pipes, the further contention that the judge erred in not reminding the jury that D6 had said that, in bringing in the pipes, he thought merely that the men would use them to frighten Ah Kai, is an omission of no practical significance.

101 Finally, it is said that the judge failed to tell the jury that there was no evidence that the introduction of the pipes caused or contributed to death. We have seen these pipes. They are gruesome weapons used, according to the evidence, with force and on Ah Kai's head, shortly after which Ah Kai died. Had the judge said to the jury that there was no evidence that the pipes caused or contributed to death, one would have said that he had lost touch with reality. That is why, no doubt, it never occurred to him to give such a wholly artificial direction.

D6: Conclusion

102 In the circumstances, the application by D6 for leave to appeal against conviction is dismissed.

WONG KAM-PO: D8

103 Given the nature of the complaints made in the case of D8, we think it necessary to rehearse in some detail the prosecution evidence against D8, and D8's own evidence.

The evidence against D8

104 D8 was aged 14 years at the time of the incident on 14 May 1997 which led to the death of Ah Kai. The prosecution evidence against D8 was that he arrived with others after the beating of Ah Kai had commenced, but that he joined in the beating, although there is no suggestion that, in the first phase of the incident that night, he used any kind of weapon. He is said to have joined in kicking and punching. Shek said that when D1 and D6 were using wooden sticks to beat Ah Kai, D8 was one of those using hands or feet in attacking Ah Kai; that at this stage he, Shek, saw blood on Ah Kai's legs; and that when the poem was recited, D8 joined in delivering blows to Ah Kai. Shek said that during the 'strike the fish' incident, when folding stools were used, "most of the boys had taken part in hitting [Ah Kai]" (tr. p. 1022), which included D8 who hit with fists and legs. Shek relates how, at one stage, a person called Lo was unwilling to hit Ah Kai, but was told by D10 that if he refused to hit him he too would be beaten. However Lau Chi-man nonetheless was warding off kicks aimed at Ah Kai. When Ah Kai was being hit with folding stools, D10 used sticks or poles to hit him and then "the group of boys kicked him as well", a group which included D8. Then people left. Then D6 returned with the pipes, they were sawn and then used to scare Ah Kai; and then Ah Kai was hit with the pipes, at that stage by D1 and D10, who were reciting names that appeared in a comic book. They were then hitting him forcefully, and Ah Kai cried out in pain each time. D8 was present when this was happening. D6 returned with another pipe. Then after the second length of pipe was cut he, Shek, saw four persons hitting Ah Kai: "Wong Kam-po [D8], Chan Tak-ming [D6], Hui Chi-wai [D1] and Fu Hin-chun [D10]." All but D8 used pipes. D8 used a turner (a spatula or wok turner, as it was variously described). It was made of iron with a wooden handle. At this stage Ah Kai was lying on the ground. There were lots of injuries to his back. Ah Kai gave no response to the hitting, and was taken to the toilet for his face to be splashed and, when he returned, D8 and the others "kept on hitting him and when they were hitting him they also spelt out his mistakes". They hit him until he fainted again.

Cross-examination of Shek

105 In the course of cross-examination, Mr Polson, who then acted for D8, sought to show a distinction of roles between the younger members of the group, and those who were older. He suggested that Shek was playing the role of a comic book character, that the group had become desensitized to violence by virtue of the fact that he and those like him watched violence on TV and yet saw victims of those violent attacks who did not die; so that their group failed to foresee the consequences of their actions in the course of the beating of Ah Kai. He put it to Shek that the purpose of the beating was not only to teach Ah Kai a lesson, but also that it was to be done in a way "which was fun for the group" [tr. p. 1402]. It was put to him that it was the role of the younger boys to follow orders, and that the consequences of not doing so were very strict. It was put to him that he, Shek, had used more violence on Ah Kai than had D8, and he disagreed saying that when he was hitting Ah Kai, D8 took part in the assault. He disagreed that the striking with the spatula was only a slap or a very minor thing. Shek also accepted, by reference to photographs, that in the kitchen of Sam's flat, there was a chopper that was not used.

D8's evidence

106 D8 gave evidence at the trial, and we have a transcript of his testimony. He said, in examination in chief, that he read comics, and watched kung fu videos. He added that he went up to Sam Shuk's flat that evening to play. When he was there, he saw Ah Kai lying there being fed something and he hit Ah Kai with a group of others "for fun". He kicked him and when asked why he did so, he said that he did so "to play". There were two occasions upon which he kicked Ah Kai. At the place where there was a spatula, or wok turner, there was also a chopper. He picked up the spatula rather than the chopper because "I was only going to play. I wasn't going to kill or cause him any injury". He hit Ah Kai with the spatula on his buttocks, and hit him five or six times, not thinking before he acted. If older members of the group told him to do something he would normally obey. He had heard Sam Shuk say that the group should injure Ah Kai more severely than he, Sam, had been injured, and that influenced him slightly. He, D8, was wearing rubber shoes, and the force of his kicks was moderate.

107 He asserted that he would not have expected Ah Kai to have suffered any injuries as a result of the kicks which he had delivered. He added that he would follow the others in whatever he was told to do. He then said that there was a time at which he told D6 not to hit Ah Kai; that was "during the time [D6] hit Ah Kai with water pipe." He told D6 not to hit because he saw "that the previous blow was very serious." This was after, he, D8, had used the spatula. Pausing there, the suggestion seems to be that there had already been a pipe blow or blows and that he, D8, intervened only when one of the blows became 'very serious.' It was, he said, when he saw that blow that his own ' assessment of the fun situation' changed in his mind. When D6 heard this request to stop "I saw that he wanted to stop, but then the blow already landed." (tr. p. 621)

108 In cross-examination on behalf of D10, he said that before D6 used a pipe to strike Ah Kai, the blows with the metal pipes had not been 'really that serious,' and, importantly, he accepted that he had joined in, with the use of the spatula, after he had seen some other boys use pipes to hit Ah Kai. (tr. p. 632)

109 In cross-examination by the prosecution, he accepted that after the date eating incident, which he witnessed, there was a group attack upon Ah Kai in which he took part; and he asserted that, after that, he sat on a sofa and talked. He knew of D1's solo attack on Ah Kai, and that it was very fierce. He knew of the Tsap Kwun incident, and he joined in that attack by kicking the victim. Ah Kai had been kneeling at the beginning of that incident, but later he was lying prone, and it was whilst he was lying prone that he, D8, kicked him. He accepted that he had seen Ah Kai's nose bleeding, bruises all over his body, and his face swollen, and that that had been his condition before he started to kick Ah Kai. He kicked him five or six times indiscriminately over his body. When Lau Chi-man pleaded with D10 to be allowed to take Ah Kai away, he said nothing to support that plea. He saw D3 use a stool to hit Ah Kai as a result of which Ah Kai was on the floor, rolling in pain and, after that, "the whole group hit him" (tr. p. 651), and that group included himself. He, D8, did not leave when some of the others left at the 'break'. He saw D6 return to the flat with pipes. He heard D10 refuse Lau Chi-man permission to take Ah Kai away. He saw D1 and D10 use the pipes to hit Ah Kai. He was then asked:

"Q. When the two were hitting Ah Kai, that is D1 and D10 hitting Ah Kai, did anyone join them by kicking or punching Ah Kai?

A: You mean the time when the water pipes were being used?

Q: Yes.

A: I had hit him with the spatula.

Q: How many times did you use the spatula to join the two when the two were using pipes to hit Ah Kai?

A: Once." (tr. p.654)

Essence of the defence

110 The essence of the defence of D8 was that he never intended that Ah Kai be occasioned really serious harm. He admitted taking part in beatings and, it seems clear, also taking part - though not himself using a pipe - whilst Ah Kai was struck with pipes, but only so long as the pipe beating did not appear to him to be too serious. Once D6 used a pipe with great force he, D8, realised that matters had taken a serious turn, so that he then told D6 not to carry on.

The judge's approach to D8's defence

111 Mr Haynes, on behalf of D8, argues that the defence put forward by D8 was not fairly put to the jury, and that that unfairness is highlighted by a 'correction' by the judge, in the course of his summing up, of part of the speech by counsel for D8. He says that the criticism of counsel's speech was unfounded, ought not to have been made without prior consultation with counsel; and that, in its effect, it withdrew from the jury consideration of D8's defence, and took the jury to an objective assessment of intent rather than to a proper consideration of the subjective view of a fourteen year old brought up in a culture of comic book violence - a youngster who may not have appreciated, as adults from a different background might, what were the consequences of his conduct. It is said that, in the circumstances pertaining to D8, the judge ought to have provided a direction to give effect to the terms of section 65A of the Criminal Procedure Ordinance which provides that a jury "shall not be bound in law to infer that a [person] intended or foresaw a result of his acts or omissions by reason only of its being a natural and probable consequence of those acts and omissions."

112 We do not have a transcript of the speech by D8's counsel to the jury. We are told by Mr Bruce that that speech was strong and emotive. Clearly something was said in the course of it which moved the judge to express himself in forceful terms. This is what the judge said:

"Now, members of the jury, before I come to the evidence of the 8th defendant, I think I must take the opportunity to correct a few things that arose out of counsel's speech. You will remember Mr Polson telling you that these defendants were beating up Ah Kai 'for fun' and had no intention to cause him harm.

Members of the jury, Hong Kong is a civilised society and it is against the law to beat up other people in any form or for any reasons. Beating a person to death in the way that Ah Kai was beaten up would not be any fun to anyone. Would it be any fun to you? It would be no fun to me.

Mr Polson also told you that these defendants were only 14-15-year-old and they lived in Sau Mau Ping and read the comic books. The criminal law of Hong Kong - in particular, the law of murder - applies to everyone across the board who is old enough to be criminally liable for his or her own act or acts. Now, it does not matter if he lives in Sau Mau Ping or the Peak. It does not matter if he reads the Apple or the Oriental Daily or the South China Morning Post or the Financial Times. They are to be treated exactly the same.

And I think there used to be a saying, 'Poverty is a misfortune, not a privilege.' But I do not think these people are that poor.

Now, 14 years of age is old enough to be criminally responsible for all crimes under our criminal law. Now, in recent times, you probably have read about cases involving 10-to 12-year-old boys who were convicted of murder in the United Kingdom. I will say no more about this and I leave the matter to your good sense. But I do not think I ought to allow this type of speech to go to the jury without any correction." (pp. 59-60)

113 The following day, counsel for the applicant addressed the judge in the absence of the jury. This is what he said:

"MR POLSON: Yes, My Lord. Thank you for coming in without the jury. My Lord, I am just anxious to say something to clarify what I think may be a misunderstanding as to your Lordship's understanding of what I said to the jury. My Lord, when I mentioned the word about 'having fun', I did it in the context that these immature young people may, in their way, have thought that they were having fun and I gave the example, to illustrate this, of some of these student initiation ceremonies that go wrong, where immature people think they're having fun and they cause very serious harm to somebody. And I put that in the context of Section 65A of the Criminal Procedure Ordinance which mandates a subjective test or intention or foreseeability.

I never said that this was fun, my Lord, and I don't regard it as fun any more than your Lordship or any mature educated person would regard it as fun. And I am just anxious that your Lordship doesn't imply to the jury that I am saying any of this was fun. Of course, I am not saying any such thing. Thank you, my Lord.

COURT: Yes. All right. I will tell the jury that that was your instruction that you were, in fact, putting forward to the jury.

MR POLSON: Well, yes, my Lord. But all the defendants, as I understand it, have virtually gone into the witness box and said, 'No, we didn't intend to harm him; we were only having fun.' Now, by adult standards, that's not an acceptable conclusion but ...

COURT: Well, by any standard, I think, Mr Polson.

MR POLSON: Well, that is ...

COURT: I think, by any standard, it is not an acceptable ...

MR POLSON: No, my Lord.

COURT: ... way of ...

MR POLSON: No, my Lord.

COURT: ... or excuse.

MR POLSON: Yes, my Lord.

COURT: All right." (tr. pp. 62-63)

114 When the jury was recalled the judge spoke to them as follows:

"COURT: Well, members of the jury, before I continue my summing-up, I think I would like to point out one matter to you and that is my comment with regard to Mr Polson's speech, now, about the defendants 'having fun' when they beat up Ah Kai. Of course, I accept that was not Mr Polson's proposition or his own idea on the matter because you heard the evidence from the various defendants and he was just putting or summarising what the defendants said - when they were beating Ah Kai, they were not intending to do him grievous bodily harm; they were just 'having fun'. That was what was in their minds at the time.

So, if I have said anything which is unfair to Mr Polson, you will ignore that and try to put the matter in proper context. It was not Mr Polson's suggestion that beating another person or, even worse, still worse, beating someone to death is fun. That is not what Mr Polson suggested to you. Bear this in mind." (tr. pp. 69-70)

115 He then dealt with the case of D8 and summarised some of the evidence, and then said:

"There was another occasion when he did the same thing to Ah Kai. That was the occasion when he hit Ah Kai on the buttock with a spatula which he took from the kitchen. He said, as a result of the hitting, the spatula became dented or crooked. That was after he had hit Ah Kai five to six times when he stopped to straighten the spatula. He said that he was only playing with Ah Kai for fun and had no intention to do him any harm. Then he went out of the flat to have some fresh air and, while in the corridor, he heard that Ah Kai stopped breathing.

He became scared and said he is now very remorseful. He has pleaded guilty to preventing the lawful burial of Ah Kai's corpse.

He said SHEK Tsz-kin was not the most influential man in the group. He said he told the 6th defendant to stop when the 6th defendant was hitting Ah Kai with a water pipe. And he told you that he was, in fact, hit by the 6th defendant's water pipe by mistake. And he said that he knew of the plan to beat up Ah Kai before he went up to Sam Shuk's place." (tr. p. 71)

116 We have, at [77] above, made the point that it was perhaps unnecessary for the judge to refer to convictions in the UK of 10 and 12 year olds, but that the judge clearly felt, in the context of the speech or speeches that had been made, that the jury should be aware of the fact that youth of itself was no defence.

117 In examining the judge's comments, their propriety and impact, they must be looked at in context; that is, in the context of why they were made, the point to which the judge was responding, the point which he was trying to convey, the evidence in the case, and the rest of the summing-up.

118 Judges are entitled in the course of a summing-up to make comments about assertions made in speeches and, where the circumstances so warrant, to make strong comment, the jury having been told, as they were in this case, that they can take or leave such comment as they see fit; although the formula whereby a jury is told to ignore judicial comment, if they disagree with it, is not a formula that will save every comment. The judge who has sat through a trial and heard speeches and the tone in which they are delivered, is well placed to assess what can be left alone and what, on the other hand, carries a danger of a fundamental misconception such that it should be the subject of comment. It is well within the experience of those who conduct, or appear in, jury trials that comments about a point arising in counsel's speech are regularly made without first giving counsel the chance to make submissions about the proposed comment. There are some matters which a judge would be wise to discuss with counsel before the summing-up, and it is also open to a judge to invite counsel to correct himself, rather than be corrected. But where a judge is confident, as clearly this judge was, about the text or nature of a submission made by counsel in a speech, the judge may make his comment, and it is always open to counsel, as happened in this case, to invite the judge to qualify or correct himself.

119 In this instance, it seems that the judge was under the impression that Mr Polson had, by the text and manner of his speech, belittled the gravity of the events which constituted, on any view, a prolonged and cruel and vicious attack on Ah Kai. The judge was making a number of points. First, and correctly, he was telling this jury that youth was not a defence in itself. He was emphasising that point, and he had to, because the conduct of youth had, it seems evident, strongly been prayed in aid by the defence. Secondly, the judge was, we think, also saying that the suggested reason for the escapade, namely, 'fun', did not render the beating anything other than a beating; and that a beating was unlawful whether, on the one hand, it was carried out for self gratification, or some perverse sense of fun, or whether, on the other, it was carried out for a specific objective. Thirdly, he was making his own comment that he found it difficult to see how such a beating could possibly be categorised by anyone as fun. These were all points the judge was entitled to make.

120 We have considered closely the suggestion that the judge nonetheless took away from D8 his defence that, as a youth, his perception, should be examined subjectively, as that of an immature 14 year old brought up in a comic book culture; and that by 'fun' all he was seeking to emphasise was that he did not intend to cause serious harm. We do not think that, in full and proper context, the judge's comments, or treatment of the defence, constituted any material error or unfairness.

121 In the comments made by the judge after Mr Polson's intervention, set out at [112] above, the judge withdrew his earlier suggestion, if indeed that was his suggestion, that Mr Polson had asserted that 'beating someone to death is fun'; and he told the jury that what Mr Polson was doing was to remind them that the defendants were saying that when beating Ah Kai they 'were not intending to do him grievous bodily harm.'

122 That this was the defence advanced was also mentioned by the judge in relation to the defendants generally at an early stage of the summing-up, when (p. 13) he posed the question: "Do you think his attackers were just playing with him or making fun of him and had no intention to cause him serious bodily injury? That is a matter entirely for you, members of the jury. You apply your common sense." The jury was reminded in the course of the summing-up of D8's age, of his evidence that he had never been involved in violence, and that he liked comics and watched Kung Fu videos. The judge told the jury in terms that this applicant said that 'he was only playing with Ah Kai for fun and had no intention to do him any harm'; and he reminded them expressly that D8 had said in evidence that he had told D6 to stop hitting Ah Kai with a pipe. We accept that the way in which the judge dealt with D8's account was brief, and it may well be that he could have dealt more specifically with the mind of a 14 year old. Yet we are satisfied that the defence was not unfairly put; and it is not to be forgotten that the judge told the jury in very clear terms that no defendant was to be convicted unless they were sure that that defendant had intended really serious harm.

123 The contention that the judge ought to have provided a direction specifically framed with section 65A of the Criminal Procedure Ordinance in mind is part and parcel of the argument that it was important to tell the jury that it was the subjective intent of this fourteen year old that was vital, and not some group collective intent. The point is not in our opinion a sound one. The judge gave a direction as to individual intent. Furthermore, we believe that in the context of this case, the nature of the attacks, and D8's own evidence, such a direction would have been artificial.

The expert evidence

124 The next ground of appeal is that the judge wrongly refused to permit the defence to call expert evidence. In this instance, the proposed evidence was that of Dr Ho, a psychologist. The report which Dr Ho had prepared dealt with D8's education and family background, and his special environment. It recorded the fact that 'intimidation and bullying and violence ... are very much the environment in which he grew up,' a suggestion made by the applicant himself in evidence; and he recorded the applicant as having told him that he had a fear of being beaten by those stronger than himself. This applicant also told Dr Ho about a comic serial called "The Cunning Boys", and films based on that series, the suggestion being that D8 had become desensitized to the violence there depicted.

125 Dr Ho concluded in his report that D8 did not suffer from any intellectual deficit or subnormality. He said that he agreed with the applicant's description of himself that he, D8, was a follower rather than a leader. We pause to say that no one suggested in this case that this applicant was anything other than a follower: it was evident from his role, as well as from his age relative to that of the others in the group. The psychologist, who was in court during some of the evidence, sought also to assess the relative strength of D8 when compared to the witness Shek. That, with respect, was something that the jury could do for themselves, without the aid of any witness, expert or otherwise; and it was not in any event an issue.

126 Dr Ho concluded that D8 suffered from no psychological disturbance and lacked 'motivation for foresight' and was, as we say, a follower and not a leader.

127 The central question, said Dr Ho, was: "How is it possible for a youngster, in many ways rather typically of those from his geographical and socio-economic background, to engage in alleged acts that are so violent and revolting according to the usual standards of human decency?" He proceeded to analyse that issue, by reference to the fact that bullying and violence was ever present in D8's social world; and that the violence depicted in "'The Cunning Boys' is extreme in both pervasiveness and its disregard for human life .... It is difficult to express a definitive opinion on the precise effects of exposure to violence in the mass media .... In the absence of a solid family education, one is more susceptible to accept the values embodied in 'The Cunning Boys.' The tragic result is equation of manhood with aggression and violence." He wrote then of how, in a group, inhibitions against violence may be loosened, and that D8 had a predisposition to follow what others did.

128 We find it difficult to see, as no doubt did the judge, how any of this evidence was relevant to the issue which the jury had in the case of D8 to decide, which was whether he was party to an attack intended to cause grievous bodily harm, and whether he himself intended to cause grievous bodily harm. That, in essence, was how the matter was left to the jury. The fact, if it is a fact, that the comic book culture in which he found himself is a culture which has a disregard for human life, may be an explanation, as Dr Ho suggests, for violence by youngsters - though it is not necessary for us to comment upon, still less come to a conclusion about, that analysis. It may very well be that bullying and violence was part and parcel of D8's life. Furthermore, it was common ground that D8 was a follower and not a leader. But none of this was the issue for the jury. The point at issue, accepting that he was a follower, and accepting that his group was a group of bullies acting out their bullying culture by which they were surrounded, was whether D8 took part in the attack which caused Ah Kai's death and, if he did, whether he intended that really serious harm be caused. There could be no question of a defence of duress. There was no suggestion that he did not know that the pipes could cause very serious harm; indeed, his own evidence was that he realised they could and were going to, and that he therefore asked D6 to stop. Nothing the psychologist said that was relevant to the issue in D8's case, was not said or could not be said by the applicant himself. Nothing required expert evidence to assist the jury in relation to issues before them which that they were not fully capable of assessing themselves. A perusal of D8' evidence, both in chief and in cross-examination, shows what it is that he appreciated about the injuries caused to Ah Kai. He knew that before the 'break' the victim was bleeding from the nose and had bruises all over his body; he said in terms that he would not have picked up the spatula to hit if the others had been using the pipes to hit seriously. We are of the view that the evidence of Dr Ho was correctly excluded.

D8: Conclusion

129 For the reasons which we have provided, the application by D8 for leave to appeal against conviction is dismissed.

130 We would add only this: D8 admitted in his evidence that he had taken part in a beating that lasted over two hours; that he had kicked Ah Kai at several stages, well aware that Ah Kai was injured; and that he stayed in the premises after the introduction of the water pipes, and was not only present when the water pipes were used, but also took part in assaulting Ah Kai when the pipes were used. On his own case, it is extremely difficult to see how he could avoid the verdict which was delivered in his case.

FU HIN-CHUN: D10

131 Six grounds of application are put forward on behalf of D10.

(1) AND (2): THE ADMISSIBILITY OF THE RECORDS OF INTERVIEW

132 D10 was interviewed on four occasions, and the prosecution sought to adduce evidence of the records of those interviews. The interviews were conducted on 18 May in the evening; on 19 May during the afternoon and evening; and then two interviews in short succession on 20 May from mid-morning to early afternoon.

133 The statements made by D10 in the course of interviews were clearly inculpatory. In them, D10 admitted taking part in beating Ah Kai, and in the first of the interviews he said that in addition to striking him with fists and kicks, including a kick to the head, he also beat his head with a folding stool. In the course of the second interview, he said that he threatened Ah Kai with one of the metal pipes. He described how he and others spent something like half an hour trying to resuscitate Ah Kai after they noticed that he was cold all over, had no reaction, had no heart beat and that his mouth was open. He spoke also of the manner in which they planned disposal of the body, and how that plan was executed. The statements of 20 May add little to the two earlier statements.

134 Objections to the admissibility of the records of interview were made. We are told that for the purpose of this appeal, there are two objections with which we need be concerned.

135 The first was the suggestion that D10's mother told him not to be afraid, that he should tell everything, and that everything would be alright very soon and that, on the way to the room in which the first interview was conducted, she repeated the same advice. These comments were alleged to have been made in the presence of the statement taker or interviewer, DPC 23215. The contention was that the comment made in the presence of the police officer constituted an unacceptable inducement by reason of which the statements which followed were not made voluntarily.

136 When DPC 23295 gave evidence on the voir dire, he was asked whether, before the conduct of the first interview, the mother had said anything to D10. The officer's answer was: "Perhaps she had, but it wouldn't be in relation to the case." Then, the following exchange:

"Q. Officer, did you hear the mother saying to the defendant, 'do not be afraid'?

A. I can't recall.

Q. Did you hear the mother saying to the defendant, 'just tell them everything, it will be over very soon'?

A. I can't recall." (tr. p. 691)

137 Another officer gave evidence. He was PC 45189. His job was to take D10 and his mother to a particular room when they first arrived at the police station, the room in which the mother was said first to have offered the offending inducement. He was asked:

"When you were inside that room with the defendant and his mother, did the mother say anything to her son?"

and his answer was that he was not too clear, that it was a long time ago, and he could not recall.

The matter was left there.

138 D10 did not give evidence on the voir dire. Neither did his mother. There was thus no evidence, from any quarter at all, that the alleged comments were indeed made or that, if made, they had any impact on this applicant whatsoever, or what effect the subsequent cautions administered by the interviewing officer had.

139 It was argued on a submission of no case to answer on the issue of admissibility and, again, later after the voir dire as a whole, that the assertion had not been rebutted.

140 The judge took the view that it was, in the circumstances which presented themselves to him, not necessary to consider whether the mother was a person in authority as had been suggested by counsel for D10; although he, the judge entertained grave doubts that she was. It was sufficient that the officers did not recall such comments, and that there was no evidence by anyone that the comments had been made.

141 The second objection to which our attention is directed, (and which we now recite from the transcript of counsel's reading of the particulars of objection) was that, between 18th and 19th May:

"'(19) a uniformed police officer, who the defendant believes is surnamed Shek ...'

Whom I will call officer B:

'... looked for the defendant, scolded him severely and threatened him that after the handover he would be brought before the firing squad.

'(20) Officer A ...'

My Lord, who already has been featured in paragraph (1):

'... the same officer, the same uniformed police officer, who has not been identified induced the defendant, saying that what he could do was that he could tell everything to the police, that they had not intended to kill anyone that might be able to save him being brought to face the firing squad." (tr. p. 1765)

142 It is not clear from the transcript at what place and time the threats were said to have been made. Counsel in his submissions to us suggested, and there is support for this suggestion in other parts of the transcript, that the allegation was that these threats were made after the defendant was brought to his cell. In submissions to the judge, counsel asserted the allegation to be that "after the defendant was brought back into the cell there were two uniformed police officers who had certain conversations with the defendant down in the cell and that they had threatened him. So there was a distinctive allegation raised in respect of that period in time." (tr. p. 1744) Counsel submitted that there had been no evidence whatsoever in the prosecution's case to cover that period of time. No police officers were called in relation to this assertion. Once again, it is to be noted that the assertion remained just that, an assertion unsupported by evidence. D10 did not give evidence about the allegation, nor was any called on his behalf, nor any police records produced to suggest a visit to D10 during this period.

The judge's ruling

143 The judge dealt with these specific allegations in his ruling on the question of admissibility. In arriving at his conclusion, the judge referred to a number of authorities. First, the case of R v. Wong Kuen & Others [1983] 1 HKC 439 which was said by counsel for D10 to support an argument that where an allegation was made and no evidence called in rebuttal of it, that failure was fatal to the prosecution to attempt to prove voluntariness of an inculpatory statement. Having referred to that argument, the judge said that:

"It is to be noted that A10 did not give evidence. Where an accused raised serious allegations against the police, it is important, in my judgment, for the defence to adduce some evidence before the Court to support the allegations. There is no such evidence." (tr. p. 880)

144 He then referred, in apparent support of this conclusion, to the decision in Leung Wing-ming v R [1981] HKLR 96. In that case, an identified officer against whom an allegation was made was not called, and the defendant did not give evidence, but the statement was nonetheless admitted. The Court of Appeal refused to interfere with the decision on the footing that: "Although it was always highly desirable in any case in which a particular officer is accused of wrongful behaviour that he should be called to give evidence on the issue of admissibility, and although there may be circumstances when the court will feel it unsafe to rely upon other evidence which purports to discharge the onus on the Crown, there is no principle preventing the onus from being discharged by evidence aliunde."

145 The judge said that this decision was not cited in Wong Kuen & others, and that he was fortified by the judgment of P Chan J, as he then was, in R v Lau Ming-hei Mag App No. 66 of 1996.

146 We shall return to these cases when we address the second of the allegations made by D10, that is, the allegation of threats between 18 and 19 May by a man thought to be named Shek and by an unidentified police officer.

The mother's inducement

147 Mr Whitehouse argues, on behalf of D10, that it is for the prosecution always to prove positively that a confession, in whatever form, which the prosecution seek to adduce in evidence, has been voluntarily made; and that where an assertion is made by a defendant, it is for the prosecution to disprove it by what he calls positive evidence, and that the failure to do so must mean that the burden on the prosecution to prove voluntariness has in this case not been discharged. So, here, since there was no evidence that the mother did not say what she is alleged to have said in the presence of the police officers, the voluntariness of the first statement, and all that follows, must be in doubt.

148 The proposition has only to be stated for its lack of contact with reality to be obvious, and for this purpose we shall assume that an inducement made not directly by a person in authority, but made in the presence of such a person, may, depending on the circumstances, be taken as made by the person in authority unless that person dissents. If Mr Whitehouse's proposition were correct, it would mean that a mere assertion of this kind could be made, and that whenever the officer who was present is forced to concede, because of the passage of time and because he is telling the truth, that he cannot remember any such statement, even though perhaps he does not think that such a statement was made, a judge would be bound to rule the confession inadmissible; and would be bound to do so even in the absence of any evidence whatsoever that something of the kind was said, and in the absence of any evidence that, but for it, the confession might never had been forthcoming. We do not think that that can be right. In this case, evidence was called covering the period in question, namely, the period before the statement was made, the period when the mother was in the presence of the officers, and the judge was satisfied that there was no foundation for finding other than that the statement was voluntary. Evidence was called about the circumstances in which the first and subsequent statements were made, and about conduct in the presence of the mother and, in the circumstances, no more was required to meet this particular allegation.

The allegation of threats, and the judge's comments

149 The next assertion, that of threats, and the complaint about the judge's comment as to the importance of the accused giving evidence, is more difficult.

150 What evidence is necessary to call in a particular case depends on the facts and issues in the case, and it is not wise to lay down hard and fast rules. But the basic rules seem clear enough from the cases and, if intended as a blanket or unqualified proposition, it is not correct to say that "where an accused has raised serious allegations against the police it is important for the defence to adduce some evidence before the court to support the allegations," if by that is meant an obligation on a defendant to give evidence. Nor do the cases which the judge cited support such a proposition.

151 The argument which Mr Whitehouse has advanced proceeds on the basis that the judge was making a statement of general application, and was saying that it is incumbent upon a defendant in any voir dire to adduce evidence in support of allegations which, if correct, would undermine the voluntariness of a confession, failing which a challenge to admissibility cannot succeed. If that was the suggestion which the judge was making and if that governed his approach to the question of admissibility in the case of D10, then he was in error. Neither do the cases which the judge mentioned immediately after his comment support such a general or blanket proposition.

152 The problem with Mr Whitehouse's argument is that it isolates the statement made by the judge from the nature of the allegations made in this voir dire, and from the submissions made at great length by counsel immediately before this ruling, and places upon his statement a gloss, or a literal construction, which, we are satisfied, was not intended. Since the statement by the judge is on its face and without any qualification contrary to established principle, and since the cases which the judge has cited do not support the proposition which counsel says was intended by the judge, one should take care before concluding that the judge intended the proposition as, in isolation, it reads. For that reason, we have studied in full the objections to admissibility, the lengthy submissions made by counsel in the course of the voir dire, the reasons given by counsel for the prosecution for not calling further evidence, and the entire ruling of the judge on the voir dires which related to 12 of the 13 defendants at trial.

153 In this case there was no identification of the officers who are said to have made the threats between 18th and 19th May, nor in the written objections, it seems, any particulars as to where exactly the threats were made.

154 In this connection it is helpful to examine the decision in R v. Tang Yuk-yan Cr. Appeal No. 58 of 1991, an unreported decision of the Court of Appeal. The grounds of objection in that case were that the applicant had been assaulted by six or seven officers, had then been taken by a sergeant to a nearby lavatory, and assaulted again and threatened by him, and it was immediately following that that the defendant was taken to a room where he made the statement, the admissibility of which was challenged. The only officer who gave evidence on the voir dire was the officer who took that statement. The defence, not surprisingly, submitted that there was a lacuna in the prosecution's evidence, namely, the failure, to deal with the allegation levelled against the sergeant and the other officers. Power V-P referred to the decision of the Court in Leung Wing-ming (to which the judge in the present case referred in his ruling) and its reference to Lung Wing-kei (Cr App No. 386 of 1980), in which latter case the Court had said that "where the defence puts forward allegations of improper conduct on the part of a police officer who has been sufficiently identified it is for the Crown to establish by calling this officer (or another officer where appropriate) that the allegations are unjustified and that the statements were of a voluntary nature." (Emphasis added) The court in Tang Yuk-yan accepted that to be a correct statement of the law, and said that the issue in its case was "whether the officers who are said to have used force and threats were sufficiently identified". The court thought that they were, and referred to the fact that it was made clear that the person most immediately involved was a sergeant who was at the station on that day immediately before the taking of the statement. In the circumstances it had been incumbent upon the prosecution to call either the sergeant, if he existed, or the duty officer, to swear to the circumstances that obtained immediately prior to the taking of the statement. The Court of Appeal held that the failure to call such evidence was fatal, and the conviction was quashed.

155 Against such considerations, we must ascertain what occurred in the present case. The prosecution called evidence as to the taking of the statements. The evidence was that the statement on 18th May was concluded at 10.10 p.m., and that D10 was then taken for a house search, and returned to the police station at about 11.45 p.m. The interview the next day started at 1.28 p.m.

156 We have referred to the fact that the assertion was that threats were made after the applicant was returned to the cell after the interview of 18 May. In response to a submission made by counsel for D10 that, on the voir dire, there was no case for D10 to answer, counsel for the prosecution had this to say:

"As far as the allegation of objections number 19 and 20, grounds 19 and 20 are concerned, my Lord, as you know that before the commencement of this voir dire, I have informed your Lordship or the court that the clue given by my learned friend, Mr TSE as to who was the uniformed police officer surnamed SHEK was concerned, we had caused efforts to search for who was this officer.

And we have even supplied my learned friends with a list of the officers who were on duty on those days and it had not been suggested that any one of the police officers who appeared in that list was an officer who was concerned or who had appeared in the police station at the particular time and who had said something to threaten the defendant. My Lord, if there is insufficient information provided by the prosecution to locate the relevant officers, it would be unable for us to adduce or to prove beyond reasonable doubt that that what actually alleged had happened and while I'm on this issue, I ask may I reserve our position to rebut those evidence if any of those evidence appear in the defence case to call the relevant officers from the police station?" (tr. p.1748)

157 Counsel for D10 replied by saying:

"In our grounds of objection in relation to ground 19, we've only stated that we believe that police officer to be surnamed SHEK; is only a belief. If the prosecution were to say that there was no such police officer, they should still call evidence to cover that period of time to show that no police officer, no uniformed police officer at that material time had gone down to the cell and made the threats against the defendant.

The only reason we supplied our belief - the information of our belief that that officer was surnamed SHEK was only to assist the prosecution to identify the police officer. If that police officer could not be identified, that does not release the prosecution from their duty and their burden of calling whoever was down in the cell on duty at that time to come to give evidence to prove that no police officer had made those threats against the defendant in the cell. In addition to that, ground 20 deals with another police officer, who was not surnamed SHEK. It deals with - those two grounds are actually about two different police officers, two uniformed police officers who we say had gone down to the cell at a certain period of time and threatened the defendant.

So my submission is that the prosecution's reply to that is simply insufficient. Grounds have been supplied, according to the case of Wong Kuen. The prosecution will then have the duty and they had chosen not to call any evidence and therefore, they had failed in discharging the burden. It's as simple as that, my Lord. Unless I can assist your Lordship further." (tr. pp. 1748-1749)

158 These submissions were made on 24 August 1998. The following day, after no evidence was called by the defence in the voir dire, final submissions on the question of admissibility were made.

159 In the course of those submissions, counsel for the prosecution specifically addressed the judge as to why it was that no further evidence was called to deal with the alleged cell visits and threats. As to officer A, he was expressly said to be the same officer who earlier, on 18 May, had in room G04 scolded and frightened D10. Counsel submitted that there was evidence that there was no such person. There had been evidence that apart from PC 45189, who was called to testify, and against whom this particular allegation was not made, there was no other uniformed police officer in that room. If the judge accepted this submission, and in his ruling on the voir dire he made express reference to taking into account submissions from counsel, then he clearly took the view that it was hardly necessary for the prosecution to go further in relation to identifying officer A.

160 That leaves the uniformed officer whom the defendant believed was surnamed Shek, and the question is whether it was incumbent upon the prosecution to call, having clearly failed to identify anyone called Shek, evidence about other visits, or the absence of them, to the cell by uniformed officers. Now it is clear that counsel had addressed the court and was telling the court that it was not in a position to call evidence, because the officer was simply not sufficiently identified. It might be said that evidence should have been called to speak to such names as might appear in a register of visits to the defendant. The fact of the matter is that there is reference to a register. We note, for example, that at least one witness was called in the voir dire who, the register showed, had seen the defendant in the early hours of 19 May after he was brought back to the police station, after the first interview and after the house search (tr. p. 750). That was a register in the hands of the defence. We think that one can safely assume that it did not show visits by any officers to the defendant in his cell, and that none of the record books showed such visits. Had that been otherwise, one would have expected counsel for D10, in his extensive submissions as to what evidence should have been called, to refer to station records and the failure to call those named in them. The fact of the matter is that this was a case in which the prosecution went to considerable lengths to identify who the suggested officers, including the supply to defence of a list of everyone on duty. This was a case in which the prosecution was not in a position positively to refute the bare allegations for the simple reason that it was not possible to identify the officers or to call evidence not already scrutinised by the defence or before the court, to negate the assertions. That being so, the failure to call non-existent or non-identifiable evidence was not fatal to the prosecution's task of proving voluntariness. We note, too, that nothing whatsoever was put by counsel for D10 to any of the officers called in the voir dire which might have elicited information about, or which might have identified, the officers concerned.

The voir dire: Conclusion

161 The sole question which then remains is whether the judge properly approached his task. It is said that he did not, in that he misread the judgments to which he referred and that he placed the onus on the defendant to call evidence when, as a matter of law, there is no such onus.

162 The answer to this assertion is that the comment of the judge that it was important, where an accused raised serious allegations, to adduce some evidence, must be read in true and full context of this particular case, of the submissions which had been made to him, which we have at some length rehearsed, of the nature of the allegations made, the failure of the defence to identify officers against whom some of the allegations were made, and the fact that the prosecution called such evidence as it reasonably could.

163 It is, perhaps, no coincidence that immediately after the citation of cases in support of his comments, the incident to which the judge refers is the allegation about the mother's inducement and in the circumstances, the failure of the defendant to give evidence was indeed important, because without it there was just no evidence of inducement. But that aside, this was a decision by a highly experienced judge, well aware of the true test for admissibility, and that is evident, if evidence be needed, from his express recitation, at the outset of his ruling, of the test laid down in Ibrahim v R [1914] AC 599, and from the fact that he ruled inadmissible in the same ruling, because of "some uneasiness", statements made in the case of D8. He said in his ruling that he had considered not only the evidence, but also submissions, which we must take to include the explanations given by counsel for the failure to call further evidence. Such police evidence as had been called he accepted, in the case of D10, as true.

164 We think it clear enough that what the judge was saying in the case of D10 was that, since he accepted the evidence of the officers who were called; that they did not support the assertion made that the mother had made an inducing comment; that there was no identification of one officer who is said to have visited the cell and no realistic way in which the prosecution could identify him; that the assertion against the other officer had been negated; then, in the absence of evidence from the defendant or someone on his behalf, the defendant could hardly expect the prosecution case to be undermined. In the particular circumstances of this case, whilst of course there is no burden on a defendant to prove his allegations, we are satisfied that that is not what the judge was saying. He was saying that, in the absence of evidence from the defendant, a mere allegation, which the prosecution was in no practical position to rebut, remained just that, a mere allegation; and that given that the prosecution was in no practical position to rebut it, and that the reason for not calling evidence had been explained to him, the failure to call evidence did not raise suspicion in his mind, and neither did the making of a mere allegation. What raises suspicion is the failure to call evidence in the face of an allegation where it is possible to call that evidence. If it is not possible, it is not to be thought that an allegation of itself, no matter how vague, or unidentifiable the targets, can take the place of evidence.

Grounds 3 and 4: Failure to put the case

165 D10 gave evidence on the general issue. He admitted that he had punched Ah Kai, and that he had kicked him forcefully several times. He denied "forking" Ah Kai with a stool, or using a bi-pole to hit him, or using a belt to strike him. He said he left some time after 10pm but was called back. After he went back he saw D6 arrive with water pipes and he, D10, engraved his name upon one of them. D6 went out and returned with another pipe that was sawn into two, and he then saw D1 strike Ah Kai with the pipe. He had not foreseen that anyone would use a pipe to strike Ah Kai, nor that anyone would use a weapon to attack Ah Kai's head. He himself never used a water pipe. Later, someone took up a pole and hit Ah Kai with it. D4, he said, was the last person to strike Ah Kai.

166 In our judgment, the judge fairly left the essence of D10's case to the jury. He told them that D10 accepted hitting and kicking the deceased, but had denied any other participation, and denied the acts attributed to him by the other witnesses and by his own alleged statements to the police. The judge reminded the jury of all the specific and important denials, of the incidents in which he, D10 had admitted complicity, and in particular of his denial that he was involved in any way with the pipe assaults. He reminded them also of D10's evidence that the last person to strike Ah Kai was D4.

167 Mr Whitehouse complains that the judge did not remind the jury that D10 had said that he did not foresee the use of pipes or the use of weapons to hit Ah Kai's head. There was no need to make specific reference to either. If D10's evidence, of which the judge did remind the jury, was or might have been true, there was no need for such a reminder. D10's evidence was that he was simply not involved at all, save to a minor degree at the very outset of the evening's events; not that he was involved at the second stage or in any of the serious attacks but that, to his surprise, the others went further then he envisaged. It was clearly implicit in the evidence of which the judge did remind the jury that D10 was saying that he did not anticipate what would happen, and that he was not party to it.

168 It is said that the judge did not remind the jury that Dr Dickens had said that the most likely cause of death were head blows, so that this was especially important where D10 says that the stick use by D4 was the last blow. The answer to this is that the judge did tell the jury (p.8) that Dr Dickens had said that the assault in the absence of the stick was not likely to have caused death.

169 Then it is said that the judge was "wrong to have withdrawn Count 2 of causing grievous bodily harm against D10 from the jury". As framed, the point is unclear, because Count 2 in the lesser form (merely causing grievous bodily harm) was not withdrawn from the jury in the case of D10. Rather, as we understand it, it is suggested that the judge should have left to the jury Count 2 in its original form (causing grievous bodily harm with intent) on the following basis: that even if D10 did take part in activity with intent to cause the victim grievous bodily harm, there was still the chance that that activity itself did not cause death, and that D10 did not foresee that D4 would use a stick to hit Ah Kai over the head. This is unrealistic, and judges are not expected to leave such scenarios to a jury. It was made perfectly clear that if this applicant's evidence in court was or might be correct he had to be acquitted of murder and convicted only of assault occasioning actual bodily harm, as were others who assaulted with fists and kicks and no more. If, on the other hand, the prosecution case against D10 was true, then it would follow that he had been using a water pipe to beat Ah Kai when Ah Kai was already in very bad shape. Any contention that the use of a stick went somehow beyond what was contemplated is as far divorced from the real world as is the contention that the stick alone caused death. The course taken by the judge did not enure to the disadvantage of D10 in any way.

170 There is made an allied point about the judge's direction, in which it is said that the judge effectively withdrew from the jury the issue of cause of death, by saying to the jury that the issue in the case was whether a defendant intended to cause serious bodily harm when he assaulted Ah Kai. This, yet again, is to take a sentence in isolation, and out of context. It is necessary to cite but one passage from the summing-up:

"It is not necessary for the defendant you are considering to have himself or herself by his or her own hand inflicted an injury contributing to death or murder. In respect of each defendant, what you have to decide is whether it has been proved beyond reasonable doubt - that is, whether you are sure - that the defendant you are considering intended grievous bodily harm to Ah Kai to take place during the beatings; and he or she was a party to a joint enterprise or plan to cause Ah Kai grievous bodily harm; and he or she was present at the time of the beating. It would be murder if Ah Kai died as a result of injuries which he sustained from the beating or beatings." (tr. p.17)

Ground 5: Records of interview supporting accomplice evidence

171 In dealing with the jury's approach to the witness Shek, the judge reminded the jury that Shek was said to have a motive for giving evidence, namely, the hope of a lesser sentence. Shek had given evidence for three weeks, and had been accused of lying and of making up a story against the other defendants. The judge told the jury that Shek indeed had something to gain by giving evidence, and that his evidence had to be looked at with care. The judge did, however, remind the jury that there were features, they might think, that showed that Shek could hardly be lying about everything. So, for example, none of the defendants denied being at the premises on the night in question when Ah Kai was beaten up. So, too, the judge said:

"Now, of course, bearing in mind here the admissions of the defendants or their presence in the flat of Sam Shuk, what SHEK Tsz-kin has told you in his evidence could not have been all lies; they could not have been all inventions. Of the many incidents he told you, you also find them being mentioned in the statements of various defendants and their evidence in the witness box. What the defendants said about this incident, either in their statements to the police or in their oral evidence, you may think lends some support to SHEK Tsz-kin's evidence." (tr. pp. 20-21)

172 Again a little later, he told the jury that in taking care about the evidence of an accomplice, such as Shek, they should try to see if there was independent evidence to confirm what Shek had told them about the events:

"And in this connection, you can look at the evidence of the defendants in the witness box, their statements to the police, the evidence of LAU Chi-man and TSE Chi-wai to see if they also mentioned the same events." (tr. p. 21)

173 The complaint is made that by these comments, the judge was allowing the jury to look at written statements made by one defendant and use it in the case against another.

174 We think that the judge should have qualified what he said by making it clear that such support as could be gleaned from statements could only provide support of Shek's evidence as against the person who had made the statement. But in the event, we do not think that there has, in the round, been a material misdirection in this regard because:

(1) It was made very clear to the jury after this passage that the statement of one defendant could not be used as evidence against another;

(2) There was in any event testimonial confirmation, that is, confirmation by oral evidence at trial, of the evidence of Shek; and

(3) The precise implication which counsel now draws from this one passage is unlikely to reflect the impression left, because no complaint was made about the matter at the end, or during the course, of the summing-up. That is not to say that the absence of a complaint is of itself fatal to the argument. But it is a factor in this case, not least when so detailed and so many were the suggestions by counsel to the judge for corrections, that one counsel was moved to say that the judge must have become "sick to death" of suggested corrections.

175 As to the first point of these three points, it is obvious that the jury had been reminded a number of times, by counsel in speeches, and by the judge before the summing-up, no doubt in the course of evidence, that a defendant's statement to the police could not be used against any other defendant. The judge said the following during the summing-up, and after the passage about which complaint is made:

"Counsel and I have already, during the course of the trial, told you a number of times about the use you can make of a statement to the police. I will just repeat it again for your benefit for it is very important.

What a defendant said to the police is only to be used when considering whether the charges have been proved against that person, the person who made the statements. It is not to be used, subject to what I will say in a moment, it is not to be used in respect of another defendant. You will not even look at statements of different defendants to the police in order to consider how far they agree or disagree with each other." (tr. pp. 41-42)

176 We are satisfied that such implication, if any, as might have been drawn from the judge's first comment about which complaint is made, was amply corrected by the clear and emphasized directions which followed.

Ground 6: Failing to mention Shek's lies

177 The argument here arises from an episode in which Shek was caught lying about telephone calls allegedly made by D10. It is said that the judge should have reminded the jury about this lie, and that the result is an unbalanced approach by the judge to the testimony of Shek. This is a weak point. The judge had made it clear that he would not mention all the evidence. He gave a warning about the danger of relying on Shek's evidence, and of the danger that he might have exaggerated his evidence. That was sufficient. Given the nature of the evidence omitted by the judge and the direction he gave we do not think that this complaint carries weight and, again, we note that it clearly was not an omission of such significance as moved counsel for D10 to ask the judge to say something about it.

D10: Conclusion

178 This analysis exhausts the grounds advanced by D10. For the reasons we have given, none leads us to conclude that his conviction was unsafe or unsatisfactory and, in the event, his application for leave to appeal against conviction is dismissed.

CONVICTIONS: SUMMARY

179 It follows that the applications of D1, D4, D6, D8 and D10 for leave to appeal against conviction are dismissed; but that D3 is given leave to appeal, and that his appeal succeeds. In the case of D3, his conviction is set aside, and we substitute a conviction of inflicting grievous bodily harm.

SENTENCE

180 Section 2 of the Offences against the Person Ordinance, Cap 212 provides as follows:

"Any person who is convicted of murder shall be imprisoned for life. However, if it appears to the court that a person convicted of murder was under 18 years of age at the time of the offence, the court has a discretion as to whether the person should be sentenced to imprisonment for life or to imprisonment for a shorter term."

181 Section 67B of the Criminal Procedure Ordinance, Cap 221 provides that:

"(1) When imposing a discretionary life sentence on a person for an offence, the judge must specify as part of the sentence a minimum term that the person must serve for the offence.

(2) If, when imposing an indeterminate sentence of imprisonment on a person for an offence, the judge is of the opinion that there are matters relating to the person or the offence which should be recorded for the purpose of reviewing the sentence in the future, the judge must make a report in writing to the Chief Executive specifying those matters."

182 The relevant sentences imposed by the judge on 30 January 1999 were as follows:

D1: At the time of the offence he was aged not quite 18 years. The judge sentenced him to life imprisonment, but he made no determination as to the minimum term to be served. On Count 3, he was sentenced to a term of three years' imprisonment to run concurrently with the life term.

D3: He was aged 17 years at the time of the offence. He was sentenced to a term of 22 years' imprisonment on Count 1, and to a term of four years' imprisonment on Count 3, to run consecutively to the sentence imposed in relation to Count 1; a total, therefore of 26 years' imprisonment.

D4: He too was aged 17 years at the date of the offence, and he was sentenced to life imprisonment. There was no determination made under section 67B of the Criminal Procedure Ordinance as to the minimum term to be served. He was also sentenced to three years' imprisonment in relation to Count 3, to run concurrently with the sentence on Count 1.

D6: He was aged 16 years at the time of the offence. On the murder count he was sentenced to life imprisonment, but with no determination made as to the minimum term. He received a term of three years' imprisonment on Count 3, to run concurrently with the term imposed for Count 1.

D8: He was aged 14 years at the time of the offence, and was sentenced to a term of 20 years in relation to Count 1, and to three years' imprisonment in relation to Count 3 to run consecutively, making a total of 23 years.

D10: He was aged 17 years at the time of the offence, and he was sentenced to life imprisonment in relation to Count 1 but, again, with no determination as to a minimum term; and to four years' imprisonment, concurrent, on Count 3.

183 Those who received discretionary life terms appeal on the basis that the judge ought not to have imposed life terms and that, in so far as he did, he failed to exercise the duty required of him to state a minimum term, under section 67B.

184 That the judge failed to perform the duty required of him by section 67B in the cases of D1, D4, D6 and D10 is not in dispute. The question which arises is whether this is a function now to be performed by this Court, or whether the matter is to be remitted to the trial judge for him to perform the task which he did not perform. Counsel for some of the defendants have suggested that the judge is functus officio, that sentence has been passed, and that it is therefore not lawful to send the matter back to the trial judge. Mr Bruce, for the respondent, says that sentence is incomplete, and that the matter must be sent back.

185 Before addressing that issue, we pause to comment that we are astonished that no counsel took the trouble to remind the judge of the duty which he had omitted to perform. One counsel in the course of addressing the judge in mitigation did mention the section, but it is clear that, in sentencing, the judge overlooked the requirements of the section in relation to the defendants to whom it applied. That is not entirely surprising, given that he had the unusual task of sentencing 13 defendants. Yet no one thought of drawing his attention to the section. We simply cannot understand how this could have happened. Counsel for the prosecution ought to have been aware of the omission, yet said not a word. Far more perturbing is the failure of counsel for the affected defendants to say anything or, if they only remembered once the judge had left court, to request that he return to deal with the matter. We wonder how they could possibly have forgotten, for one assumes that each counsel whose client had just been sentenced to life imprisonment went to see his or her client immediately afterwards. What did they say to their clients about the life terms imposed? What did they tell them about the terms they might have to serve in practice, or about their chances of a successful appeal, which did not alert them to the fact that a crucial question in their clients' cases had not been addressed? This ought never to have been allowed to progress to the stage which it has reached before this Court, and we repeat that we are astonished that counsel allowed it to.

186 By section 80 of the Criminal Procedure Ordinance, "sentence" "includes any order made by a court in dealing with an offender, including a hospital order".

187 The power to appeal sentence is conferred by section 83G of the Ordinance which states that:

"A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence, whether passed on his conviction or in subsequent proceedings."

188 Section 83I(3) of the Ordinance says that:

"On an appeal against sentence the Court of Appeal, if it considers that the appellant should be sentenced differently for an offence for which he was dealt with by the court below, may-

(a) quash any sentence or order which is the subject of the appeal; and

(b) in place of it pass such sentence or make such order as it thinks appropriate for the case (whether more or less severe) and as the court below had power to pass or make when dealing with him for the offence."

189 Counsel for D3 and D8 did not support the position of counsel for the other applicants. They said that they wanted the matter remitted to the trial judge because he, as the person who had heard the evidence over such an extended period, was best placed to assess the minimum terms which should be served by the applicants in respect of whom section 67B applies, and that if this court did not remit the matter, the defendants would be deprived of the benefit of the appellate process, which might, for example, embrace arguments that there was an unjustified disparity between sentences imposed. We agree that there is much to be said for remitting the matter to the trial judge, if that is in law permissible. Clearly, he is better placed than is this court to give effect to the "feel" of the case, and of the role and character of each applicant.

190 We do not think that this is a case in which the judge is functus officio in respect of the statutory obligation in question. The situation is not to be equated with one where a judge has passed a sentence entrusted to him by law but which is on an erroneous factual basis, or is not in itself justified by law. In such a case his authority is exhausted because he has made a decision which he is required to make. In Jowitt's Dictionary of English Law, 2nd Edition, Vol 1, p.840, citing re VGM Holdings [1941] 3 All ER 417, functus officio is defined thus: "(having discharged his duty) 'an expression applied to a judge who has given a decision or made an order or award so that his authority is exhausted'." The problem in the present case is that he has not discharged the duty which the Ordinance imposed upon him. It is not a question of refusing to discharge it, or of discharging it in a manner not authorised by law, or of discharging it on the wrong factual basis. It is as if, after conviction, the judge had failed to pass sentence in relation to a particular count upon an indictment, because he forgot to do so. The fact that he had purportedly completed his task by leaving court and by drawing some order would not, in relation to that count, render him functus officio.

191 In the circumstances, we have decided to remit the matter to the trial judge so that he might in the cases of D1, D4, D6 and D10 perform the duty required by section 67B(1). In this particular case it is singularly appropriate that he, and not this Court, should perform that function. We make an order accordingly.

192 There is an application in the case of D8 for leave to appeal against sentence. We do not think it appropriate to deal with that application until after the section 67B determinations. D8's application will therefore be heard on a date to be fixed after those determinations.

193 D3 also seeks leave to appeal out of time against sentence. Since we have quashed the conviction for murder in his case, it follows that the sentence imposed upon him in relation to Count 1 must be set aside. That leaves the sentence to be imposed for the offence of inflicting grievous bodily harm; as well as the sentence of four years' imprisonment which was imposed for preventing the lawful burial of Ah Kai, a sentence ordered to run consecutively to that imposed in relation to Count 1. His application for leave is directed at that four-year sentence as well. In the case of D3, too, we shall adjourn the application for leave to appeal against sentence to a date to be fixed after the section 67B determinations.