THE QUEEN v. LI SHUET FONG

IN THE COURT OF APPEAL

1986, No. 249
(Criminal)

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JUDGMENT

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Silke, J.A.:

1. On the 14th of May 1986, Li Shuet Fong was convicted of murder and sentenced to death. She now seeks leave to appeal against her conviction.

2. Mr. Sedgwick, who appears for her before us, has argued two grounds. The first: that she be granted leave to call fresh evidence, the purpose being to show that she did not murder Lau Shing Lung and that she was in no way criminally responsible for his death; the second: an alternative, that the jury on a proper consideration of the statements made by the Appellant, ought to have found her not guilty of murder but guilty of manslaughter and that, therefore, the verdict of the jury is unsafe and unsatisfactory.

3. It was the Crown’s case at trial that the deceased was last spoken to at about 9:00 o'clock on the evening of the 29th of September 1985. After that attempts were made to contact him by telephone which were unsuccessful. He lived alone in a sparsely furnished flat in On Lai Building in Tuen Mun having rented that flat in May of 1984. On the 8th of October, neighbours noticed an unpleasant smell. The police were informed and they together with the Fire Services Department broke into the flat through the locked metal grille and the unlocked wooden door. Upon entry, it was seen that the bedroom door was slightly ajar and in that bedroom was found the decomposed body of the deceased lying upon the bed.

4. There was a large quantity of blood spattered over the walls and on the curtains. The major portion of that blood was at the wall adjacent to the bed.

5. Post-mortem examination fixed the time of death as about one week prior to the 8th of October.

6. The body had numerous and severe injuries. These, as described in evidence by Dr. Beh Swan Lip, were, first, two cut wounds, measuring 13cm. and l2cm. long over the left front and side of the lower neck, which had severed the trachea at the lower border of the voicebox, the left common carotid artery and the left jugular vein. The blows caused two chop marks in the left front of the 8th cervical vertebra and they fractured the attached left transverse process. There were other chop wounds: a shelving 15cm cut long over the outer side of the right shoulder, chipping the underlying head of the right arm bone: a 8cm. long wound over the outer side of the right upper arm cutting the underlying muscles; a superficial cut 4cm. loop over the front of the right axilla; a 2.5cm. long over the inner side of the right mid-forearm; a wound 5cm. long over the inner side of the right lower forearm, which severed the underlying muscles and tendons and caused a superficial chop mark on the underlying forearm bone; a shelving wound 7cm. long over the inner right side of the little finger and palm. A wound 18cm. over the front of the left upper chest and shoulder, which caused a chop mark across the inner end of the left collar bone; a superficial wound 13cm. long just below the left collar bone; two wounds 7cm. and 10cm. long over the back of the right shoulder, which caused two linear fractures of the underlying shoulder blade; a wound 9.5cm. long over the back of the right lower chest, which caused two superficial chop marks on the underlying 9th and 10th ribs. The cause of death was multiple cut wounds with injuries to the trachea and the neck vessels.

7. The doctor was questioned as to the amount of force he would have thought necessary to cause the wounds, which he described. His answer was that this depended upon the weapon used. If it were a beef knife tremendous force would be needed. If the object were heavier, a chopper, moderate force would be sufficient. Generally he thought the force to be from moderate to heavy. A metal chopper 22cm. long, which was described to him, could have inflicted the injuries. The amount of force necessary would have been moderate to heavy but not extreme. In cross-examination, he stated that if the weapon were the 22cm. chopper then anyone in Court could have inflicted the injuries.

8. It was his further opinion that, from the blood spray pattern on the walls and from the photographs he had seen of the position of the body, the deceased had either been on the bed or had been half on or half off bed when the wounds were caused. Had the wounds to the neck been caused when the deceased was standing up then he would have expected the blood sprays to be very much higher up in the wall than in fact they were.

9. Based upon this evidence and the Appellant's statement, the-Crown asked the jury to draw the inference that the deceased was asleep on the bed at the time when he was attacked and, because many of the injuries were to the right hand side of his body, that he had turned over upon being first attacked and had tried to protect himself.

10. In the course of the police investigations, interviews were sought with anyone known to be associated with the deceased. One of the persons interviewed was the Appellant.

11. On the 16th of October, a party of police went to her home and asked her if she would be good enough to go to the police station to talk. She agreed. At the police station, she was interviewed by a police constable with a woman police constable present. The interviewing constable, DPC16513, commenced the interview at about a quarter to seven in the evening. He stated who he was and referred to what he described as "this case of murder". The Appellant was asked if she was willing to answer questions and she replied that she was. She asked the constable to write down her answers on her behalf. Questions were put to her as to her name, age, occupation and residence. She was asked did she know the deceased to which she replied that she had known him when she was very young as they lived nearby. Since September or October of 1984, when he had moved into a house several houses away from hers, she had come to know him better and that they had good feelings towards each other.

12. After a visit to the toilet by the Appellant, the interview continued and she went on that the deceased and herself had become a courting couple and had had sexual intercourse. This commenced in about October or November 1984. She described her first visit to the deceased's flat as being in about May of 1985. She had been given three keys to the flat so that she could go there on her own. She had stayed there overnight on a number of occasions. Her family, she said; objected to her association with the deceased and she tried to avoid, when they went out together, meeting any acquaintance who could tell her family that she still seeing him.

13. On the 13th June 1985 she informed him that she was going to part company with him and there was a quarrel. Eventually he agreed to their parting but refused to accept back his keys and asked her to coma back to his room to collect some clothes she had left there. She refused.

14. About two weeks after the 13th of June, she did go to the flat. She found her clothes had been packed in a bag. She took them and she left. She retained the keys. She had not seen the deceased again.

15. Enquiries were then made as to her whereabouts on the evening of the 29th of September, the day of the Mid-Autumn Festival. She was asked did she remember what the weather was like on that evening. When asked that question she paused, a pause described as taking 15 seconds, and then said:

“I'd better not lie to you. I killed LAU Shing-lung. I chopped him with a chopper.”

16. The constable, clearly somewhat taken aback, then informed the Appellant that she was being placed under arrest and she was cautioned. He left the room to report to Detective Inspector Yeung Shek Man. The constable and the Inspector returned to the room and the Inspector was introduced to the Appellant. The constable again administered a caution. Following upon caution, the Appellant said she had something to say and stated that she would write that something herself. She then gave a detailed account of the killing.

17. This account started with the statement that when she went to the deceased's flat, at about 10:00 p.m. on the 29th of September, they had a talk and he asked why she wished to separate from him. She asked him not to talk about it. Later he asked to have sex with her which request she refused. She continued:

“He then raped me. Later, I said I wanted to leave. He did not allow me to go away and he even closed and locked the grille and the wooden door. He did not allow me to leave and he hit me. He wanted me to sleep with him overnight. He soon fell asleep. I could not fall asleep. After thinking over for a while, I fetched a chopper from the kitchen and chopped him to death. I then went to the bathroom to clean the bloodstain on my body. Then I took the chopper and his telephone book, and I left."

Having left, she said that she went to a number of beaches including Castle Peak Beach, Kadoorie Beach, Old Cafeteria Beach and New Cafeteria Beach. She discarded the chopper and the keys but could not remember where she had done this. This between 2:00 a.m. and 3:00 a.m..

18. The police gave her a cup of tea at this point and she was told by the constable that he had certain questions to ask her. She agreed to answer them. The full statement was read over to her. She stated its contents to be true and correct and given of her own free will. It concluded at 10:05 p.m. on the 16th of October.

19. At 10:40 p.m. on that day, Superintendent Lo Chu Hung came upon the scene and interviewed the Appellant. He read over the statement to her. He asked her if anybody had taught her how to write it and the Appellant said "No", that she had written it all by herself and that the statement was made of her own free will. She was asked if anybody had threatened her, induced her or forced her to give the statement to which she answered "No”. She was given the statement to read over herself and she was again asked: Was that statement correct? to which she replied in the affirmative.

20. There was a further interview conducted at 11:45 p.m. on that evening. She went into considerable details as to what had happened before she chopped the deceased. She was asked to describe the chopper. She did. She was asked about her clothes and she described them. She also said that at the time she used the chopper, she was wearing brief underwear only.

21. There was yet another interview on the 17th of October at 8:08a.m.. She was asked if she would lead the police to retrace the route which she said she had taken after she left the deceased's flat. She agreed to do this.

22. At 9:10 a.m. on the 17th at her home, which was on the 1st floor of Stone Hut No.5, San Li Uk Tsuen, Tin Sum Tsuen, Yuen Long, she indicated, in the present of her father, where the clothes she had worn that night were. The house: is searched. Nothing of significance was found.

23. She was then brought to the outside of the On Lai Building where the deceased's flat was. She indicated her route up to the flat. She went on to describe again the initial conversation which she had had with the deceased, of his dragging her into a room wanting to make love to her and to her objection to this course. She detailed what had happened to her saying that the deceased forcibly stripped off her clothing and, at a later stage, had thrown them out of the room onto a platform. It was after that she was struck and detained. She detailed again her actions after the deceased had gone to sleep. She went on that she was standing on the left and near the mattress when she chopped the deceased. She said she chopped him on his neck and on various parts of his body but did not know the number of times she had chopped. She stopped when he made no further movement. She gave greater details of what actions she had taken after the chopping such as washing the chopper, taking a bath, wrapping the chopper and putting it in a black plastic bag.

24. The police then took her to Castle Peak Road where she showed where she boarded a taxi en route to the beach at Castle Peak Bay. They, with her, retraced her route there and there she went on reaching that beach and Kadoorie Beach. She said she threw the chopper into the sea at that point.

25. She then led the party to Cafeteria Beach and thence to Old Cafeteria Beach. She said she threw the keys from a rock on the left hand side of that beach into the sea. She described how she did this by removing the keys from a metal ring and throwing the ring and the three keys separately into the sea.

26. On the 18th October 1985, at 9:10 a.m., there was a further interview.

27. On the 28th October 1985, unsuccessful attempts were made by a police diving party to locate the chopper. The admissibility of these statements, including the ones made at the various places to which she led the police party, was not contested at trial.

28. The Appellant elected not to give evidence. I shall come back to this aspect at a later stage but counsel then appearing for the Appellant specifically asked the Court to confirm directly from the Appellant as to whether or not she would call or give evidence. He informed the trial judge that he had given advice but stated that he would like what she had to say on this aspect to be recorded. The judge then explained the courses open to her and ended by saying:

“Presumably you have had advice from your counsel."

To which the Appellant answered “Yes”. She stated explicitly that she did not wish to give evidence nor did she intend to call witnesses.

29. Counsel then appearing for the Crown, in his final address made reference to the allegation of rape contained in her statement. He emphasised that the question of whether or not there was rape was of importance. He touched on provocation and spoke of a cooling off period which, he submitted: clearly emerged from that statement.

30. In his final address the Appellant's counsel made no reference of any kind to the possibility of provocation arising or to the incidents as disclosed in that statement permitting the jury to bring in a merciful verdict.

31. I would interpolate here, for reasons which will become apparent, this comment is not intended as any criticism of counsel's conduct.

32. The trend of the defence closing address was that the jury should look very carefully at the statement and consider did it "pinpoint" the Appellant beyond: reasonable doubt. Mention was made that nothing had been recovered despite the searches carried out. It was suggested that the details given to the police by the Appellant, such as whether the wooden door was or was not closed, were of doubtful accuracy. There were legitimate grounds for doubt about the truth of her statements.

33. In his summing up, the trial judge, to use Mr. Sedgwick's words, “leant over backwards” to bring to the jury's attention provocation arising from the incidents she had detailed. He addressed them fully on manslaughter making such comments as:

“You might feel that whoever inflicted those 13 chop wounds on the deceased must have lost his or her self-control.”

He explained to them the meaning of rape and reminded them, more than once of the contents of the statement underlining the allegation of rape. One of the last things he said before the jury retired to consider their verdict, was that they should consider the issue of provocation and if they found that that it were the girl who caused those 13 chop wounds then she must have been:

“….. in a complete frenzy . So I think you could feel that she certainly lost her self-control.”

He even went so far as to suggest to them that any average, smart, well-educated young girl would have been “absolutely outraged" by the behaviour described by the Appellant and advised them that such a person:

" ..... would have been provoked to lose her self-control."

34. The Appellant can have no complaint about the directions the jury were given on what was at best the exculpatory context of her admission to a killing.

35. This appeal was first set down on the 28th of August 1986. On the 27th of August, a Mr. Ng Kam Tong went to a police station and made a confession that it was he who had carried out this killing. The hearing of the appeal was adjourned because of this development and to give time for his admissions to be investigated.

36. The matter was restored before a differently constituted Division of this Court and, as full argument as to the admissibility of fresh evidence was required and so that Mr. Ng could be interviewed by the defence team, it was further adjourned.

37. At this hearing, we have before us a Notice of Motion which moves us to admit, under the provisions of section 83V of the Criminal Procedure Ordinance, the evidence of the Appellant, that of Mr. Ng and that of six other witnesses.

38. Mr. Sedgwick concedes that all this evidence was available at trial. He further concedes that he cannot rely on any “reasonable explanation” for its not having been called at that time. He seeks, therefore, to bring himself within the ambit of the discretion conferred upon this Court by section 83V(1)(b). He accepts that the provisions of section 83V(2)(a), which require that the evidence is likely to be credible, would have been admissible in the proceedings from which the appeal lies and is relevant to an issue which is the subject of the appeal here are applicable.

39. We have had placed before us, and at our request, a large number of authorities which have bearing on this unusual application and on the procedure to be adopted.

40. Our first concern was as to whether or not we should hear oral evidence at all, or rely only on affidavits, before coming to a decision on the "likely to be credible” aspect of the matter.

41. We are assisted in this by Parks[1] where oral evidence was taken of a prospective witness and, in particular; by Beresford[2].

42. In Beresford², Sachs L.J. in delivering the judgment of the Court said at page 148:

"Having read the affidavit of Winstanley, it appeared to this Court that it would be difficult, if not indeed impossible, to say that there was within the meaning of the words of the statute a reasonable explanation for the failure to adduce that evidence at the trial. On the other hand, it was thought that justice would be better served if an opportunity was given for Winstanley to give his evidence in the box so as to see whether there was any real substance in what he said, upon the Court applying the proper tests as to whether his evidence was likely to be credible.”

43. We are here asked to exercise the discretion given to us by section 83V(1) and to bear in mind our powers under section 83 to allow an appeal if we think that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory.

44. In this very unusual case we thought justice to be better served were we to give an opportunity to the Appellant, to Ng and to the other witnesses to give oral evidence. The test we posed ourselves is to consider, first, if there is any real substance in the evidence before we conclude whether or not the evidence is "likely to be credible”.

45. In the Appellant's case we were very conscious that by taking this course we would give her a bite of a cherry which she had rejected at trial.

46. Here Mr. Duckett indicated that he also wished the Appellant to go to the box so that he could ask us to test her evidence against that of Ng on the issue of credibility. It was with some reluctance, given her refusal to give evidence at her trial, that we permitted her to give her evidence.

47. In taking this course we were not neglectful of that which Edmund Davies L.J. said in Stafford and Luvaglio[3]. There the Lord Justice had made reference to the more liberal attitude which has prevailed in the Courts since the widening of the scope of section 23, similar in terms to our section 83V. We went on, and, these words have considerable moment:

"Nevertheless, public mischief would ensue and legal process could become indefinitely prolonged were it the case that evidence produced at any time will generally be admitted by this Court when verdicts are being reviewed."

48. We are most anxious to emphasize that it will be rare indeed for an applicant to be permitted to give the evidence in this Court which could have been given at trial.

Principles

49. Before considering the evidence which we have heard, it is necessary to set out the general principles which we think, to apply to applications of this kind. The absence of a reasonable explanation as to why the evidence was not given earlier is a factor to be taken into consideration as to whether we should exercise our discretion. The evidence must be relevant to the issue. We accept that here the nature of the evidence is relevant. The acid test is “likely to be credible". Stafford and Luvaglio³ - in the Court of Appeal interpreted the phrase “evidence likely to be credible” as meaning evidence well capable of belief. Park¹ interpreted "credible evidence" in the same way.

50. Were we to be satisfied that the evidence which we have heard comes within the ambit of that definition, we are then left with three options: (1) to hold the evidence as true, admit it and consider it conclusive of the appeal; or (2) to consider the evidence capable of being accepted by a jury though we ourselves are not satisfied as to its truth and order a retrial; or (3) to positively disbelieve it thereby finding it not only incredible but not capable of belief, reject the application and to go on to consider the second ground of appeal. (Flower)[4]. And, overall, to consider whether the conviction is safe and satisfactory.

The evidence

51. Li Shuet Fong said that she made no mention of the part Ng played because she was trying to protect him. She was advised by the clerk of the solicitors firm, then instructed on her behalf, that she did not have to give evidence. She was also told that the offence of manslaughter was a more serious one than the offence of murder. Later in evidence she said that she was not sure if manslaughter was really more serious than murder and became unsure if she were told anything of the sort by the solicitors clerk. She accepts that she was told by her then counsel of her rights to give evidence or to remain silent. But, she went on, he told her it would be better for her not to give evidence. Upon this aspect, we simply do not believe her. The record which we have quoted earlier makes quite clear counsel's anxiety on this question.

52. She then detailed the aspects of her relationship with the deceased and of the events of the night of the killing. After what she described as the “rape”, she said the deceased fell asleep. She then left and he was unhurt. At the mouth of the road to her house, she found Ng waiting for her. She told him of the incident. He suggested that they go to the deceased's flat but she said that they should not do so. He put her into a taxi and, despite her refusal; they did go to the flat. There, after Ng had expostulated with the deceased as to his treatment of her, there was a fight between the deceased and Ng. The deceased went to the kitchen to fetch a knife. He returned with it and chopped Ng. The fight continued, the knife dropped to the floor and Ng picked it up. The fight which had started in the living room continued into the bedroom. She was not aware of what took place inside the bedroom for she herself was outside. After a little while, Ng came back into the living room and told her that the deceased was dead. She was not now clear if she saw any wounds on Ng. Ng put his clothes into a plastic bag into which he also put the knife, a telephone notebook and the keys to the flat. He brought the bag to a garbage collection point outside the flat and left it there. They returned to Ng’s home: She was not clear exactly what time this was. She stayed there with Ng for the night.

53. On the next day, the couple went to the Ocean Park and we have seen photographs which were said to have been taken during that visit. They depict a happy and carefree couple without any obvious sign of being affected by any of the incidents of the night before.

54. She realised the peril in which she placed herself but she took the course she did at trial because she was deeply in love with Ng - a love which she seems to have kept from members for her family. She accepts that, as her relationship developed with Ng, she was still seeing and having intimate relations with the deceased. It was after June that her relationship with Ng developed apace and the decision to marry was taken in August. Her counsel was not informed of any of this.

55. It was pointed out to her that in his statement given to the police on the 27th of August, Ng had said that, upon seeing the deceased to go into the kitchen and fetching a chopper, he had gone into the bedroom. He made no mention of any fight having taking place in the living room. To this, she replied that she had to tell the truth and that her version was the truth, but she had not seen Ng's statement.

56. She had been on bail a short time after arrest and remained on bail for a period of about 4 months. During that period, she saw Ng once. There had been no discussion of any kind about the case with Ng. She did, however, write him a note which no longer exists. After she gave it to him, he wrote on it and returned it to her. This meeting was an accidental one and she made no other attempt to see him. She did not wish other people to know that he had been involved and she did not want the police to follow him and to find out. There is no suggestion that the police were investigating, or were in any way interested in, Ng.

57. When Ng had told her that he had killed the deceased he gave no details of what had occurred in the bedroom. She had given the long description in her statements because “the police questioned me slowly." Further she was protecting Ng.

58. Ng Kam Tong, when he came to rive evidence, was advised of his rights. He had been specifically advised by letter some time ago by those representing the defence that he should consider seeking legal advice and arranging for representation at this hearing. He chose not to take that advice and stated himself to be willing to give evidence concerning the death of Lau Shing Lun.

59. He said that he had first come to know the Appellant 4 to 5 years ago. She was the younger sister of a person with whom he was friendly. He had met the family.

60. Then after some lapse of time, he met her again. He started to take her out. This was in the summer of 1985. Various common friends were aware of the situation. He described the relationship as developing until they were so fond of' each other that they could not let go of each other.

"We got beyond the holding of hands stage.”

61. They were contemplating marriage. At the Ghost Festival in 1985, they had met by arrangement. That was the first time when they had had full sexual relations. The Ghost Festival is about one month before the Mid-Autumn Festival. He was unsure if she were a virgin. They continued to have sex frequently between those two dates.

62. Coming to the Mid-Autumn Festival, he stated himself to have a clear recollection of the happenings on that day. At 10:00 o'clock in the evening, he telephoned the Appellant's, home and was told she was out. He had intended to go out with her and to have some fun. He decided to give her a surprise and he waited for her return. A taxi approached, the Appellant got out and paid her fare. She saw him and she started to cry. She refused to tell him the reason. He scolded her saying that, as they were going to marry, she should tell him the reason. She then informed him that she had been raped by her former boyfriend. Ng asked her to take him to the place but she refused. A taxi came, he dragged her into the taxi and they went to the address of which she told .him. They arrived and both went to the deceased's flat. He scolded the deceased and asked him why he had raped the Appellant. The deceased replied that the Appellant was his girlfriend but Ng told him that he and she were going to marry. Ng said:

“When he failed to offer further good reason, he then started to hit me."

Ng was scared. He wanted to hit back but he did not think the deceased was his match in a fight. He intended to leave and forget all about it.

63. At that point, the deceased went into the kitchen, came back with a knife and tried to chop Ng. Ng ran into the bedroom and the deceased rushed in after him. The deceased used the knife to chop Ng. The knife dropped, there was confusion, the deceased squeezed his neck and Ng had difficulty in breathing. He was able to get something from the floor. He was not sure what it was. At that time he was lying on the floor with the deceased on top of him. He retaliated in "self-defence" and hit the deceased and continued to hit him. When the hitting stopped, the deceased fell down. It was only then that he realized that he was holding a knife. He knew that he had done something which had very serious consequences and he described himself as being stupefied and very scared.

64. He went back into the main room where the Appellant was. She saw him, was frightened and cried. He went to the bath room, wiped off the blood and put on some of the deceased's clothing. He then took towels and cleaned the door of the bedroom and many other things. When he had finished, he picked up his own clothing, a small notebook and a bunch of keys and left. He used the keys the Appellant still had to lock the metal door. He went downstairs, asked the Appellant to wait for a moment for him, and threw his own clothes, the knife, the notebook and the keys into a dust bin having first put all these items into a plastic bag. After that, they both went to his home where he took off the deceased's clothing and eventually threw them into a river. He had a bath and he and the girl slept together that night.

65. The next day, the pair went to the Ocean Park "to enjoy ourselves”. He took the photographs which showed them there. The Appellant was still wearing the same clothing she had worn on the previous evening.

66. That night they went to a wedding party in a restaurant. He then took the girl to her home and continued on to his own. After that they had telephone but no personal contact until the girl was arrested. He discovered her arrest from the newspaper and from enquiries he made from her family. He was aware of the reason for her arrest.

67.He described the meeting, while she was on bail, between himself and girl. She passed him a piece of paper. On it she had written that she might have to spend eight to ten years in prison and asked him if he would wait for her until she was released. On that same piece of paper, he wrote a reply to her saying that whatever happened to her, he would wait until she was discharged. He then gave back the paper to her.

68. He was aware of her trial in May of 1986. He learned the result of it from television. He took no action between then and the 27th of August 1986 because he had heard from the family members that she had a chance to “succeed in her case” - that she might be convicted of manslaughter. He said he received another piece of paper from her at some time during this period which told him that she did not want him to go to jail and that she wanted to bear all the responsibility.

69. He heard of the Appeal and, on enquiry of the chances of success, a family member told him that it would be very difficult. It was then, and because he said he was unable to bear the stress any longer, that he surrendered himself to the police.

70. In cross-examination, he became vague on the details of that which had taken place in the flat. His account generally differed markly from that of the girl.

71. When it was put to him that the deceased was chopped 11in a very serious way”, he said that at the time he had lost his senses and did not know that clearly. All he knew was that the deceased had fallen on the bed. It was pointed out to him that a great many blood spots remained on the doors and there was, on the wall of the bedroom, a large patch despite his effort to clean up. He was unclear, because of the lapse of time, exactly what he had cleaned. He was not an impressive witness.

72. The Appellant's elder sister stated that she was aware of a telephone call from Ng on the evening-of the Mid-Autumn Festival. The family knew that the Appellant was going out with the deceased but they might not have known she had become involved with Ng. She herself knew that the Appellant was going out with both the deceased and with Ng at the same time.

73. The Appellant's elder cousin also gave evidence and he spoke of being introduced to Ng by her. He had heard from Ng that he was going to marry the Appellant.

74. A friend-of Ng was called who said that he also knew the Appellant. He had seen her in company with Ng.

75. The Appellant's brother was the final witness and he also gave evidence of an association between the Appellant and Ng. He had never discussed the Appellant’s arrest with Ng though he did on occasions receive telephone calls from him asking what was happening to the Appellant. They had discussed the provision of legal representation. Ng suggested that he might be able to introduce a solicitor to him. He did not do so.

76. After the conviction, Ng wanted to know why the case had developed to the stage where she was convicted and sentenced to death. An appeal was discussed. After legal advice was obtained he discussed this with Ng. He told him the advice was that there was a chance of success. Later, having had further legal advice, he told Ng, when asked, that the chance of success on the appeal was equal to “zero”. Ng said nothing.

77. In considering the course which we should take, we have borne in mind the spontaneity of the Appellant's confession to the killing of Lau, the obvious skepticism of the police at the time that led to her being asked to confirm its truth on several occasions. She did so confirm adding more detail as she went on. Those details were considerable and tallied with the medical evidence. We appreciate, however, that the medical evidence was not tested in the way that it might have been had the new story been before the Court at the time of trial.

78. The failure of Ng to come forward, despite being aware that, at the very least, the girl might go to jail for eight to ten years was not satisfactorily explained. If his evidence has substance this was the girl he was going to marry and who was going to go to jail for a very lengthy period for an act for which he was solely responsible. He have considered the evidence which the Appellant has given to us. We have taken that into account as well as the evidence of Ng in evaluating credibility.

79. We find ourselves with a positive disbelief in the fresh evidence presented to us. We think it to be incredible. Further that it would not, had it been presented at the proper time, or were it to be presented at a fresh trial, affect the verdict of the jury.

80. In those circumstances, the applicati6n for leave to call fresh evidence is refused.

81. Mr. Sedgwick has asked us in relation to the second ground to accept the exculpatory portions of the Appellant's confessional statement as being evidence of their truth. We are not disposed to do so. They were there for the consideration of the jury so that they could evaluate the context in which the incriminatory admissions were made and it was for the jury to evaluate the admission and the unsworn explanation or excuse as they thought fit - Leung Kam Kwok[5]. These aspects were very fully canvassed before the jury. The trial judge presented them with a clear invitation to find manslaughter. This the jury refused to do. They were entitled to take that course. We do not think that this ground leaves us with any cause for concern.

82. Having considered all the circumstances of the case we do not think this conviction to be either unsafe or unsatisfactory. The appeal is dismissed.

83. We are obliged to counsel for their assistance in this matter.