HKSAR v. KWOK KA MING AND OTHERS

CACC 75/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 75OF 2006

(ON APPEAL FROM HCCC NO. 103 of 2005)

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J U D G M E N T

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

Background

1.  The appellants (D1, D2, D3 and D4 respectively) were convicted on 17 February 2006 of murder following a trial before V Bokhary J and a jury. Each of them now seeks leave to appeal against conviction.  We can indicate from the outset, for the various reasons provided in this judgment, that we have granted leave to appeal to all of them.

2.  The facts were relatively straightforward and the prosecution’s case depended to a large extent on the version of events put forward by each of the appellants in their police interviews.  None of the appellants gave evidence at trial.

3.  By way of background to the killing, much of which was contained in the Admitted Facts, the deceased operated a wholesale fruit market business in Yaumatei as a consequence of which he was in the habit of getting up early in the morning and travelling to work by the same route.  This involved leaving his home in Tsing Yi and walking to Maritime Square to the entrance of the Airport Express Station situated there.  He would then routinely use the pedestrian footbridge after leaving the station at about 2.30 am, and take the escalator down to a taxi-stand in order to travel to Yaumatei.

4.  On 9 October 2004, having apparently followed his usual routine, the deceased was found at about 2.30 am by a member of the public (PW1), close to the escalator near Maritime Square, in a pool of blood.  At 2.38 am, police received a 999 call and an ambulanceman who attended the scene could find no pulse or breath and he noted that the deceased’s body was no longer bleeding.

5.  Death was certified by a doctor shortly afterwards.  On examination, the deceased was found to have a neck wound measuring 5 centimetres in length.  The weapon (Exhibit P3) which had caused the injury, described in evidence as a ‘butterfly’ knife, was found nearby and on scientific examination this was found to have the deceased’s blood upon it.

6.  Dr Poon Wai-ming, a forensic pathologist, conducted a post-mortem examination on the body of the deceased.  The judge summed up this evidence by reminding the jury that in Dr Poon’s opinion death was due to rapid blood loss from the complete severance of the carotid artery and jugular vein on the right side of the neck.  The wound was consistent with having been caused by a stabbing instrument with a sharp cutting edge such as the knife, Exhibit P3.  The judge’s summary of the remainder of Dr Poon’s evidence can be shortly described.  There was a zigzag-shaped wound to the deceased’s neck consisting of four limbs with three sharp turns to a depth of 9 centimetres.  Dr Poon noted that the blade of Exhibit P3 measured 9.3 centimetres in length.  The weapon had penetrated a muscle on the right front of the neck before cutting the right internal jugular vein and carotid artery.  It had then cut through part of the cartilage of the voice-box and into the muscular tube behind the voice-box before causing oblique cuts to the soft tissue just in front of the spine.  These two oblique cuts were nearly parallel and about a centimetre apart meaning that there had been more than one horizontal movement of the knife blade inside the body.  This finding corresponded with the multiple limbs of the zigzag wound to be seen on the neck.  Dr Poon stated that this indicated a repeated horizontal motion of the knife-blade inside the body which he described as a twisting and rocking motion of the stabbing instrument.  This, he said, could have been due to the knife being actively moved in the wound by the assailant or by the body moving relative to the knife or by a combination of both.

7.  Significantly, in the light of D1’s description of the incident in which he confessed to the police that he had wounded the deceased, Dr Poon asserted that the injuries were not caused by a ‘slash’ or a ‘flick’ of the knife but by a stab with moderate to severe force.

8.  The prosecution alleged that D4, the “sworn mother” of D1, had responsibility for instigating the attack on the deceased and then, immediately prior to the killing, supplied D1 with information as to the deceased’s movements when he was in the vicinity of Maritime Square.

9.  A few days before the killing, D4 had spoken to D1.  Originally, she told him that she wanted the deceased to be taught a lesson and hit with a rod so that he would be unable to go out.  After D1 had agreed to the proposal, D4’s account was that D1 telephoned her on the night of the killing to say that he had bought a knife and she had replied “okay”.  Later, having learnt from D1 that the deceased was nowhere to be seen, she said she would telephone the deceased to ask if he had yet gone out.  She then explained to the police how she “taught” D1 how to find the deceased near Maritime Square.  She told D1 to “pull off his chain for [her] and teach him a lesson”.  She telephoned the deceased and informed D1 that the deceased “would be going down there.  It is almost time.  He is now in the toilet”.  In short, the case against D4 was that, in the knowledge that D1 was carrying a knife intending to teach the deceased a lesson, she supplied D1 with information about the deceased’s movements so that D1 could carry out the attack.

10.  D1 admitted to the police that he had killed the deceased with a knife he had purchased just before the attack.  He also bought gloves and a red, long-sleeved T-shirt which he was wearing at the time of the attack.  His purpose had been to teach the deceased a lesson by “slicing” him a few times because the deceased had scolded and beaten his sworn mother (D4) who worked for the deceased.  He said that the deceased also owed money to his sworn mother.  He received information about the deceased’s movements from D4 and he had engaged D2 and D3 to act as lookouts for him.

11.  D1’s case at trial was presented on the basis that this was a robbery which had gone badly wrong and that the killing was “accidental” in the sense that there had been no intention to cause really serious bodily harm at the time he inflicted the wound on the deceased.  It will be necessary later to go into greater detail about this aspect of the defence case in the context of the ground of appeal raised on his behalf.

12.  D2’s admissions to the police were that he had been asked by ‘Ah Ming’ (D1) to kill a person who had beaten ‘Ah Ming’s’ sworn mother.  He refused to do this but agreed to help as a lookout when Ah Ming cut that person.  He travelled with Ah Ming by taxi to Maritime Square and saw what appeared to be a butterfly knife when it was taken out in the course of the journey.  He was told that the intended victim would be cut but not killed and he agreed to keep watch for the police while this was done.  He had understood that the victim would be cut several times but had not thought he would be killed.

13.  Similarly, there were admissions from D3 to being asked by D1 to act as a lookout to give a warning about the presence of the police.  He referred, at various stages of his interviews, to his understanding that a man who had bullied ‘Ah Ming’s’ sworn mother was going to be “chopped” a few times.  However, he had not seen the knife and, at various stages of his interviews, he gave accounts which described the anticipated attack as not necessarily involving a bladed weapon.  Again, it will be necessary later, in the context of the grounds of appeal specifically raised in D3’s case, to look more closely at the descriptions he gave to the police about his understanding of the nature of the attack to be carried out by ‘Ah Ming’ to which he was allegedly a party.

Grounds of appeal

14.  With this general background, it is possible now to consider the grounds of appeal.

D1’s application – ‘accidental’ infliction of the wound

15.  There was no issue at trial that D1 had caused the wound which killed the deceased.  The ground raised on D1’s behalf by Mr Stirling (who did not appear in the court below) was that the judge had inadequately directed the jury as to “whether the fatal blow was inflicted accidentally” when D1 “attempted to snatch a necklace from the neck of the deceased”.  It was submitted that this issue had arisen from a reading of D1’s interviews (Exhibits P51 and P56) and that the judge had failed both to direct the jury that it was incumbent on the prosecution to negative this possibility and to give any direction as to the position in law if the jury accepted D1’s explanation for the injury or thought it might be true.

16.  This ground of appeal was also relied upon by the other appellants having regard to the judge’s direction that if D1 was convicted of manslaughter none of the other defendants could be convicted of murder.

17.  Before turning to D1’s explanations for his conduct given in two interviews, it was argued on his behalf that when his answers are carefully analysed, they amounted to a confession to a robbery which had not taken the course which D1 intended.  D1, it was submitted, had been saying that he had approached the deceased, knife in hand, and had attempted to snatch the deceased’s necklace.  The deceased, however, had resisted and, in the course of the skirmish which followed, the knife “accidentally” wounded the deceased.  In this sense, Mr Stirling was not suggesting that a defence of pure accident could be advanced either at trial or in these proceedings.  He conceded that the death was caused by an unlawful act, carried out in the course of an attempted robbery, which he contended left open a verdict of manslaughter on a basis which was never properly explained to the jury.  In making these submissions, Mr Stirling echoed the approach taken by defence counsel at trial who had addressed the jury along the same lines when asking for a verdict of manslaughter.

18.  It is necessary, therefore, to look at the detail of some of D1’s replies during his interview before examining the way in which the judge directed the jury on this issue.

19.  D1 described himself as a transportation worker who was employed at the Yaumatei Fruit Market.  He admitted that he knew the deceased by the nickname ‘Tsui Mau’ and that he was going to teach him a lesson.  He had seldom spoken to him but he knew him as someone from the fruit market.  For the purpose he had in mind, D1 purchased a long-sleeved red shirt.  When asked what he intended to do to the deceased, he replied: “I just wanted to slice him with a knife several times … I mean to slash his arms and legs.”  He also bought some gloves and what he described as a ‘balisong’ knife.  He identified the knife (Exhibit P3) which he was shown by the police.  After the purchase of the knife, he made his way to the fruit market where he worked and had a glass of “liquor”.  At about 2 am, he called for a taxi.  The driver had been known to him for about two years.  At that time, he was with two others, ‘Ah Po’ and ‘Ah Yuen’.  He then telephoned his sworn mother and told her that he was now going to help her by giving Tsui Mau a lesson.  After this, he took a taxi to Tsing Yi with the two other men, getting out at Maritime Square.  He told the taxi driver to wait.  The other two men were acting as lookouts as he went to the escalator to wait for the deceased in order “to snatch his necklace and give it to [his] sworn mother”.  As he waited, his sworn mother telephoned to say that the deceased had almost arrived.

20.  Describing the events at the time of the killing, D1 said: “I intended to arm-lock [the deceased] and pull his necklace.  Then he elbowed me once; his elbow landed on my left … then I sliced him accidentally”.  D1 said that he was holding the knife in his right hand.  The deceased had been going down the escalator and D1 said he walked down and “pulled his necklace; then he attacked me once … then I raised the knife ... then I flicked it once; he dashed around madly, I mean he bumped me away”.  When asked if he stabbed once, D1 replied: “Swung wildly.  I had no idea whether I stabbed … him or sliced him … Then I left.”  D1 said that he had no idea that this would be such a serious incident, adding that he did not expect this “could have accidentally caused [the deceased’s] death”.

21.  Describing what he did afterwards, he said that he changed out of the red ‘T’ shirt together with the gloves and jeans he had worn at the time of the killing.  He changed into other trousers and a shirt which he had taken with him and had left in the waiting taxi.  He took the taxi to a place where he could burn his outer clothing and later on he threw away the shoes he had worn.

22.  In a second interview, D1 was asked to demonstrate how he had held the knife at the time of the killing.  He replied:

“

In this way … …… Then I put my hand on his (shoulder) and told him not to move.  [Police: Yes]  He then, he then elbowed me.  After that, I grabbed and swung (the knife) like this.  At the moment when (I) swung (it), he then, then, then bled profusely.  Well, I intended to snatch – –  get the – – get back the chain for my sworn mother.  [Police: Uh]  Then (I) left …”  (Appeal bundle p. 225)

23.  Mr Stirling argued that the effect of D1’s answers gave rise to a clear defence to murder in that, on the evidence of D1’s interviews which the jury had to evaluate, D1 had two intended purposes in mind.  Firstly, he meant to snatch the necklace and, secondly, he intended to teach the deceased a lesson by “slicing his arms and legs”. However, whilst engaged on the first part of his plan, which did not involve an intention to cause grievous bodily harm, he accidentally stabbed the deceased in the neck before he had begun to embark on the second part.

24.  Accepting that the wounding was an unlawful act, Mr Stirling submitted that the judge should have made clear to the jury that in such circumstances D1 may not have formed an intention, when the fatal wound was inflicted, to cause really serious bodily harm to the deceased.  He argued that the judge had failed to tailor her summing up to the facts and had failed to bring home to the jury that this was a basis for finding D1 not guilty of murder but guilty of manslaughter.  The mere recitation of the law relating to manslaughter, which he contended was what the judge had done here, was not a sufficient way of putting this defence to murder before the jury as they may not have understood on what basis they could convict D1 of manslaughter or why they should acquit D1 of murder.

25.  In this regard, Mr Stirling relied on the Privy Council’s decision in Alexander Von Starck v R [2000] 1 WLR 1270 at 1275 where Lord Clyde said:

“

The function and responsibility of the judge is greater and more onerous than the function and the responsibility of the counsel appearing for the prosecution and for the defence in a criminal trial. In particular counsel for a defendant may choose to present his case to the jury in the way which he considers best serves the interest of his client. The judge is required to put to the jury for their consideration in a fair and balanced manner the respective contentions which have been presented. But his responsibility does not end there. It is his responsibility not only to see that the trial is conducted with all due regard to the principle of fairness, but to place before the jury all the possible conclusions which may be open to them on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions. It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them. If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept it, then of course the judge is entitled to put it aside. The threshold of credibility in this context is, as was recognised in Xavier v. The State (unreported), 17 December 1998; Appeal No. 59 of 1997 a low one, and, as was also recognised in that case, it would only cause unnecessary confusion to leave to the jury a possibility which can be seen beyond reasonable doubt to be without substance. But if there is evidence on which a jury could reasonably come to a particular conclusion then there can be few circumstances, if any, in which the judge has no duty to put the possibility before the jury. For tactical reasons counsel for a defendant may not wish to enlarge upon, or even to mention, a possible conclusion which the jury would be entitled on the evidence to reach, in the fear that what he might see as a compromise conclusion would detract from a more stark choice between a conviction on a serious charge and an acquittal. But if there is evidence to support such a compromise verdict it is the duty of the judge to explain it to the jury and leave the choice to them. In Xavier v. The State the defence at trial was one of alibi. But it was observed by Lord Lloyd of Berwick in that case that, ‘If accident was open on the evidence, then the judge ought to have left the jury with the alternative of manslaughter.’ In the present case the earlier statements together with their qualifications amply justified a conclusion of manslaughter and that alternative should have been left to the jury.”

26.  The primary question in D1’s case that we have had to ask ourselves is whether the judge’s directions gave proper regard to the defence to murder which had been advanced in D1’s case.

27.  Mr Zervos SC, for the respondent, submitted in his written argument that the contention that there had been an accidental infliction of the neck wound was in a category described by Lord Clyde in Alexander Von Starck v R as “a possibility which can be seen beyond reasonable doubt to be without substance”.  However, he submitted that the judge had nonetheless put the issue of an accidental infliction of the wound before the jury with appropriate directions in law.

28.  In the summing up, following comprehensive directions as to the burden and standard of proof, the judge pointed out that it had been submitted on behalf of D1 and D2 that the prosecution had been unable to prove the charge of murder against them and that it was for the jury to decide whether to convict of murder or, as counsel on their behalf had argued, of manslaughter only.  She later directed the jury that they could not return a verdict against any of the defendants which was “less favourable” than the verdict they returned against D1 so that if D1 was convicted of manslaughter the others could, at most, be convicted of that offence.

29.  When giving directions as to murder, the judge said as follows:

“	… To convict of murder in this case, you have to be sure of the following things, and the question[s] in regard to each accused are:
	(1)	Are you sure that he or she was party to a joint enterprise pursuant to which the deceased was unlawfully and deliberately dealt a wound which caused an injury resulting in his death?
	(2)	If you are sure that he or she was party to such a joint enterprise, then are you sure that he or she intended that the deceased be caused really serious injury?”  (Appeal bundle p. 10)  (Emphasis added.)

30.  These directions were followed by other standard directions in relation to the crime of murder.  The judge then went into greater detail about joint enterprise stating that it meant:

“	… the conduct of two or more persons who take part together in a course of criminal conduct.  And under the law, each such person is criminally liable for all the acts done in pursuance to the joint enterprise. So he or she is criminally liable not only for his or her own acts, but also for the acts of another participant or other participants done in pursuance to the joint enterprise. He or she will be criminally liable for such acts if he or she intended that they be done. Suppose he or she did not intend that they be done? Even so, he or she would still be criminally liable for them if:
	(i)	they were done in pursuance of the joint enterprise;
	(ii)	they were of a type which he or she foresaw as a possible incident of a joint enterprise; and
	(iii)	he or she participated in the joint enterprise with such foresight.
	If you are sure that an accused was a party to a joint enterprise pursuant to which the deceased was unlawfully and deliberately dealt a blow with a sharp instrument which caused an injury resulting in death, then that accused can, in accordance with my directions, be convicted of murder or manslaughter even though the blow which actually killed the deceased was inflicted by another participant.
	The intent for murder is an intent to kill or … to cause really serious injury. In the direction which I have given you, I have spoken only of an intent to cause really serious injury. This is because - in my judgment and therefore direction to you - there is no evidence in the present case on which you could safely find an intent actually to kill. Of course, it is sufficient for the prosecution's case on murder if you feel sure that these accused participated in a joint enterprise of assaulting the deceased with the intent that the deceased would be caused really serious injury. For murder, the act must be a killing, but the intent can be either to kill or at least to cause really serious injury. Either intent is enough for guilt.”  (Appeal bundle pp. 10-11)

31.  The judge then gave an illustration of the way intent and motive are to be distinguished before moving onto manslaughter directions at which point she directed the jury:

“	In respect of each accused, what if you are sure that he or she participated in a joint enterprise which unlawfully caused the deceased’s death but are not sure that he or she did so with intent to cause the deceased really serious injury? Then the 1st accused and 2nd accused cannot be convicted of murder but only, as they ask, of manslaughter, being the kind that lawyers call ‘unlawful act manslaughter’.  And the 3rd and 4th accused cannot be convicted of murder but only of manslaughter, being unlawful act manslaughter, if:
	(i)	he or she participated in a joint enterprise which unlawfully caused the deceased’s death by an unlawful act in the form of a deliberate assault; and
	(ii)	that unlawful act, namely that assault, was one which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some physical harm resulting therefrom, even though not serious harm.
	You see, members of the jury, for murder it is necessary that the accused intended to kill or at least to cause really serious injury. But for unlawful act manslaughter, that intention is not necessary. It is enough, as I have said, that the unlawful act be one, such as a deliberate assault, which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some physical harm resulting therefrom, even though not  serious harm.
	So, let me now summarise what I have been telling you. I will do so by telling you what the law provides if the facts were as follows. The 1st accused was deliberately attacking the deceased with a sharp instrument. In the course of that attack, the 1st accused was aiming that instrument to enter the deceased, whether in the neck or elsewhere, as a cut. But it entered the deceased’s neck as a stab instead. And that resulted in the deceased’s death. On those facts, each accused can, subject to and in accordance with my directions to you, be guilty of murder or manslaughter. The 1st accused can·be convicted of murder if his intent throughout was to cause really serious injury to the deceased. And each of the other accused can be convicted of murder if:
	(i)	the acts resulting in the deceased’s death, including the fatal blow with the sharp instrument, were done in pursuance of a joint enterprise;
	(ii)	those acts, including that fatal blow, were of a type which he or she foresaw as a possible incident of that joint enterprise; and
	(iii)	he or she participated in that joint enterprise with such foresight and with intent that the deceased be caused really serious injury.
	If the 1st accused did not intend to cause really serious injury to the deceased, then he cannot be convicted of murder but only of manslaughter as he asks, and, in the circumstances of this case, neither can any other accused be convicted of murder. Like the 1st accused, the 2nd accused asks you to convict him of manslaughter. As for the 3rd and 4th accused, each of them can still be convicted of manslaughter if:
	(i)	he or she participated in a joint enterprise which unlawfully caused the deceased’s death by an unlawful act in the form of a deliberate assault; and
	(ii)	that unlawful act, namely that deliberate assault, was one which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some physical harm resulting therefrom, even though not serious harm.
	The count is for the prosecution, if they can, to prove against each accused.” (Appeal bundle pp. 12-14)  (Emphasis added.)

32.  These directions are not criticised in themselves by Mr Stirling whose complaint was that that they failed to put D1’s case into a context which would enable the jury to follow it with ease.  However, this submission is not, with respect, borne out if the summing up is looked at as a whole.  Further, the judge carefully itemised (at pages 35 and 36 in the appeal bundle) the passages in D1’s interviews where D1 had explained to the police his side of the story and, as Mr Zervos correctly remarked, D1’s various references to “accidentally” flicking, slicing or stabbing the deceased were all made in the context of a confession in which D1 had described how he intended to attack the deceased with a knife “to teach him a lesson” by slicing his legs and arms.

33.  Shortly afterwards, the judge returned to matters of law, directing the jury as follows:

“	Both Mr Adams for the 1st accused and Mr Cahill for the 2nd accused dealt at some length with the question of intent. That is natural enough since the 1st and 2nd accused each asks you to convict him of manslaughter only and not of murder, and intent to cause really serious injury is an ingredient of murder but not of unlawful act manslaughter. You will bear in mind that the 1st accused said in his out-of-court statements about being a little tipsy and the evidence of PW7, the insurance agent, that the 1st accused looked drunk when he accompanied him to hospital. Take this evidence into account as you see fit when considering whether you feel sure on the whole of the evidence whether the 1st accused intended to cause the deceased really serious injury.
	Mr Adams and Mr Cahill both pointed to various parts of their respective clients’ out-of-court statements which they put forward as being helpful to their respective clients. These include where each of them spoke of teaching the deceased a lesson. And it is urged on behalf of each of these two accused - the 1st and 2nd - that there is at least a reasonable doubt as to whether the lesson involved an intent less than an intent to cause the deceased really serious injury. You will consider this with care.
	At the same time, you will bear in mind that the evidence relied upon by the prosecution as pointing to a lesson being one which involved cutting the deceased. And you will bear in mind my direction to you that while really serious injury means injury which is really serious, it does not have to be dangerous to life. So it is enough if the intent was to cause really serious injury, in other words, injury which is really serious even if not dangerous to life.” (Appeal bundle p. 46)

34.  In this passage, we note in passing that the judge referred to D1’s description of himself as being a “little tipsy” and to the evidence of another witness that he had looked “drunk”, inviting the jury to take this into account on the issue of intent.  This was a rather more favourable direction than was warranted as it had not been suggested at trial that D1 was unable to form an intent and this was not, therefore, an issue before the jury.  In any event, it might have been more helpful to the jury, having raised the issue in the summing up, for the judge to have gone on to explain that even if D1 was in a ‘tipsy’ condition, he could still be capable of forming an intent and that a drunken intent is still an intent.

35.  Later again, shortly before the jury retired to consider their verdicts, the judge summarised the law relating to murder and manslaughter by reminding the jury, in terms which closely resembled her earlier directions, of the salient features to keep in mind.

36.  In our opinion, the jury had been given sufficient directions on the issue to be decided by them and how this should be approached.  There was no misdirection on the law relating to that issue and nothing of any consequence had been omitted on the facts.  We are satisfied, therefore, that the conviction of D1 can safely stand.

37.  A subsidiary issue, raised by Mr Zervos, was whether the direction to convict D1 of either murder or manslaughter, without giving the jury the further option of acquitting altogether was technically correct in the light of the judgment of this court in HKSAR v Lui Tsi-fai [2003] 2 HKLRD 927 which was later confirmed by the Appeal Committee of the Court of Final Appeal (see: Lui Tsi-fai v HKSAR, FAMC 53/2003).  We are not surprised that the judge directed the jury in the way she did as there was never any prospect of a complete acquittal of D1.  Indeed, his own trial counsel had addressed the jury specifically inviting them to convict of manslaughter.

38.  We are satisfied that there was never any prospect of an acquittal for D1 and, while there was a material irregularity at trial in that the jury were never informed that it was technically open to them to acquit D1 altogether, doubtless couched in terms which reminded them that it had never been suggested that D1 was entirely innocent of all blame, it is apparent that this irregularity was of no consequence in the particular circumstances of this case.

39.  Accordingly, whilst we shall grant leave to D1, treating the hearing as the appeal we will apply the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap. 221.

40.  D1’s appeal is dismissed.

D2’s appeal

41.  Mr Oderberg candidly and rightly conceded that D2’s ground of appeal was wholly dependent upon the success of D1’s counsel persuading us that the summing up had failed to provide adequate directions to the jury on the presentation of D1’s defence and, in particular, that there had been no intention to cause really serious bodily harm at the time D1 killed the deceased.  He accepted, therefore, that if D1’s appeal failed on this point then equally the appeal of D2 must fail.  This is plainly correct in the present case.  D2 knew that D1 was armed with a knife and he had agreed to act as to lookout for D1 while D1 attacked the deceased with the knife.

42.  We shall, however, grant leave in D2’s case for the same reason as we have done for D1.  There was no suggestion at trial that D2 could be acquitted altogether and the judge’s direction that D2 was either guilty of murder or manslaughter caused him no prejudice.  Treating the hearing as the appeal, we shall apply the proviso and dismiss D2’s appeal.

D4’s appeal

43.  It is convenient next to take D4’s appeal against conviction.  Mr Hemmings, whilst aligning himself to the main ground of appeal advanced on behalf of D1 and conceding that the judge had summed up the parts in D1’s interviews where D1 had stated that he had stabbed the deceased accidentally, submitted that the judge had failed to direct the jury sufficiently on the burden and standard of proof when applied to the defence of accident.  This may, he argued, have left the jury under the impression that it was for D1 to satisfy them that the fatal wound was unintentionally inflicted and, in this sense, the onus of proof had inadvertently been reversed.  He suggested that this had possibly denied D4 the opportunity of being convicted of manslaughter and, for this reason, if D1’s conviction for murder was unsafe or unsatisfactory then the same would have to be said about D4’s conviction.  In all other respects, Mr Hemmings accepted that the judge’s directions about D4’s case had been given with complete accuracy.

44.  The case against D4 was that in the knowledge that D1 was armed with a knife and was intending to attack the deceased with it, she supplied D1 with information about the deceased’s movements to facilitate the attack.  The only reason that the argument for D1 or the ‘reverse burden’ argument raised by Mr Hemmings could assist D4 was, as we have already indicated, that if D1 was acquitted of murder and convicted of manslaughter, the judge’s direction to the jury had been that, on the facts of this case, none of the co-defendants could be convicted of anything more than manslaughter.

45.  The judge’s directions on the burden and standard of proof were as follows:

“	Turning to the burden of proof, let me emphasise that it is upon the prosecution throughout. It never shifts. Under our system, in respect of any count against any accused, it is always for the prosecution to establish the accused’s guilt. There is no burden on any accused to prove anything. That is the burden of proof, members of the jury.
	As to the standard of proof, it comes to this: before you can convict, you must be satisfied so that you feel sure of the accused’s guilt. In other words, you must be satisfied beyond reasonable doubt of the accused’s guilt before you can convict. If you are not so satisfied, then you must acquit. But if you are so satisfied, then you are entitled to convict.” (Appeal bundle p. 4)

46.  We have set out already (see: paragraph 29 above) the judge’s directions on joint enterprise in which the judge informed the jury that they could convict of murder or manslaughter if they were “sure that an accused was a party to a joint enterprise [in] which the deceased was unlawfully and deliberately dealt a blow with a sharp instrument which caused an injury resulting in death … even though the blow which actually killed the deceased was inflicted by another participant”.  We have dealt already (see: paragraph 30 above) with the judge’s directions on manslaughter in regard to all the appellants.  It was made abundantly plain in those directions that if D1 “did not intend to cause really serious injury to the deceased” that he could not be convicted of murder “but only of manslaughter … and in the circumstances of this case, neither can any of the other accused be convicted of murder”.  Whilst the judge might have reminded the jury of the burden and standard of proof at some stage during her synopsis of the answers given by the appellants in their interviews, she chose to do this afterwards when saying:

“

Members of the jury, as I have already told you, the accused does not have to prove anything. The prosecution must, on the basis of the evidence which they have placed before you in this court, prove their case against each accused beyond reasonable doubt. That is precisely what the prosecution contends, while the defence disputes it, has been done here.” (Appeal bundle p. 48)

47.  Nothing said by the judge could, in our opinion, have given the jury the impression that, on any aspect of the case for any of the appellants, the burden of proof had shifted to the defence to establish the point that any of the appellants had tried to make.

48.  Accordingly, while we shall grant leave to D4, treating the hearing as her appeal, D4’s appeal is dismissed.

D3’s appeal

49.  Mr Andrew Raffell put a number of grounds before us in addition to the point, common to all the appellants, which we have already indicated was without merit.  In the 1^st ground advanced on D3’s behalf, which was not put forward with any great enthusiasm, it was gently suggested that the judge had not “adequately and fairly” dealt with the “long, inconsistent, rambling and incoherent nature” of the interviews and the ways in which they may have come into existence.  Considerable time at trial was taken up by the suggestions made on D3’s behalf that he had been subjected to pressure to provide answers to the police at a time when he was still affected by methamphetamine (‘ice’).  The judge reminded the jury of the allegations which Mr Raffell had made and about the letter sent by Dr Lin at Lai Chi Kok Reception Centre to D3’s solicitors to the effect that a routine examination of D3 was “positive in amphetamine (ice)”.  We shall say more about this aspect of the evidence in relation to other grounds of appeal.

50.  All that we need to say in regard to this ground is that it was misconceived.

51.  The only grounds which we considered in D3’s case to be arguable were the 2^nd and 3^rd grounds which were closely linked.  In the 2^nd ground, it was submitted that the judge failed to give a balanced summary of the interviews and, in the 3^rd ground, it was submitted that “the judge failed to direct the jury in terms of HKSAR v Mok Tsan-ping [2001] 2 HKLRD 325 concerning the need for the appellant to know that D1 had a knife”.  The last of these grounds, which was not elaborated upon by Mr Raffell in his written submissions, was answered by Mr Zervos in only a single line of his written reply by the comment that it was clear from D3’s out-of-court statements that “he knew that [D1] had a knife and that he was going to use it on the deceased to slash him”.

52.  In order to provide a full answer to this ground, it is necessary to go to the text of D3’s admissions to the police to examine precisely what he did say.  This is rendered more difficult than usual because they contained a number of inconsistencies.

53.  Leaving aside a ‘reconstruction’ at the scene, when D3’s answers were largely inaudible or indecipherable on account of the background noise, in the first of D3’s interviews, on 13 October 2004 (Exhibit P79, pages 617-810 of the appeal bundle), D3 spoke (page 624) about “watching if any policemen were coming, helping Ah Ming by watching if any policemen were around”.

54.  He then went into considerable detail about what he understood Ah Ming (D1) was going to do.  These details were covered extensively in the judge’s summing up to which we shall turn later.  In short, D3 told the police (page 624) that D1 wanted to give “several chops” to someone (page 625) who had “often bullied his sworn mother”.  D1 had spoken (page 633) about wanting to kill the person and he (D3) had told D1 not to do that and, when he had persuaded him not to, D1 “promised [him] that he would just slash (him) a few times” (page 636).  Then (at page 656), D3 set out what he understood D1 was going to do: “To my understanding, one was to rob the guy to money, one was to beat him and one was to chop him”.  D3 agreed (page 657) that he had gone to Tsing Yi to act as a lookout “because [D1] wanted to harass the guy”.  D3 (page 663) had refused to help D1 as a lookout if D1 was going to kill the victim and D3 had said “if yours is a small matter, (we) would not mind to act as lookout for you”.  D3 said (page 664) that he had not thought D1 was “so fierce” and (page 667) that “the most would be … to watch if there was any policeman, to rob (him) of money, to beat him, gave him several blows, or to chop him a few times”.  D3 told the police (page 676) that D1 had said he “wanted to kill” but he did not say that “he certainly would kill”.

55.  As we have already indicated, we shall set out D3’s admissions in this interview more fully when we turn to the summing up but, aside from the confessions made by D3 that he was acting as a lookout for D1 who he knew was intent upon attacking the deceased in one form or another, D3 also said (pages 726-727) about D1 that he “thought [D1] was talking bullshit … that is to rob, to stab, to kill people etcetera. … I thought he was talking bullshit”.  Later, they went to the ‘348’ discotheque (pages 730 – 731) where D3 heard D1 admit that “the man was killed”.  D3 said (page 731): “Then I was very unhappy.  I bloody left the disco”.  D3 denied (pages 756-757) ever having seen the knife which had been used to kill although he had read in a newspaper that a butterfly knife was used.

56.  In the second of his formal interviews (Exhibit P84 pages 844-1025 of the appeal bundle), conducted at 4.00 pm on 14 October 2004 and lasting 91 minutes, D3 provided an account along the following lines.  He explained (page 851) how he had met ‘Ah Ming’ (D1) and ‘Fei Bo’ (D2) some days before the incident at Golden Era Plaza.  He continued:

“	That is, (it) happened that (we) went outside (and) h-he [D1] said (he) wanted to kill a person, that is, (he) had mentioned (it). Then, I and -- that is, er, (we) did have a discussion -- that is, discussed with me and ‘Fei Bo’, telling ‘Fei Bo’ to grab him, grab -- Initially, let Ah -- (he) told ‘Fei Bo’ to grab him and told me to be the look-out, and he would kill. Then, we persuaded (him), that is, we kept -- W-W-We s-said killing people, (we) don’t do this, er, er, (we) said (we) wouldn’t do (it). Er, then he said (he) wanted to snatch money, so and so. Then, he -- That is, r-roughly, he had mentioned that (he) wanted to kill a person, kill a person, [Police: Uh.] then, h-he er. ....
	……
	..... That is, (he) had mentioned that (he) wanted to er -- or slashing a few times with a knife, this and that. Anyway, (he) had mentioned that -- that is, (if) this person didn’t die, h-he would die -- his family would die and his sworn mother would die, something like that. I -- He had mentioned (it) briefly, but we finally refused him. Then, h-he -- Lastly he said er, ‘It’s alright, you just don’t bother me.’ Er, (one or) two days later, give – ‘See what I would do a few days later, (I)’ll call you guys.’ Then, we continued to play the ball game .....
	……
	..... (I) paid no further attention to him, that’s it.” (Appeal bundle pp. 852-853)

D3 explained (page 854) that the reason D1 said that he wanted to kill this person was “a person had caused his sworn mother to suffer so much”.  He continued by saying:

“	He [D1] hinted that, that is, er, (he) said his sworn mother was often bullied by someone, er, and er, that is, (he) said er, (he) wanted to kill the deceased, t-that’s it. Er, then, he also asked us to help him by acting as look-out etc. Er, (he) told me -- (He told) ‘Fei Bo’ to help him by grabbing er -- grabbing the deceased, then ah ‘Ah Kwok’ -- ah ‘Fei Bo’ refused him too. Then, I-I said -- I said these, these jobs of killing people, (it) can bring serious consequences, is that right? Well, ‘Fei Bo’ er, also refused him. That is, actually, he, at Golden Era Plaza, he already knew that we were also, weren’t -- w-wouldn’t help him in (doing) this kind of things, that is, helping him by killing someone together (with him). After that, he then, then -- Okay, a minute later, we wanted to snatch money, such things, is that right?
	……
	Right, he, well, that is, anyway, (he) persuaded me, that is -- (he) said -- tried to persuade us to act as look-out for him, and not er, hinted that (it) was -- Initially, (he) intended to kill someone, then we refused him, he t-then hinted that, … that is, used other (means) to move -- requested us to be the look-out for him.
	……
	He directly, at the beginning, (he) only inten[d]ed to kill a person.
	……
	He had a -- He mentioned using a gun, and said, and said what er -- using a knife, (he) just mentioned (that) briefly. Then, I said er -- That is, I asked him, I then said, ‘Wow! Using a gun would make a loud noise.” (Appeal bundle pp. 855-858)

57.  D3 then repeated how D1 had told him that someone had caused his sworn mother to “suffer much” and that D1 had said: “I want to kill him”.  He said that D1 had been talking seriously at the beginning (page 859) when he spoke about killing someone but then he said:

“	… Let’s see, ask ‘Fei Bo’ to help grab him or what, how -- Then, ‘no need’ to have ‘Fei Bo’, that is, (he) wanted .....
	……
	He wanted to stab him to death.
	… He wanted to er, ask ‘Fei Bo’ to grab him, then, we of course refused him. [Police: Uh.] I said er -- I said this kind of things might bring serious consequences, is that correct? Then, we said er, that is, no matter how (we) are like brothers, sometimes, some kind of things -- that is, (what) can be accepted by oneself, let it be, that is, I don’t -- (I) refused him (and) wouldn’t agree to do (it). …” (Appeal bundle pp. 860-861)

58.  After D3 had again refused to help D1 kill the person D1 was talking about, he said (page 862) that D1 “took the chance to begin watering down the matter”, and he added:

“	… Then, (he) submitted to my persuasion and said er, either snatch his money or chop (him) a few times ah (so as to) end (the matter). That is, since he knew that we were reluctant to help him, that is, you know, these (things) can bring serious consequences.” (Appeal bundle p. 863)
“	At the very beginning, his intention -- (he) already wanted to -- told us that (he) wanted to kill someone, but seeing that I …
	… But knowing that we had refused him, after twists and turns, he gradually tried to use excuses (and) intended to -- that is, what? (He) wanted to er, conceal (his) intention of killing this person, but didn’t want to let us know, er, wanted us to act as look-out for him, that kind of things.” (Appeal bundle pp. 867-868)

59.  The officer who was questioning D3 then turned his enquiry to the conversation which D3 had with D1 and D2 prior to the killing itself.

60.  D3 described how D1 called him to go to the fruit market (page 870) where he found D2.  D3 said (at page 870): “We had a rough idea about what he wanted to discuss.  D3 told the police:

“

… Then, I said okay, reaching -- I said, er, ‘Hey! You don’t really want to kill someone, do you?’ He [D1] said, ‘No, I intend to stab him a few times or what, it’s okay, don’t bother me, no problem, don’t -- The two of you just act as look-out for me, (that) will do.’ Like that.” (Appeal bundle pp.870-871)

61.  D3 estimated (page 872) that the time of this conversation with D1 was at “around eleven or twelve o’clock”.  He went on to deal with the clothing worn by D1 before saying:

“	He [D1] said er -- also -- that is, (he) told me er, ‘It’s okay, what will I do? I won’t er -- that is, what? To take revenge, er, you -- Slash him, slash him, slash him several times ah, (you) just see.’ -- So and so, (he) only said this to us.
	……
	He er, hinted that, that is, (he) wanted the two of us to act as look-out for him, and er, ‘It’s okay, just a small matter, Don’t tell me that (I/you) can’t even (do) this?’, like that, thinking this way -- that is, (he) told us this. But when (I) arrived (there), (he) said, it’s okay, he would handle everything. I - I then -- (He) told the two of us to act as look-out for him, like that, I ……” (Appeal bundle pp. 876-877)
“	… At that time er, he was, anyway, (he) told us to go and act as look-out, ‘There won’t be any trouble, just a small matter, just be the look-out (and) watch out for the police, is that right? By that time, I’ll handle everything myself.’ (He) said this.
	……
	He said er, ‘You guys go to Tsing Yi (and) act as look-out for me, and watch out for the police ah. I -- Then, er, anyway, (it) totally has nothing to do with you. Just call me immediately (if) the police is there, (and that) will do.’ Like that.” (Appeal bundle pp.878-879)

When D3 went to the scene in Tsing Yi with D2, they were “idling there … to see whether there was any policeman” (page 889) before D1 arrived in a taxi.  They then boarded the same taxi to hear D1 explain how he was to be alerted if they saw any police around.  D3 said (page 893) that he did not pay attention, adding that:

“

… Even after (I) had gone up, I actually didn’t really want to help him, (my) attitude was -- Because (I) didn’t get any benefit, (I) got nothing, right? And one thing, really, er, that is, my attitude was, that is, (I) simply wanted to have fun, um -- That is, not -- that is, (I) didn’t expect that he meant to do this. I mean – That’s why I didn’t pay attention to his acts since the very beginning. Well, well, but after going up er -- he told me to go up the footbridge -- the footbridge, well, er, then I -- Well, after I had gone up (there) for five minutes, he asked me whether there was any policeman, something like that. He had already gone up, right, then, (I) saw him putting on (a pair of) gloves there. Then, that is, on the footbridge, I saw him wearing (a pair of) gloves, those transparent gloves, right? Then, well, he might be searching on this side. Then, (I) saw him -- that is er, well, he greeted that person, that is, on the footbridge, suddenly ..... [indistinct] ..... about 5 to 10 minutes [Police: Um.] (He) greeted someone there. Well, as soon as I saw him greeting the person, well, (and) I saw that uh, er, that is, uh -- there wasn’t any policeman, so (I) was walking there. (I) already saw him (greeting) someone -- that is, (he) had seen the person he was looking for, [Police: Um.] well, I didn’t care what he would do to .....” (Appeal bundle pp. 893-894)

62.  Following this part of the interview, there was lengthy questioning about the taxi driver by whom D1 had been driven to the scene and took all three men away afterwards.  D3 then described the place they had gone to afterwards for “fun” called ‘348’.  After that, D3 said:

“

… After spending some time, I thought he -- Er, before leaving, he said -- He also said (he) had settled everything, that is, he didn’t want to let us know that he had killed someone since the very beginning. Do you understand? That is, before the matter was reported in the newspaper, I didn’t know that he had really -- had really killed someone on that day. Because he had mentioned (it) to us (and) we had refused him previously, right? Since the very beginning, he -- my acting as look-out for them means that, means that his intention, I also -- Since the very beginning, (he) didn’t want us to know that (he) really (wanted to) kill someone. They -- Do you understand what I mean? He only told me that he had finished what he (wanted to) do, like that.” (Appeal bundle pp. 951-952)

63.  D3 said (page 961) that he had not seen D1 again until he returned from the Mainland and saw D1 at hospital after D1 had been arrested.  Then, he said, “we agreed on (the facts of) the statement”.  He explained (page 962) that by this he was to say to police “we only saw [D1] at ‘348’”.  He added (page 964) “(we should) say that he had not gone to Maritime Square”.  He said, also (page 966), “we never thought he would really kill someone”.  He had found this out from reading the newspaper (page 968) and had not asked D1 if he had done so because he had earlier “refused him” when D1 had said he wanted to kill someone.  He went on to say:

“	Then, he hinted -- yes, that is, (he) hinted that (he) wanted to do other things. Anyway, he hinted -- er, hinted (to us), telling us to simply act as look-out for him, (and) he would handle other things.” (Appeal bundle p. 969)

64.  When D3 was asked (page 981) why he had assisted D1 to do this kind of thing unconditionally, he replied:

“	... (You) can say (I am) stupid. I, at first, I didn’t expect that he would really -- that is, (had) such a strong motive to, that is, that is, so merciless as to kill a person, right? You -- that is, (he) never, (it was) not until the night the incident occurred did he -- (if) this incident hadn’t happened, I -- I really wouldn’t have known that he had killed this person. And (he) didn’t tell me that (he) had killed someone (when) he arrived at ‘348’ on that day, do you understand? Since the very beginning, he actually treated us as idiots (and) coaxed us to act as l-look-out. However, earlier on, he had mentioned that (he) wanted to kill this person, but we of course – ‘Fei Bo’ and (I) refused him.
	......
	Then, he said, that is, (he) took the opportunity to coax us. Anyway, since the very beginning, (he) wanted to conceal that (he) wanted to kill someone, but, that is, (it) wasn’t -- By concealing (it), (he) wished that w-we would act as look-out f-for him, voluntarily, do you understand? Well, I -- that is, what? He never said (he) would give me a buck, right? Do you understand …”  (Appeal bundle pp. 981-982)

65.  D3 went on afterwards to repeat how he had refused to hold the deceased while D1 killed him and how D1 had gone on to ask him to be “the watcher” and said that D2, had “a strong build to grab”.  When this was declined, D1 had said that he would go over to kill [the deceased] and both D2 and D3 “refused him”.  This was when (pages 984-985), as D3 put it, D1 “spent time in scheming (how he could) coax us … as lookouts for him”.

66.  When D3 was asked (page 984) if these were things he only felt after the event, he replied that “on the day, I still thought that he had said (he) might … want to snatch money …”

67.  Towards the end of the interview, D3 asked to be allowed to view the ‘reconstruction’ tape which had been recorded in very noisy conditions.  His comments about that tape in the final interview amounted to clarification about what he had been saying at the time of the reconstruction.  The replies he gave provided nothing which was not already known from the answers he had provided in his earlier interviews.

68.  Looking, next, at the suggestion that the judge had failed to give a balanced overview of D3’s interviews, Mr Raffell’s point was that the judge had only highlighted the parts of D3’s main interview which pointed to his guilt.  This submission has to be considered, as Mr Raffell conceded, in the light of the fact that the jury had copies of the transcripts of interviews and, importantly, the direction given by the judge that the jury should take into account the comments which Mr Raffell had made in the course of his lengthy final speech about the answers D3 had given to the police.

69.  This brings us, therefore, to the way the judge summed up the evidence against D3 based on his answers to the police.  The judge first of all covered a large number of matters which Mr Raffell had dealt with in cross-examination, alleging misconduct on the part of the police before coming to the content of D3’s interviews.  The judge also dealt with the possibility (because of the analysis of a sample of D3’s urine) that D3 was affected by the consumption of dangerous drug at the time of his first interview.  The judge then directed the jury in these terms:

“	… What he said, you will recall, is not confined to admitting that he had acted as a lookout, but also the denying of knowledge that the deceased would be killed. The fact that he was capable of making - for he did there make - a denial in his own favour is relevant for you to consider as you see fit, when deciding on whether you feel sure that he was in a fit state to be interviewed.
	Admissions, their reliability and their truth are for the prosecution to prove and prove beyond reasonable doubt. If you are sure that an admission was made in circumstances free from impropriety and oppression, that it is [reliable] and that it is true, then you may act on it.” (Appeal bundle p. 30)

70.  The judge then briefly reminded the jury about the approach taken to the interviews by counsel for the prosecution and by counsel for D1 and D2 before saying:

“

Counsel for the 3rd accused and counsel for the 4th accused each attack the reliability of his client’s out-of-court statements as well as to invite you to take the view that his client’s out-of-court statements, even if reliable, are insufficient as a whole to prove murder or manslaughter beyond a reasonable doubt. You will remember and consider everything which Mr Raffell for the 3rd accused said in final speech. As to the reliability of his client’s out-of-court statement and the light in which they are to be approached, this included urging you to give those statements very little weight by having doubts, as he urged you to have, about the 3rd accused’s state of mind when interview. It included what Mr Raffell urged about his client’s state of mind because he urged, of ‘ice’, impropriety by the police, the 3rd accused’s own stupidity, his nerves and tension after finding out from newspapers that the deceased had been killed and being arrested and interviewed quickly thereafter. Mr Raffell asks you to give his client’s out-of-court statement very little weight by reason of all or some or any of those things which he urged. You will remember and consider everything Mr Raffell said, but at the same time, you will bear in mind what counsel says, whether in cross-examination or speech, is not of itself evidence.” (Appeal bundle p. 31)

71.  After these introductory words, the interviews of each appellant were concisely dealt with.  In regard to D3, the judge said:

“	Members of the jury, let us now turn to the out-of-court statements of the 3rd accused. … The 3rd accused[’s] first video-recorded interview. … counter No. 23.  There PC34144 told the 3rd accused that it was about a murder case at 2.30 am on 9 October 2004 at the station in Tsing Yi.  From page AE1237 to page AE1238, you see the 3rd accused saying that he was at Tsing Yi near the bus terminus at 2 am on 9 October 2004.  Now turn to the next page … From counter No. 45 on that page up to and including counter No. 58 at the end of the next page … you see the 3rd accused saying that he was there to help Ah Ming [D1] by watching if any policemen were around while he chopped a man a few times, that man having bullied his, i.e. Ah Ming’s sworn mother.
	Members of the jury, Mr Raffell for the 3rd accused is right when he says that the 3rd accused does not speak of seeing or being told of a knife. But you are entitled to use your common sense and consider what chopping a man necessarily involves using. As always, remember that an out-of-court statement is not evidence against anyone other than the statement-maker.
	Turn to … counter No. 154, the 3rd accused was talking about what had happened at the billiard room several days ago and he says that he persuaded Ah Ming [D1] not to kill that person, and that Ah Ming [D1] promised him that he would only slash that person a few times.
	At … counter No. 178, there is another reference to being asked to act as a lookout. … there are several references to watching to see if there were policemen. At …, counter No.338 ends with this sentence: ‘Once we spotted policemen, informed him immediately. The meaning was that.’ Remember again, that is not evidence against anyone other than the 3rd accused.
	Turn to … counters Nos. 433 and 434, the 3rd accused says that it was out of his expectation that the man would be killed. … the 3rd accused talks about watching to see if there was any policeman. … the 3rd accused said that he did not expect that the person would be killed.
	Now let us turn to the 3rd accused’s second video-recorded interview. Please pick up Exhibit P84. … Turn to … counter No. 399. In the middle of that counter, you see this: ‘(If) the policeman came, (I) would press a phone call to him.’ (Appeal bundle pp. 39-41)

72.  The judge, rightly, did not trouble the jury with the contents of the ‘reconstruction’ videotape and the short summary given of the final interview took the matter no further.

73.  The question which remained to be answered, therefore, was whether the directions in D3’s case provided sufficient guidance on the law of murder bearing in mind the diverse replies made by D3 as to what he perceived to be the nature of D1’s purpose as D3 acted as a lookout, keeping watch for the presence of police.

74.  In HKSAR v Mok Tsan-ping and Ors [2001] 2 HKLRD 325, this court was concerned with an allegation of murder which the prosecution had alleged was committed by the three appellants in a joint enterprise.  The fatal wound was inflicted by D3 who had stabbed the deceased twice in the back.  D1 was carrying a stool and D2 was unarmed but both had joined D1 in pursuit of the deceased immediately before he was killed.  It was submitted in that case (at page 330) that whilst the judge had given proper directions in general terms as to joint enterprise, “at no stage had she specifically directed the jury that they should be sure, before convicting of murder, that D1 was aware of the knife in D3’s hand”.  The respondent conceded that this omission from the summing up was fatal to the conviction of D1.  The judgment in that case continued (at page 332) as follows:

“	The importance of the Judge’s omission to focus the jury’s attention as to whether D1 had knowledge that D3 was carrying a knife, based on an inference which could be drawn from an abundance of evidence to that effect, was illustrated in R v Uddin [1998] 2 All ER 744.  In that case, the appellant was in a group of six who were attacking one man.  In the course of the attack, one of the appellant’s co-accused (Tahid) used a flick-knife to inflict a fatal wound on the victim of the attack.  The appellant and Tahid were convicted of murder while the three other co-accused were acquitted of murder and convicted of manslaughter.  The basis of the appellant’s successful ground of appeal against conviction was that, when dealing with joint enterprise, the Judge failed to direct the jury that in order to convict the defendant of murder they had to be sure that, as a secondary party to the killing, he had foreseen as a possibility the use of a knife.  There had been, apart from the testimony of one witness who heard a cry of ‘stab him’, no evidence that any of the attackers knew that Tahid had a knife.  Beldam LJ, giving the judgment of the Court, distilled the principles to be applied to such a case, in the light of the decisions in R v Powell, R v English [1999] 1 AC 1, and went on to say at p.753G:
	‘	Whilst the jury were, as we have said, carefully directed to consider whether the actions of any of the accused went so outside the common purpose that they were not foreseen by the others, the jury’s attention was not specifically focused on the use of the knife by Abdul Tahid and whether on the evidence they were sure that the others were aware that he might use it.  As we have said, there was evidence from which the jury could conclude that those of the accused who took part after the shout of ‘Stab him’ must have been aware that one of them had a knife and might use it with intent to do serious harm.  Lord Hutton stressed the lethal nature of a knife as a weapon; it was for the jury to say whether its use in this attack was so different from the concerted actions of hitting the deceased with clubs and kicking him with the shod foot that Tahid’s actions went beyond the common purpose.
		It was also for the jury to say in each case whether those taking part were aware, whether from the shout or otherwise, that one of their members might use a knife.’  (Emphasis added).”

75.  As we have seen from the passages cited earlier, taken from the judge’s directions as to what the prosecution had to prove to establish murder, it was made abundantly plain that a person would be criminally liable for the acts of another if:

“	(i)	they were done in pursuance of the joint enterprise;
	(ii)	they were of a type which he or she foresaw as a possible incident of a joint enterprise; and
	(iii)	he or she participated in the joint enterprise with such foresight.” (Appeal bundle p. 11)

76.  This was immediately followed by the direction:

“

If you are sure that an accused was a party to a joint enterprise pursuant to which the deceased was unlawfully and deliberately dealt a blow with a sharp instrument which caused an injury resulting in death, then that accused can, in accordance with my directions, be convicted of murder or manslaughter even though the blow which actually killed the deceased was inflicted by another participant.”  (Appeal bundle p. 11)

77.  The judge carefully set out the difference between a verdict of murder as opposed to manslaughter and in the present context we are satisfied that she had provided ample directions in law to explain to the jury what had to be proved against D3.  The confessions made by D3, which the jury plainly accepted, contained an ample basis for finding that D3 was engaged on an enterprise with D1 and D2 which involved acts of a type which he could foresee as a possible incident of that joint venture, namely the use of a knife.  This emerges from numerous of the answers given by D3 to which we have referred.  Equally, the judge was careful to explain, having dealt with the necessity of giving separate consideration of the evidence against each appellant, that D3 could be convicted of manslaughter, as we have said, if:

“	(i)	he or she participated in a joint enterprise which unlawfully caused the deceased’s death by an unlawful act in the form of a deliberate assault; and
	(ii)	that unlawful act, namely that deliberate assault, was one which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some physical harm resulting therefrom, even though not serious harm.
	The count is for prosecution, if they can, to prove against each accused.” (Appeal bundle p. 14)

78.  In all the circumstances, while we shall give leave to D3 on this ground, we are satisfied, treating the hearing as the appeal, that his appeal must be dismissed.

Conclusion

79.  For the reasons we have set out, the appeal of each appellant must be dismissed.

80.  Finally, we observe that D4 has also applied for leave to appeal against her sentence of life imprisonment.  We need to say no more than to confirm that as the sentence was one which is mandatory there can be no appeal against it.  Accordingly, this application is dismissed.