HKSAR v. CHAN MAN LOK AND OTHERS

CACC 522/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 522 OF 2000

(ON APPEAL FROM HCCC 401 OF 1999 AND 185 OF 2000)

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J U D G M E N T

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

Introduction

1. This case concerns the killing of a woman, aged 23, who was taken from her home and made a prisoner in the flat occupied by the Applicants. Whilst there, she was kept in degrading conditions, subjected to torture and constantly assaulted. After she died, her body was dismembered.

2. The indictment which faced the Applicants (D1, D2 and D3 respectively) alleged three common law offences. They all pleaded not guilty to the allegation in the first count that on an unknown date in mid-April 1999 they murdered Fan Man-yee (the deceased). On 21 November 2000, following a trial before Nguyen J occupying about thirty-five days, the Applicants were acquitted of murder but convicted of manslaughter as an alternative to that count.

3. The second count alleged the false imprisonment of the deceased between 17 March 1999 and mid-April 1999. D1 and D3 pleaded guilty to this count. D2 was convicted by the jury.

4. On count 3, all the Applicants pleaded guilty to preventing the lawful burial of a corpse.

5. On 6 December 2000, the judge imposed on each of the Applicants a discretionary life sentence for manslaughter. All of them were given a minimum term of twenty years to be served, pursuant to the provisions of section 67B of the Criminal Procedure Ordinance, Cap. 221. They each also received sentences on counts 2 and 3, amounting in D1 and D3's cases to a total of seven years and in D2's case to a total of nine years, which were ordered to run concurrently with their life terms.

6. Originally, all the Applicants applied for leave to appeal against conviction and sentence. On 11 August 2001, D3 abandoned his application in relation to conviction.

7. On 31 January 2002, when the matter first came before this court, the Applicants were unrepresented. Earlier, they had been given legal aid which was confined to advice as to possible grounds of appeal. Apparently, no grounds were found. However, Mr Darryl Saw, SC on behalf of the Respondent, in a letter dated 24 January 2002, identified a number of misgivings about the summing up to which we shall turn in due course.

8. On this basis alone, we then adjourned the proceedings for the purposes of giving the Legal Aid Department a chance to reconsider whether legal representation should be given to the Applicants. A further issue which we considered might have merited argument related to the adequacy of the material to justify the imposition of discretionary life sentences.

9. All of the Applicants are now represented. Freshly prepared grounds of appeal, largely formulated around the concerns raised by Mr Saw in relation to conviction and sentence have now been filed. In addition, D3 sought to have the abandonment of his application for leave to appeal against conviction treated as a nullity.

10. It is plain that D3's abandonment occurred at some stage after D3 had been informed that counsel who had originally been instructed to advise on the prospects of appeal had not been able to find any arguable grounds. Although we are aware that there is authority for saying that wrong advice concerning the merits of an appeal does not render an abandonment of an application for leave to appeal a nullity, we do not propose to decide this matter as a point of law. We shall, as we indicated to counsel during the hearing, treat the abandonment in the unusual circumstances which have arisen as a nullity.

Background

11. On 26 May 1999, police officers went to a flat on the third floor of 31 Granville Road in Tsim Sha Tsui as a result of information provided to them by a 13-year-old girl named Lau Ming Fong (PW2). On the first floor canopy, facing Granville Road, they discovered a plastic bag containing the decomposed heart, lungs, liver and intestines of the deceased. Inside the flat, they found most of the deceased's skull. This had been sewn into a 'Hello Kitty' doll. No other parts of the deceased's body, except a tooth, were ever located.

12. In due course, it was discovered that the deceased had been abducted from her address on 17 March 1999. From there, she had immediately been taken to the flat in Granville Road where she died in mid-April 1999.

13. The flat itself was divided into six rooms. D1 had been given permission to live there by Tong Ching-hang who was one of the occupants, with Ng Wan-ming ('Ah Sam'), of the flat on the floor below. D1 lived with his wife in Room 4, D2 lived in Room 6 with his girlfriend 'Ah Yee' and D3 lived in Room 1 with his girlfriend, PW2. Room 3 was occupied by the deceased.

14. Behind some of the gruesome facts which emerged from the case, there lay an extensive criminal background. This was relevant towards explaining the relationships between the Applicants themselves, and between them and the deceased, as well as providing a motive and an explanation for other events which took place. D1, aged 33, knew the deceased from his work as a cashier at a vice establishment where she had worked as a prostitute. D2 and D3, aged 26 and 19 respectively, stated that D1 was their 'Big Brother' and that as such they were his triad followers.

15. It was the prosecution's case that the deceased was abducted by D2 and D3 on the instructions of D1 in order to secure payment of a debt which was said to be owing by the deceased to D1. This debt had started in a relatively modest amount but, notwithstanding its repayment, it had seemingly escalated out of all proportion to the original sum. After the abduction, the deceased was kept at the flat in Granville Road where the Applicants were living. Over the course of the next four weeks, the prosecution alleged that she was so severely maltreated that eventually she died from the injuries she received at their hands.

16. In general terms, it seems that the deceased slept on the floor of her room although for a time she was made to sleep inside a wooden wardrobe. When her physical condition began to deteriorate, it appears that some of her wounds became infected. This in turn created a bad odour. It may well be that the deceased's state, in particular her legs and feet, had been allowed to become so serious that if medical treatment had been sought for her, a police enquiry into how she had come by her injuries would have been inevitable. In such circumstances, the prosecution suggested, the Applicants were probably unable to release the deceased without putting themselves in jeopardy.

17. The principal witness for the prosecution was PW2 who gave evidence under an immunity from prosecution. She was able to describe some of the violent events which occurred over the four weeks of the deceased's captivity. She was 15 years old by the time she gave evidence and although a passive eyewitness to many of the incidents, she had also participated to a limited extent in assaulting the deceased. It was her evidence which enabled the prosecution to put before the jury a pattern of conduct on the part of all the Applicants showing that they were unrelenting in their violence towards the deceased.

18. The events which took place in the Granville Road flat came to light after PW2 had been detained for unconnected reasons in a home for wayward girls. It was there that she confided to another inmate that her boyfriend (D3) had been involved in a killing. She was then interviewed by the police.

Issues at trial

19. There was no issue at trial, so far as D1 and D3 were concerned, that the deceased had been abducted and held against her will at the Granville Road flat or that she had been subjected for about a month to numerous assaults, indignities and torture. None of the Applicants disputed that the deceased had died in the flat or that her body was later dismembered and disposed of by them. The central issue on count 1 which the jury had to decide was whether or not, individually or collectively, the Applicants' conduct had been proved to have caused the deceased to die. In this context, the jury had to consider the defence contention that, despite the deceased's ordeal at the hands of the Applicants, a possible cause of death was that she had died from an overdose of methamphetamine hydrochloride ('ice'). This was largely based on evidence given by D1 and D3 that shortly before her death the deceased had been eating 'ice' crystals. Assuming the jury to have been satisfied about causation, they had next to consider the intention of each Applicant at the material time.

20. There were extensive video-recorded interviews given by D2 and D3 in which they made a large number of admissions. D1, on the other hand, having been arrested on 26 May 1999, said nothing which incriminated him except that it had been an accident and that: "It never occurred to us that it would turn out like this." The self-serving contents of D1's later interview were not produced at trial.

Evidence of Lau Ming-fong (PW2)

21. We are grateful to counsel for the Respondent for their most helpful summary of the evidence, including that given by PW2 which we can in large measure adopt. PW2 admitted hitting the deceased with a water pipe and with her hands. She described several very serious assaults being made on the deceased by the Applicants, sometimes acting alone and otherwise in varying combinations.

22. The first of the violent incidents described by PW2 came about during the first evening that the deceased spent in captivity. This was just after she had been brought back to the flat by D2 and D3. The deceased was in fear and she was asked by D3 why she had not repaid the debt she owed to D1 and why she had not returned telephone calls. D3 then kicked the deceased more than fifty times to all parts of her body, counting aloud the times he kicked her and sometimes asking the deceased where he should strike her. PW2, who had been watching, said that this was one of the occasions she had also struck the deceased with her hand and that this was done on D3's instructions. Neither D1 nor D2 were present in the room during this incident.

23. In the second incident, which may have been on the second day of her captivity, D1 was asleep in the flat while D2 and D3, in a cruel and cowardly fashion, maltreated the deceased by burning her and then rubbing chilli oil or sauce into the wounds. PW2 described this as having "fun". She said that plastic drinking straws and a plastic bottle were melted with cigarette lighters and dripped onto the deceased's feet. For some of the time, D2 held the deceased's legs to prevent her from moving and she was instructed to laugh or smile while molten plastic was being dripped onto her. PW2 also participated, and later she saw D2 and D3 using a cigarette lighter to burn the deceased's feet. She described the skin on the deceased's feet as completely disappearing in places leaving blistering. D2 and D3 then applied the chilli, amongst other things, to the wounds on her feet. They also put some into the deceased's mouth as well as on other wounds she had on her face and body and then, having used a stick with a rough surface to rub the sauce into her wounds, they applied more chilli. The deceased was left in great pain. Not satisfied, D2 then urinated into her mouth. Next, D2 and D3 forced the deceased to eat human excrement. Lastly, cooking oil was poured into her mouth.

24. The third incident involved D3 who tightly tied the deceased's hands to an overhead rack with elastic wires, forcing her to remain standing for many hours. In the result, her hands became considerably swollen. This was said to have been done to prevent the deceased scratching the scabs that had formed over the wounds on her feet.

25. The fourth incident involved D1 who struck the deceased's hands with a water pipe. Again, this was because the deceased had been scratching the scabs on her wounds. D1 made the deceased spread her fingers on the floor and he then struck them with force more than once. PW2 left the room where this happened for a time and when she returned she saw that the deceased's face was swollen and covered with blood.

26. The fifth incident involved all the Applicants. The deceased was held by D2 and D3 while D1 used his knee to hit her in the chest on what was said to have been no more than ten occasions. Throughout, D1 was asking the deceased questions. She replied with words to the effect that she was sorry and that she would not do it again.

27. The sixth incident described by PW2 was really a series of assaults on the deceased spread over a period of several days. As to these, they occurred on a daily basis. These were committed by D2 and D3 and sometimes also by D1. These attacks on the deceased were sometimes carried out by kicking, and sometimes by striking her with hands, fists, water pipes or a wooden table leg. On one occasion, PW2 observed "bubbles" on the deceased's head after the beating she had been given.

28. The seventh incident came after the deceased had been found by PW2, D3, 'Ah Sam' (from the flat on the second floor) and 'Ah Yee' (D2's girlfriend) lying on the toilet floor. This was in the early hours of the morning after they had returned from a discotheque. D1 was informed and he then struck the deceased several times on the breasts with a water pipe, remarking that the deceased had uneven breasts. When questioned about some discrepancies in her account, PW2 said: "In those days they assaulted her every day, so I cannot recall every detail so clearly."

29. The eighth incident was, according to PW2, on the evening of the same day as the previous assault. PW2 heard banging noises similar to the sounds she had previously heard when D2 and D3 would kick the deceased or beat her with water pipes. When PW2 went into Room 3, the deceased was on the toilet floor as if picking up something. She could not see what this was but the deceased was putting whatever it was into some tinfoil she was holding. D1 told PW2 that the deceased had dropped 'ice' onto the floor. PW2 left the room but later, when she again heard banging sounds coming from Room 3, she went inside and saw the deceased in great pain, wriggling her body, panting, crying out and in difficulty with her breathing. D1 and D3 were with her. PW2 said that the deceased looked like a 'junkie' who was tortured by the urge for drugs. D1 told her that the deceased was suffering from withdrawal symptoms. When the deceased became motionless, D1 proceeded to ignite a cigarette lighter against the deceased's feet which made her move them. D1 then asked D3 and PW2 to lift up the deceased, but when she was leant against the wall, she slid down to the floor. Importantly, in terms of the causation of death to which issue we shall have to return in some detail, this incident seemingly took place on the night before the deceased died.

30. In summing up to the jury, the judge dealt with a number of other assaults as well. These were general allegations where PW2 had seen D2 and D3 each striking the deceased with a water pipe all over her body, except the head. PW2 described how the deceased had been told not to make any noise while being hit. This may account for an outsider, on only one occasion, hearing cries for help. Mr Wong, a neighbour who lived on the fourth floor, gave evidence of hearing a female voice calling out for help and being sworn at by a man.

31. PW2 had not been alone in observing the deceased being assaulted at the Granville Road flat. Ng Wan-ming ('Ah Sam') lived in the flat below, on the second floor. He described how, in one incident, he had observed D2 and D3 beating the deceased with their hands and fists. On another occasion, he saw D2 and D3 kicking and hitting the deceased. This witness also observed the pitiful state of the deceased's arms and legs.

32. It appears that the deceased's condition deteriorated to a considerable extent in the last few days of her life. Eventually, when it was thought that the deceased had died, PW2 was asked by D3 to check. She found the deceased had no heartbeat and that her limbs were stiff. She also noticed a white discharge inside and outside the deceased's nostrils.

33. As the body began to decompose, the Applicants moved a refrigerator into the flat. They removed the shelving and put the deceased's body inside it. It was later decided to dismember the body and dispose of the remains.

Pathologist's evidence

34. On any view, the deceased had been savagely beaten and cruelly maltreated over a period of about a month. Dr Poon Wai-ming, who conducted the post-mortem examination, was unable, from the limited material available, to say what had caused the deceased to die.

35. In view of the suggestion made by the defence that the deceased may have died from a drug overdose rather than the combined effect of an assault or assaults upon her, he was questioned about evidence which it was anticipated might support this view. He agreed that if "whitish fluid" had been observed (by PW2) in the area of the nose of someone who had taken 'ice', this would be consistent with an overdose. In relation to D2's observation that when he saw the deceased's body he noticed blood in the nose and ears, Dr Poon said that blood in the nose could have been caused by trauma prior to death but it was also consistent with a drug overdose. The bleeding from the ear, on the other hand, was not a usual consequence of drug overdose, and was likely to be the result of trauma to that region of the head.

36. Dr Poon, in answer to prosecuting counsel's questions, set out his assessment of the deceased's behaviour following the treatment she had received in the days leading up to her death in these terms:

"... if she was kicked and assaulted all over her body, certainly she will have multiple injuries to her soft tissue and that of course would lead to a great deal of pain, not to mention emotional suffering, fear and anxiety, and all this could explain her wriggling and this sort of movement of her body. Secondly, if she was assaulted all over the body this might have caused injuries to her chest wall. The injury to her chest wall might have caused, first of all, fracture of ribs, and secondly damage to the lung tissue and even bleeding into the chest .... cavity surrounding the lung. All these three factors, fractured rib, injury to the lung and bleeding into the chest cavity might have impaired the breathing capacity of an individual and caus(ed) difficulty in breathing. You have outlined to me that Fan Man-yee (the deceased) was observed to be short of breath and rapid breathing and this finding could have been explained by injuries to the chest organ and the ribs." (Appeal bundle p. 1724)

37. Dr Poon was shown a number of water pipes which had been found at the Granville Road flat and he confirmed, if any confirmation was needed, that they could cause serious injury if used to strike someone.

38. On the subject of oral consumption of 'ice', it was Dr Poon's opinion that the inhalation of fumes into the blood stream by heating the crystals to cause them to evaporate was likely to cause more rapid absorption than by oral ingestion. However, in order to bring about an overdose, it was, he said, the amount which mattered rather than the method by which it was consumed.

39. Dr Poon agreed that the consumption of approximately one gramme of 'ice' could lead to a fatal overdose and he did not specifically relate this to the method of consumption. He was unable to rule out the possibility of death having resulted from a drug overdose.

'Ice' consumption

40. There was evidence in the trial which, if accepted, showed that the deceased was accustomed to taking 'ice' and that in the month before her death she had been able to consume a certain amount of this drug, although not in large quantities or on a regular basis. That she had been a consumer of 'ice' before her abduction was confirmed by her common law husband, NG Chi-yuen.

Defence case

41. D1 said that he had known the deceased since early 1997 when she had worked as a prostitute in the same villa where he was employed. They used to consume 'ice' together. He described the deceased's indebtedness to himself as something which had arisen not from a money-lending situation, as the prosecution had alleged, but from her theft of his property worth about $8,000. D1 said that $4,000 was repaid and when he and D2 tried to obtain the remainder, they met with no success. By September 1998, the deceased's indebtedness had become $30,000. Seemingly, $14,000 was repaid leaving $16,000 still owing.

42. In March 1999, D1 said that D2, who he described as "hot tempered", had tried to recover the balance which was owed on the debt. It was, according to him, D2's suggestion to bring the deceased back to the Granville Road flat. This was because she had no money and if she was made to work as a prostitute she would then be able to repay what she was said to owe.

43. On 17 March 1999, the deceased was brought back to Granville Road and D1 admitted that he, with D2 and D3, all combined to assault her. There was a further occasion on which he accepted he had assaulted the deceased with D2 and D3. This was because she had stolen some of his 'ice'.

44. D1 largely put the blame on D2 and D3 for the assaults on the deceased. He said that he had threatened to beat her with a water pipe because she had continued to scratch the wounds on her legs where molten plastic had been poured on them. However, he said that he had not carried out his threat. His role was, according to him, to act as a moderator as he was concerned for the deceased's welfare. He often told D2 and D3 not to hit her.

45. Not long before the deceased died, D1 said that he had found her on her hands and knees picking up 'ice' and putting it into her mouth. She then passed out after falling against a wall or cupboard. After that, D1 described how he had seen her wriggling in pain on the floor. For some unexplained reason, he lit his cigarette lighter and placed it against her feet.

46. After her death, which followed not long afterwards, D1 said that he placed the deceased's corpse inside a refrigerator. The body was dismembered after it had been drained of blood in a bath tub. The internal organs were removed and the flesh was taken off the bones. Having cooked these parts, they were discarded into rubbish containers. The head was boiled and the flesh was removed and discarded.

47. Throughout his evidence, D1 put most of the blame for what happened to the deceased on D2 and D3, saying that he had learnt about their treatment of her from the deceased herself or from PW2. D2 was the prime culprit according to him.

48. D2's evidence was mainly consistent with his earlier interviews. He attempted to distance himself from the more serious assaults and to lay the blame for those on the other two Applicants. D2 described D1 as his triad 'Big Brother' for whom he worked in a money-lending business and who had all along controlled him. In March 1999, he was asked by D1 to go to the deceased's house with D3 to collect the debt she owed D1. He said that when it was obvious she had no money, he was instructed on the telephone to take her back to the flat in Granville Road.

49. D2 generally agreed with PW2's descriptions of what had been done to the deceased. In particular, he said he had seen D3 and PW2 hitting the deceased with water pipes and that he and D3 had dripped molten plastic onto the deceased's legs from straws and a plastic bottle. He also described a severe beating which D1 had given to the deceased when he had hit her over the head with an iron pipe.

50. D1, he said, was in charge and was the person responsible for the most savage assaults on the deceased. He said that D3 was on one occasion "crazy" and had beaten the deceased quite badly.

51. D2 said that he only stayed at the flat two or three days each week, making out that his role had been minimal. In particular, he had neither been at the flat when the deceased died nor present at the assaults shortly before her death.

52. Similarly, D3's evidence was largely consistent with the answers he had given in earlier interviews. In these, he had sought to distance himself from the most brutal assaults on the deceased. He admitted instructing PW2 to slap the deceased and telling her to do so again when she did not hit the deceased hard enough the first time. He also admitted that he, with D1 and D2, had "worked over" the deceased soon after her arrival at the Granville Road flat to teach her a lesson for not repaying loan monies. He described how the deceased was later "worked over" again because she had stolen some 'ice'. On occasions, D3 said he had kicked the deceased. He denied using any weapon to strike the deceased. He said that when he and D2 had dripped molten plastic followed by chilli oil onto the deceased, this was done for "fun". His assaults on the deceased were either to have fun or because he was angry.

53. D3 said the deceased was beaten up two or three days after she had been taken to the flat for stealing 'ice' and, contrary to a clear admission in his interview, not on the night before her death. He said that after the death, he had been responsible for sewing the deceased's skull inside a doll.

Grounds of appeal

(1) Causation

54. We have already referred to the Respondent's concerns, expressed by Mr Saw in a letter dated 24 January 2002, prior to the Applicants obtaining representation in these proceedings on legal aid.

55. The first of Mr Saw's concerns was concentrated on the directions which the judge gave on causation. Mr Saw, in the light of a post-mortem which had failed to identify the cause of death, wrote that as causation was one of the principal issues for the jury to determine, there were passages in the summing up which gave rise to a reasonably arguable ground of appeal that "if there was a possibility that the deceased died of an overdose of drugs then the prosecution could not establish that it was the conduct of the Applicants which caused her death". This theme was developed by Mr Frederic Whitehouse who did not appear in the court below. He submitted, in the first of three substantive grounds of appeal, that there was insufficient evidence to show that any of the Applicants, including D1, had committed an act which could render them guilty of manslaughter when the evidence which the jury had heard left open an equally compelling inference that the deceased had died from an overdose of 'ice'. In this context, the judge had, he submitted, taking up the precise point raised by Mr Saw, erred in his directions on causation by directing the jury that they could convict of manslaughter if the injuries received by the deceased were a "significant cause of death".

56. This ground of appeal was also advanced, using different phraseology, by Mr Andrew Raffell on D3's behalf in the third of his grounds.

57. In essence, counsel were saying that the judge had unnecessarily asked the jury to decide whether the assaults were a significant cause of death when the true issue was whether or not it had been proved that the assaults were the cause of death. It was suggested that the jury may have been confused as to what it was they had to decide and, in particular, about what they should do if they found that a drug overdose had caused death. In the result, it was submitted that the jury may have thought that they could convict of manslaughter so long as the injuries were 'significant'.

58. The passages in the summing up, giving rise to this ground of appeal, are as follows:

"Please remember, members of the jury, that the defence have suggested that this is a possible cause of death, that she died of a drugs overdose. They do not have to prove that she in fact did die of a drugs overdose. They only have to suggest it, and you should consider it.

Now, with causation, members of the jury, I have a handout for you. It is a question of fact and degree in each case for the jury to decide, having regard to the gravity of the supervening event. The supervening event in this case, members of the jury, is of course the fact that (the deceased) was addicted to drugs and she was consuming drugs, and apparently consuming drugs the night before she died. Having regard to the gravity of the supervening event, it is a question of fact and degree in each case for the jury to decide whether injuries inflicted by the defendants were a significant cause of death.

The onus on the prosecution is to make you sure that the injuries inflicted by the defendants were a significant cause of death. However, the prosecution has no burden of establishing that any supervening event was not a significant cause of death. So long as the prosecution proves that the injuries inflicted by the defendants were at least a significant, if not the only, cause of death, that will be sufficient to prove the connection between injury and death.

'Significant' cause of death means a contribution made to the death which is more than negligible. There is no burden on the defendants to establish the drugs overdose. However, if the jury thinks that it is or may be possible that the deceased died from a drugs overdose, it is a factor to be taken into account by the jury in deciding whether the prosecution has established that, notwithstanding this possibility, the injuries inflicted by the defendants had significantly contributed to the death of the deceased. Provided the jury are sure that the injuries the defendants inflicted contributed significantly to the death, it does not matter whether the drugs overdose, or any other matter may have also contributed significantly to the death.

The prosecution submits to you that they have proved beyond a reasonable doubt that the injuries inflicted by the defendants on the deceased contributed significantly to her death. They say that it has been proved beyond a reasonable doubt that the deceased suffered injuries as a result of the assaults. They rely on the evidence of PW2, Ah Fong. The prosecution asks you to accept (PW2's) evidence and they say that if you are sure of the injuries caused to the deceased, there is but one reasonable inference to draw from them and that is the death of the deceased was caused by the defendants when they committed the assaults on the deceased.

The defendants, on the other hand, say that that is one inference you might draw, but that is not the only reasonable inference to draw. They say that the evidence is equally capable of leading to an inference which is consistent with innocence on the part of the defendants and that inference is, or may be, that the deceased died or may have died of a drugs overdose ....

So members of the jury, on the question of causation, if you are not satisfied beyond a reasonable doubt that the prosecution has proved the causation, namely that (the deceased) died as a result of the injuries which she sustained as a result of the assaults upon her by the defendants, then you must find the defendants not guilty of murder and manslaughter." (Appeal bundle pp. 23-25)

59. We do not know why the judge chose to introduce this complication when neither the defence nor the prosecution had invited him to do so and when the speeches of counsel had mirrored the way their cases had been presented throughout the trial without reference to a combination of factors leading to death. Throughout the trial, it was said that the death was either the result of the deceased's maltreatment or an overdose of drugs.

60. Furthermore, we understood from Mr Saw that these directions, which were reinforced by a so-called 'handout', were not, so far as both trial prosecuting counsel could recall, ever considered by the judge with counsel before the summing up began. We wish to emphasise that judges should, particularly in complex cases such as this, identify issues which it would be prudent to canvass with counsel before the summing up. To take two common examples, such matters might include whether to leave a particular issue to the jury which may be thought to be controversial, or a discussion as to how it is intended to direct the jury on a legal topic of some difficulty. When such questions are canvassed, it is generally important that this is done prior to counsel's speeches so that counsel will know how the judge proposes to approach those issues and so that they will have the opportunity to comment on them should they see fit to do so.

61. It was said in R v Whitefield [1984] 79 Cr App R 36 at 40 to which we shall later return in another context:

"It is often convenient before counsel address the jury for the judge to hear legal argument in the absence of the jury, and to indicate to counsel the way in which he will direct the jury upon the law. But this is better done at the conclusion of the case for the defence when all the evidence has been led." (Emphasis added)

62. We were also surprised by the judge's assumption in these passages that the deceased had in fact consumed drugs on the night before she died. The prosecution did not accept that this was so and PW2 had specifically said that she did not see the deceased consuming drugs. This was a strongly contested issue which was for the jury to decide. Therefore, we would respectfully suggest that what the judge ought first to have done was to have directed the jury that this issue was a question of fact for them to resolve at the outset and then to have pointed out the factors which were said to support a case of 'overdose' and those which contradicted it.

63. There was much, as Mr Saw was easily able to demonstrate, which suggested that the possibility that the deceased had fatally overdosed on 'ice' shortly before her death was an afterthought introduced by the defence to cloud an otherwise reasonably straightforward case of homicide, at least so far as D1 and D3 were concerned. We shall deal later with the position of D2 whose case was in a somewhat different category.

64. It may be, of course, that the judge's reference to a 'supervening event' and to it being a 'question of fact and degree in each case', was intended to say no more than that the evidence showed prolonged and serious assaults and that the suggested consumption of drugs was a supervening event in the literal sense. In other words, the judge may have simply been saying that the deceased had consumed drugs after continual assaults and that it was not a matter of importance to the jury's determination of the cause of death, so long as the jury were sure that the assaults were a significant cause of death and no matter to what extent, if indeed any at all, the drugs, if consumed, may have weakened her further or advanced her death. If that is what the judge intended to say then, as a matter of law, what he said was accurate.

65. The problem however is twofold. Firstly, what was the jury to make of these passages in the absence of evidence which addressed the question which the judge chose to raise? Putting this another way, if the jury thought that there was an overdose which had contributed to death, on what material could they determine whether, nonetheless, the deceased died as the result of the assaults upon her? The judge had posed a question for their consideration which was never raised with the pathologist, rendering it unanswerable unless the jury resorted to speculation.

66. Secondly, we have been left unclear as to the meaning behind the sentence: ".... if the jury thinks that it is or may be possible that the deceased died from a drug overdose, it is a factor to be taken into account by the jury in deciding whether the prosecution has established that notwithstanding this possibility, the injuries inflicted by the defendants had significantly contributed to the death of the deceased." Mr Saw was unable to offer a possible meaning to this sentence, and it is one which we regret to say appears to make no sense in the present context. We feel bound to categorise this as a misdirection amounting to a material irregularity. On a central issue of considerable importance, this was a confusing direction which standing alone seems to say that even if the deceased died from an overdose, the Applicants could still be guilty. On the facts of this case, that could not be accurate. Indeed, given what the judge said time and again in the remainder of his summing up, to which we shall shortly turn, it cannot be what he intended to say.

67. To be set against the apparent problems posed by these particular directions there were three redeeming features which were plainly before the jury. Firstly, nobody had presented the case, at any stage, on a footing other than that the cause of death was either assault injuries on the one hand, or a drug overdose on the other. Secondly, the rest of the summing up was infused with clear and repeated directions that if the deceased may have died of an overdose of 'ice' then neither murder nor manslaughter was proved or, looked at another way, that guilt could not be proved unless the jury was sure that the deceased had died as a result of injuries inflicted by the Applicants. Thirdly, the overwhelming weight of the evidence was that death had resulted not from drugs but from the maltreatment to which the deceased had been subjected.

68. Towards the close of submissions on these applications, Mr Raffell, to whom we are indebted for his sensible and measured arguments, was asked upon what basis this jury, following the directions given by the judge including those which have been identified as unnecessary or erroneous, could have convicted the Applicants as they did, unless they were indeed sure that the death of the deceased was caused by the assaults. That was a question which he found difficult to answer and we can readily see why this should be so. Confusing though the criticised passages were, and unnecessary though the introduction of 'significant cause' was, we are satisfied that the jury could not realistically have been misled into thinking that although the deceased died as a result of an overdose of drugs, nonetheless the Applicants could be found guilty of manslaughter.

69. The jury had heard closing speeches which gave to them a choice between two causes of death. There was no suggestion as we have said already, either from the defence or from the prosecution, that the two causes may have combined to cause death. Prosecuting counsel's stance was that the suggestion of drug overdose was a red herring, and a recent invention, but that "if it was a drug overdose, then these men were plainly not responsible for her death" (Appeal bundle p. 2169).

70. So, also, when the judge addressed the jury both at the outset of his summing up and in the later stages of the summing up, he clearly directed them they could not find the Applicants guilty unless it had been proved beyond a reasonable doubt that the deceased had died as a result of the assaults:

"What is in dispute is what did she die of? Did she die, as the prosecution says, of injuries sustained as a result of the series of assaults inflicted upon her by the three defendants? Or did she die of a drug overdose as suggested by the defence?

Now in the course of my summing up, members of the jury, I will tell you that the cause of death - what we call causation - is very important because if you find that the prosecution has not proved beyond a reasonable doubt that (the deceased) did die of the injuries sustained as a result of the series of assaults, if you find that that is not proved by the prosecution, that means that on the 1st count you must find the defendants not guilty of both murder and manslaughter. (Emphasis added) (Appeal bundle p. 2)

71. Here, we can pause to say that nothing could have been more clear. Had the issue been left as well defined as that, the ground that has taken up most of the energies of counsel and this court would not have been raised.

72. The judge continued a little later to identify the issue as a choice when he reminded the jury that the prosecutor had invited them to infer "that the injuries were caused by the assaults and that (the deceased) died as a result of those injuries" whereas the defence "ask you to draw the inference .... that (the deceased) died not from any injuries sustained as a result of the assaults but of a drug overdose". (Appeal bundle pp. 10-11)

73. In directing the jury as to the ingredients of the offence of murder he told them, in one of the several sheets of paper distributed to the jury in the course of the summing up, that they could not convict unless sure that first the defendant "committed an act or acts which caused the deceased's death". So too, in a separate 'handout' entitled "Manslaughter by reason of lack of intent", the jury were told in terms that the prosecution had to prove that the defendant whose case they were considering had committed an act or acts which caused the death.

74. Later, when the judge turned to causation in further detail, he said:

"The defendants have each admitted that they had at least used their hands to assault the deceased. They have, however, said or suggested that the deceased did not die as a result of the assaults, and they have suggested that the deceased died of a drug overdose. Now, that is the matter of causation which I mentioned to you earlier on. And with causation, members of the jury, if you find that causation has not been proved by the prosecution beyond a reasonable doubt, that means that you should find the defendants not guilty of murder and manslaughter." (Appeal bundle p. 18)

75. After this, the judge gave the jury a definition of manslaughter which is not criticised. He pointed out that it was necessary for the prosecution to prove that:

".... the defendant committed an act or acts which caused the deceased's death. Which is why I said to you that if you find that causation has not been proved then you should find the defendants not guilty of murder and manslaughter." (Appeal bundle p. 19)

Later, he continued:

"So members of the jury, on the question of causation, if you are not satisfied beyond a reasonable doubt that the prosecution has proved the causation, namely that (the deceased) died as a result of the injuries which she sustained as a result of the assaults upon her by the defendants, then you must find the defendants not guilty of murder and manslaughter." (Appeal bundle p. 25)

76. The judge also addressed the jury about direct and circumstantial evidence saying that there had not been direct evidence whether the injuries inflicted by the Applicants "in fact led to the death of (the deceased)" and, again, that there was no direct evidence "which can prove the deceased died as a result of injuries sustained as the result of the series of assaults". (Appeal bundle p. 28)

77. When advising the jury on the law of joint enterprise, the judge said that it did not matter which Applicant "had inflicted the injuries which the jury may find were sustained by (the deceased) and which caused her death". (Appeal bundle pp. 30-31)

78. Later, the judge dealt with how D1 would stand if the jury found that D1 had supplied the 'ice' to the deceased. He directed the jury that this would not have "caused" her to have a drug overdose. He then continued:

".... so if you are not satisfied beyond a reasonable doubt that (the deceased) died as a result of the assaults, and you think that it is possible that she died of a drugs overdose, then just because (D1) supplied her with the 'ice', it does not mean that he caused her death, so you should disregard that particular fact when considering causation.

I mention that because Mr Polson (for D2), in his address to you, had said if (the deceased) died of a drugs overdose, then D1 is responsible. Well, that is not legally correct, members of the jury. If she died of a drugs overdose, nobody is responsible, not even D1." (Emphasis added) (Appeal bundle p. 39)

79. Towards the end of the summing up, the judge provided a further 'handout' headed: "Questions you will need to ask yourselves on the murder count". The first question posed was:

"Are you sure that a particular defendant committed the act or acts which caused the deceased's death?"

80. Turning next to the weight of the evidence, it all pointed one way. The whole of the defence case on the issue of overdose found its origin in a statement made by PW2 to the police that on the day before the deceased's death she saw the deceased who "looked painful, like a junky tortured by the urge" (Appeal bundle p. 1613). This was not, of course, so much a description of someone who had overdosed on drugs as a portrayal of someone suffering the symptoms of withdrawal. Nevertheless, the pathologist was able to say that some of the symptoms which PW2 described were consistent with a drug overdose, although, at the same time, the pathologist was not saying that these symptoms were inconsistent with the behaviour of someone who had been battered and gravely injured by physical assaults. On the contrary, he explained that if she had been kicked and assaulted all over her body, for which there was overwhelming evidence in support, she would have:

"multiple injuries to her soft tissue and that of course would lead to a great deal of pain, not to mention emotional suffering, fear and anxiety, and all this could explain her wriggling and this sort of movement of her body. Secondly, if she was assaulted all over the body this might have caused injuries to her chest wall. The injury to her chest wall might have caused, first of all, fracture of ribs and .... damage to the lung tissue and .... bleeding .... into the chest cavity surrounding the lung. All these three factors .... might have impaired the breathing capacity of an individual, .... causing difficulty in breathing." (Appeal bundle p. 1724)

81. We have borne in mind also that there was very strong evidence that the deceased had been subjected to serious assaults not only on a regular basis during the many days of her captivity but also on more than one occasion on the day before her death. Most importantly, this included an occasion immediately before the deceased was seen in the condition described by PW2 upon which the defence relied to suggest that she had overdosed on 'ice'. The effect of PW2's evidence, which from the verdicts it is plain was preferred to that given by the Applicants, was that in the early hours of the morning, after she had seen the deceased lying prone and motionless on the toilet floor, , she saw D1 using a water pipe to hit her on her chest. Then, much later in the day, before PW2 walked into Room 3 and saw the deceased apparently picking something off the floor, she had heard banging noises of the kind she had heard before. When she was asked in what connection she had previously heard such sounds, she said they were when the deceased was being assaulted.

82. It is also to be noted that when PW2 then went into Room 3 to investigate, there were no symptoms at all of overdose. This was said to have been five or ten minutes before the symptoms upon which the defence relied for their case of 'overdose' were observed. During that five or ten minute period, PW2 heard more banging noises which were again consistent with the noises of assaults on the deceased. It was only after this last stage that the deceased was seen in acute pain and with heavy breathing. No doubt these were symptoms consistent with an overdose but they were obviously not inconsistent with a violent series of beatings at the hands of D1 and D3 both of whom were present in the flat at the time.

83. This chronology of events and the descriptions given by PW2 ending with the symptoms described by PW2, realistically seem only capable of reflecting the results of fatal injuries rather than an extremely sudden collapse from an overdose of drugs. When the deceased was seen earlier in the day lying helplessly on the toilet floor in a semi-conscious state, she self-evidently, given her conduct later in the day, had not found herself in that state as a result of drugs. No one suggested that she had overdosed then and it can only follow that her poor condition later was again as a result of assaults upon her. Furthermore, the deceased was not seen by PW2 to have consumed drugs before her ultimate collapse. PW2 could not say what it was that the deceased had picked off the floor and she was clear that she did not see her consume what she had picked up.

84. We have not overlooked, in reaching our conclusions, the account given by D2 that when he returned to the flat after the deceased's death, he saw blood in the deceased's ears as well as in her nose. As to the significance of this, the pathologist was quite clear. He said it was not usual to find bleeding in the ears in cases where there had been drug overdose. Instead, the likely cause for bleeding in the ear was localised trauma such as a blow, kick, or punch to the ear, or a rupture of the ear drum from a heavy slap to the face.

85. We have observed also that PW2, who had lived in this drug-taking environment for at least four weeks, said in evidence that when the deceased died, it did not even occur to her that the deceased had overdosed. In the same context, the reactions of the Applicants at the time of their arrest are each remarkable for the absence of any suggestion whatsoever of the cause of death arising from a drug overdose. D2 and D3 accepted, for their part, that the deceased had died as a result of the assaults upon her. This point, which the prosecutor emphasised in his closing speech, is highly significant. D2 spoke in his first interview in May 1999 about having told D1, who had beaten the deceased "beyond the limit and couldn't stop himself", not to beat her anymore. He also said to D1 "something wrong will happen if you keep on beating her" and that she would be beaten to death. In his second interview, he said that the deceased had been badly hit and was injured on her abdomen and chest. He described an occasion when, to his knowledge, D3 had stood on a chair and jumped down to kick her. He spoke also of how the deceased's head had been beaten with a pole and how, on another occasion, she was "seriously injured". D2 said at one stage that D1 had told him that the deceased had died of internal injuries.

86. When D3 was arrested nearly a year after these events, having earlier fled from the jurisdiction, he told the police that the deceased had unintentionally been beaten to death by the exertion of too much force. He described various assaults on the deceased. More importantly, he said that the beating on the day before her death was because she had stolen 'ice'. She was beaten all over with fists and feet after which she was: "lying down there .... like she fainted. We thought she was feigning death" but she was found dead the following morning.

87. There was no suggestion by any of those who were in the best position to have known what had happened that the deceased may have died for any other reason than the assaults upon her.

88. Whilst dealing with the reactions of the Applicants on their arrest, there was also evidence of their reactions to the death of the deceased. PW2 was asked what D1's reaction was after it had been discovered that the deceased had died. Her evidence was that:

".... He said something like 'Just a few kicks could kill somebody' .... Also [D3] said 'I'm not sure if just those few kicks that cause her death'." (Appeal bundle p. 1532)

89. It was later put to PW2 by D1's counsel that after the death had been discovered, D1 had said to D3: "I had told you not to kick her head". PW2 accepted that this had been said. PW2's answers provided strong evidence, as against D1 and D3, that the deceased had been subjected to a head-kicking assault shortly before her death and that this is what they thought was the cause of her death.

90. It was submitted by counsel in these proceedings that none of the matters upon which we have touched excluded the possibility of an overdose of drugs. We take the view, as we believe the jury must inevitably have done, that when the evidence is looked at realistically and as a whole, this possibility was indeed excluded.

91. We are satisfied that it is unrealistic in the circumstances of this case to say that anything in the judge's summing up might have caused the jury to convict of manslaughter unless they were sure that the assaults caused death.

92. This being so, and fortified as we are by the weight of the evidence in the case, despite the unsatisfactory nature of the directions on the issue of causation which amounted to a material irregularity, we consider that no miscarriage of justice has actually occurred. Accordingly, on this aspect of the application, we propose to utilise the proviso to section 83 of the Criminal Procedure Ordinance, Cap. 221.

(2) The introduction of prejudicial evidence

93. In a ground which was not supported by counsel for the other Applicants, it was argued on D1's behalf that highly prejudicial evidence, which should have been ruled inadmissible, was introduced at trial against D1. This complaint related in the first place to the evidence which showed that all the Applicants were triad members and that D1 held a more senior rank to the others. The second category of evidence concerned the introduction of evidence involving some of the macabre details about the dismemberment of the corpse.

94. Dealing firstly with the evidence about the triad background of each Applicant, the proposition that this should not have been admitted was unsustainable. It seems, from what Mr Raffell was helpfully able to tell us, that it was made abundantly plain, when D1's counsel objected to the introduction of this evidence at trial, that D2 and D3 would be introducing such evidence in any event. This left D1's counsel with what amounted to a token objection.

95. Mr Saw accurately summarised the situation when he said that the whole case was redolent with triad overtones. This background, as he pointed out, was integral to the cases presented on behalf of D2 and D3 in order to explain how they came to be involved and how the deceased came to be at the flat. Furthermore, the consumption of 'ice' at the flat was an important issue which all the Applicants were anxious to establish and quite obviously, on this aspect of the case, D1's role as a consumer, if not also a trafficker, was bound to emerge. Equally, D1's prior association with the deceased who had worked as a prostitute in the same establishment where he worked as a cashier was certain to be adduced in evidence.

96. It is not in the least surprising that counsel for the defence of D2 and D3 had no objection at trial to character evidence being led. There were valid tactical reasons for this. In what was to some extent a 'cut-throat' defence, D1 easily emerged as the most sinister amongst the Applicants who was likely to have been their leader. There is no merit in the argument that this evidence should not have been admitted.

97. So far as the evidence about the dismemberment of the body is concerned, Mr Whitehouse was able to point to an objection taken to the introduction of this evidence at trial by Mr Raffell on the basis that it was more prejudicial than probative. Plainly this evidence had some relevance as Mr Raffell had accepted. His solution at trial had been that the jury could be provided with a series of facts admitted under section 65C of the Criminal Procedure Ordinance in order not only to spare the jury and the witness (PW2) the awful details of how the body was dismembered and how parts of it had been cooked, but also to prevent the prejudice which was likely to be felt towards the Applicants once it was realised what they had done.

98. In our judgment, the prosecution was entitled to lead this evidence for a variety of reasons. Leaving aside that this was evidence of a continuing series of events, it explained the absence of a body and the pathologist's inability to test successfully for drugs in the light of evidence that parts of the body had been cooked. It also revealed who was responsible for the disposal of the corpse. In this context, the jury were entitled to consider whether this hideous task was undertaken because of an anxiety on the part of those most closely concerned to cover up the atrocious treatment to which the deceased had been subjected for so long. The evidence was relevant also to support the prosecution's allegation of a killing in which the Applicants had all played a role rather than a death which had merely occurred by reason of an accidental overdose of drugs.

99. We have said already that Mr Saw had accurately and responsibly highlighted the very aspects of the case which required close scrutiny on these applications for leave to appeal, and that when he did this none of the Applicants had the benefit of legal representation. All of the matters he raised have been adopted by counsel now instructed on behalf of the Applicants. The introduction of prejudicial material was not amongst them. With this in mind, it was all the more surprising that when Mr Whitehouse proceeded to argue that D1 had been prejudiced by some of the photographs which were put before the jury, he complained that the "authorities" had effectively prevented him for six months from seeing what they contained.

100. The "authorities", to use Mr Whitehouse's expression, had done nothing of the kind. During a short enquiry, it became apparent that Mr Whitehouse's criticism as to the non-disclosure of the trial photographs was aimed at counsel appearing for the Respondent although they were wholly blameless. It emerged that the solicitors who were instructed by the Director of Legal Aid had sensibly and properly written a few letters to the Legal Aid Department to obtain the photographs produced at trial but the Department was unable to supply them. Mr Whitehouse, for his part, caused no approach to be made to the Department of Justice until about a week before these proceedings commenced. Furthermore, Mr Whitehouse had made no attempt to look at the copies of the photographs held by the court in order to decide whether they could be utilised in support of this ground of appeal.

101. As it turned out, this was a point which was devoid of any merit and Mr Whitehouse's thinly veiled criticism directed at the Respondent's counsel was irresponsible. When counsel sees fit to make an allegation which is likely to reflect on the integrity of other counsel, even when done inferentially, as Mr Whitehouse did in these proceedings, without actually naming counsel, this should only be done after the most careful consideration based upon a proper investigation of all the circumstances. Leading and junior counsel for the Respondent in these applications have done everything in their power to act with fairness and openness towards the Applicants, as clearly evidenced by the fact that they themselves drew matters of concern to the court's attention, and the poorly judged and wholly inappropriate criticism which was made of them was nothing short of a disgrace. It is a matter of regret that, when given the opportunity to apologise, Mr Whitehouse offered such a qualified reply that it amounted to no apology at all.

102. The judge, rightly in our view, allowed the evidence to be admitted.

103. Whilst it was not the subject of specific complaint in the grounds of appeal, we should add that we had been somewhat disturbed by a number of highly emotive statements, based upon the evidence to which we have just referred, which were made by the prosecutor at trial both in cross-examination and in his final speech. All that we perhaps need to say is that this was an emotionally charged trial in which such comments were more than usually out of place.

104. This ground fails.

(3) Burden of proof

105. In his last substantive ground, Mr Whitehouse complained that the judge, following the directions which are invariably given to a jury on the burden and standard of proof, had later gone on to give other directions which effectively reversed the burden of proof. His complaint focused on the judge's comment that if any defendant's evidence managed to create a reasonable doubt in the minds of the jury about whether a particular defendant was guilty, they should give the benefit of that doubt to the defendant in question.

106. There is no substance to this ground. Throughout the summing up, the jury had been told in the clearest terms that the burden of proof rested on the prosecution and that there was no burden on the Applicants to prove anything. When the comment which is criticised was made, the judge was merely stating that a reasonable doubt may arise from a number of possible sources and that one of them might come from the evidence given by a defendant.

107. There was in D1's case no basis for saying that his conviction for manslaughter was unsafe or unsatisfactory.

(4) Joint enterprise

108. When Mr Saw informed the court of his concerns about the directions given to the jury, he said, with regard to joint enterprise, that whilst these may strictly have been correct in law, they might arguably have been insufficiently directed towards specific incidents for the purposes of enabling the jury to establish the precise responsibilities of the respective Applicants. This perceptive comment had particular significance to D2, and we shall turn shortly to the generalised directions which were given to the jury on this topic to see why that is so.

109. Mr Saw has conceded throughout that whilst the evidence was, in parts, far from clear as to D2's whereabouts in the last days of the deceased's life, the jury were at least entitled reasonably to conclude that D2 was absent from the Granville Road flat on the day before she died and for a period which was perhaps rather longer.

110. Of particular significance to this aspect of the case was the evidence given by PW2 who made no reference to D2 being present at the flat when she saw D1 assaulting the deceased with a water pipe or when she heard the sounds of her being assaulted during the time shortly before her death. The fact that the evidence as to D2's whereabouts was unclear did not, as Mr Saw acknowledged, relieve the judge of the task of providing a specific direction to cover D2's involvement in an alleged joint enterprise killing in the event that the jury concluded that D2 was absent from the flat when the fatal blows may have been struck.

111. This theme was taken up to some extent by Mr Richard Donald, on behalf of D2, who did not appear in the court below. He submitted that the judge had failed adequately to explain to the jury that it was important for them to determine "whether or not (the deceased) had been assaulted the night before her death, and the nature and degree of that assault, this assault occurring in the absence of (D2)". Mr Donald also submitted that D2's absence on the night before the deceased died when the "fatal beating" may have occurred, was a "significant event calling for some emphasis". He accepted that while D2 had taken part in a large number of the earlier assaults on the deceased, the evidence showed that later on D1 and D3 had plainly subjected the deceased to one or more serious assaults, without any participation from D2, and that these might well have been considered by the jury to have caused her death.

112. Helpfully, in this context, Mr Saw provided us with a formula for the directions which he suggested should have been given. These seem to be derived from what was said in R v Rook [1993] 97 Cr App R 327 at 331, adopting Chan Wing-siu and others v R [1985] 80 Cr App. R 117. In summary, the suggested formula stated that if the jury concluded that D2 was absent during an assault on the deceased on or about the night before her death and that she died as a consequence, it then became a matter for them to decide whether, nevertheless, D2 was liable as a participant in an ongoing joint enterprise to keep the deceased imprisoned in the flat and to assault her there. If so, they should decide whether D2 reasonably foresaw that there was a real and substantial risk that one or both of the others would treat the deceased in the way that they had found had caused her death.

113. It was, after all, Mr Saw submitted, just another beating to add to the many others she had suffered beforehand and it must have been almost a foregone conclusion that the others would assault the deceased.

114. The question we have had to ask ourselves, therefore, is whether the directions given by the judge on joint enterprise sufficiently dealt with D2's criminal liability if the deceased, in his absence, received a beating at the hands of the others which turned out to be fatal. The directions given by the judge were in these terms:

"The prosecution's case, members of the jury, is that this was a joint enterprise involving all three defendants and this was a joint enterprise which included an agreement to abduct (the deceased) to the flat and keep her as a prisoner in the flat, and while she was kept as a prisoner, to murder her, which means either to kill her or to cause her grievous bodily harm.

They say that the joint enterprise started with the bringing of (the deceased) back to the flat and did not end until all the body parts of (the deceased's) corpse were disposed of, and so they say this was a continuing joint enterprise which involved all three defendants.

Now, what is a joint enterprise, members of the jury? I have a hand-out for you on joint enterprise.

The prosecution's case is that each defendant committed these offences together with the other two defendants. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are acting together as part of a joint plan or agreement to commit it, they are each guilty.

The words 'plan' and 'agreement' do not mean that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment. Nothing need be said at all. It can be made with a nod and a wink or a knowing look, or it can be inferred from the behaviour of the parties.

The essence of joint responsibility for a criminal offence is that each defendant shares a common intention to commit the offence and plays his part in it, however great or small, so as to achieve that aim. In those circumstances, it does not matter which of the defendants had inflicted the injuries which the jury may find were sustained by (the deceased) and which caused her death.

Your approach to the case should therefore be as follows. On the murder count, if, looking at the case of each defendant, you are sure that he did an act, or acts, as part of a joint plan or agreement with any or both of the other two defendants to kill or to cause really serious bodily harm, he is guilty.

Put simply, the question for you is were they in it together. In respect of the false imprisonment against (D2), if you are sure that he did an act or acts as part of a joint plan or agreement, with any other person, to unlawfully and injuriously imprison (the deceased) and to detain her against her will, he is guilty. The question there is, again, were they in it together.

It is the law that when two or more persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise. That includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise. However, if a participant in the venture goes beyond what has been expressly, or tacitly, impliedly, agreed as part of the joint enterprise, the other participant, or participants, are not liable for the consequences of the unauthorised act.

It is for the jury to decide whether the thing which was done was part of the joint enterprise or whether it was, or may have been, an unauthorised act and therefore outside the scope of the joint enterprise.

It suffices to found a conviction for murder for any defendant to have realised that, in the course of the joint enterprise, the other defendant, or defendants, might kill with intent to do so or with intent to cause grievous bodily harm. To realise something might happen was to contemplate it as a real and not a fanciful possibility. If the realisation is of some harm, not really serious bodily harm, then this would found a conviction for manslaughter for the defendant so realising.

If a defendant realises, without agreeing to such conduct being used, that the other defendant or defendants may kill or intentionally inflict serious injury but, nevertheless, continues to participate with the other defendant or defendants in the venture, that will amount to a sufficient mental element for that defendant to be guilty of murder if the other defendant or defendants with the requisite intent of killing or causing serious bodily harm kills in the course of the venture.

That defendant has, in those circumstances, lent himself to the enterprise and, by doing so, he has given assistance and encouragement to the other defendant or defendants in carrying out an enterprise which he realises may involve murder.

If the realisation is of some harm, not really serious harm, then this continued participation would found a conviction for manslaughter for that defendant.

Where one party departed completely from the concerted action of a common design by forming an intent to kill involving the use of a weapon and acted in a way no party to the common design could contemplate, the other parties are not guilty, either of murder or manslaughter.

Suggested questions that you may wish to ask yourselves. One, did a defendant know what the other defendant or defendants had done to the deceased?

Two, did a defendant by his own actions cause the death of the deceased?

Three, when that defendant committed the assaults that he himself did, which caused the death of the deceased, did he intend to kill the deceased or to cause her serious bodily harm?

Four, was there a joint enterprise between all three defendants or between any two of the defendants and, if so, what was the joint enterprise? Was it simply to falsely imprison the deceased, or was it to imprison her and cause her serious bodily harm, in which case it can be murder, or was it to imprison her and cause her some harm less than serious bodily harm, in which case it can be manslaughter.

Five, if the joint enterprise was simply to falsely imprison the deceased, did a particular defendant realise that, in the course of carrying out that joint enterprise, the other defendant or defendants might kill the deceased or cause her serious bodily harm?

If a particular defendant realises that death or serious bodily harm was a virtual certainty and continues to participate in the joint venture to falsely imprison the deceased, he may be guilty of murder if the realisation is that the other defendant or defendants may cause the death of the deceased or cause her serious bodily harm, or manslaughter, if the realisation is the other defendant or defendants may cause the deceased some harm less than serious bodily harm." (Appeal bundle pp.30-33)

115. Mr Saw rightly suggested that in the last paragraph of these directions, the judge had come closest to dealing with D2's situation in the context of a joint enterprise where one of the participants had been absent at a time when it may be that the fatal blows were struck.

116. The judge went on to remind the jury that the Applicants had all admitted they had "at least assaulted (the deceased) with their hands" and he posed the question in relation to each of them: "When he did that, did he know what the other defendants had done to the deceased?" Then, regarding the cumulative effect of the assaults, the judge went on, with reference to the numbered questions he had posed earlier, to say:

"Now, if a defendant commits an assault, or commits assaults on the deceased which in fact cause the death of the deceased, when he committed the assaults, did he intend to kill the deceased or to cause her serious bodily harm?

Now, that may not be such an easy question to answer because, even on the prosecution's case, this was a series of assaults the cumulative effect of which was to cause the death of the deceased. So it's not as if one assault by one defendant in fact caused the deceased to die. It was cumulative over a period of time and over a number of assaults.

So the question really is, when the particular defendant committed the assault that he himself did, did he know what the others had done? Did he know that, by his own actions, he might cause the death of the deceased, and did he intend that the deceased should be killed or be caused serious bodily harm?

If the answers to those three questions are no, in the negative, then question number 4 may be relevant. Was there in fact a joint enterprise between all three defendants or between any two of them and, if so, what was the joint enterprise? Was it just to falsely imprison, or was it to imprison and cause serious harm, or was it to imprison and cause some harm less than serious bodily harm?

If it is number 2, imprison and cause serious bodily harm, and that person takes part in that joint enterprise, then he can be guilty of murder. If it is number 3, namely a joint enterprise to imprison and cause some harm less than serious bodily harm, and that person, that defendant, takes part in that joint enterprise, he is a member of that joint enterprise, he takes part in it, he does his bit in it, then he can be guilty of manslaughter.

If the joint enterprise was simply to falsely imprison the deceased and nothing else, then the particular defendant, when he takes part in that joint enterprise, realised that, in the course of carrying out that joint enterprise, the other defendants might kill the deceased or might cause her serious bodily harm, if a particular defendant realises that death or serious bodily harm was a virtual certainty because of the actions of the other participants and he himself continues to participate in the joint venture to falsely imprison the deceased, he may be guilty of murder, if he realises that the other defendants may cause the death of the deceased or cause her serious bodily harm.

But if he only realises that the other defendant or defendants may cause the deceased some harm less than serious bodily harm in carrying out the joint enterprise to falsely imprison, and he takes part in that joint enterprise, he may be guilty only of manslaughter. So I hope that is clear, members of the jury." (Appeal bundle pp. 34-35)

117. It can readily be seen, as Mr Saw conceded long ago when expressing his concern about these directions with specific regard to D2, that nothing was said to the jury to indicate sufficiently how and in what circumstances, if D2 was absent from the flat at the time of the assaults which led to the death of the deceased, he could be convicted of participation in her killing. Indeed, whether he could be found guilty of manslaughter at all in these particular circumstances is not easily answered.

118. No doubt one important factor which the jury could have borne in mind when considering D2's role in an ongoing joint venture was that D2 admittedly returned to the flat in Granville Road after the killing and gave assistance in dismembering the body. This important evidential feature, however, does not cure the omission to which we have referred or the failure to direct the jury as to D2's foresight of consequences whilst away from the flat himself, along the lines proposed by Mr Saw.

119. In this context, it is right to add that a withdrawal by D2 from the enterprise was never, as Mr Saw observed, relied upon as such as a defence. Furthermore, D2's return to the flat at a time when he was unaware of the death of the deceased and his readiness to assist with the disposal of her corpse tended, he submitted, to negative any suggestion that he had withdrawn from the venture. This aspect of D2's case was also touched upon by counsel for the prosecution at trial when he said:

".... as you consider this joint enterprise, bear in mind .... it began on 17 March and ended with the body parts going out on the truck .... ask yourself this: did any of these defendants withdraw from that joint enterprise ....? Did any one of them put up his hand and say, 'That's it, I'm out'? Not one of them .... did that. All the men who presented themselves for the gruesome task of chopping up her body, signalled that they were still in that joint enterprise, they were part of it and as the evidence discloses, they did not leave until the job had been done." (Appeal bundle p. 2168)

120. In his video-recorded interviews, D2 had also alluded to this aspect. He had spoken of returning to Tuen Mun to stay there with his family for "two or three nights". When asked if he wished to clarify anything he had said, towards the end of his third interview:

".... after I came to know that what I did was wrong, I thought about it carefully. By the time I got away (from the problem) by walking away from it, really, I had already known .... I was ill at ease and was sorry ...." (Appeal bundle p. 688)

121. It is plain from this extract that D2 failed to communicate his intention to withdraw from the venture. This has for a long time been an important factor when considering the complicity of an absent participant to a crime. Returning once more to R v Whitefield [1984] 79 Cr App R 36 at 39-40, Dunn LJ giving the judgment said:

"The law upon withdrawal is stated in Becerra and Cooper (1976) 62 Cr App R 212 and Grundy [1977] Crim L R 543. So far as material to the facts to this case, the law may be shortly stated as follows. If a person has counselled another to commit a crime, he may escape liability by withdrawal before the crime is committed, but it is not sufficient that he should merely repent or change his mind. If his participation is confined to advice or encouragement, he must at least communicate his change of mind to the other, and the communication must be such as 'will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the aid and assistance of those who withdraw." (See the Canadian case of Whitehouse [1941] 1 W.W.R. 112, 116, per Sloan JA, approved in Becerra and Cooper (1976) 62 Cr App R 212 and Grundy [1977] Crim L R 543).

122. If manslaughter by joint enterprise was an appropriate charge to bring against D2, rather than a series of substantive offences in which D2 was shown to have been actively involved, then we have to say, with respect, that a direction was also called for to deal with the possibility of D2's withdrawal from the venture. Whilst the evidence on this issue may well have seemed to be all one way, it was nevertheless, as a possible defence open to D2 on the basis of what he told police, for the jury to reach a decision upon it.

123. The shortcomings to which we have referred amounted to material irregularities and it is apparent that D2's conviction for manslaughter cannot stand. Rightly, there were no submissions in relation to D2's conviction on count 2 where there was overwhelming evidence of his complicity in the false imprisonment of the deceased.

(5) Rejection of D3's 'no case' submission

124. Mr Raffell advanced two grounds on behalf of D3 with which we have yet to deal. These are closely related and we can deal with them together. He contended, firstly, that the trial judge had been wrong to reject a submission at the conclusion of the prosecution's case that D3 had no case to answer. Secondly, he submitted that the prosecution failed to produce evidence that D3 had caused or contributed to the deceased's death or that he was part of a joint enterprise which had done so.

125. Mr Raffell's point on both these grounds, leaving aside the issue of causation with which we have dealt already, was largely concerned with the absence of direct evidence of D3's participation in the final assaults on the deceased just before and just after she was seen by PW2 picking something up from the floor and putting it into some tinfoil.

126. We do not need to look at this aspect of the case in any depth. Whilst there was no evidence of D3 being seen to assault the deceased in the incidents shortly before her death, when PW2 heard "banging" sounds of the kind which she had come to associate with the deceased being assaulted coming from her room, nevertheless there was some evidence for the jury's consideration that D3 had been involved. In one important passage in PW2's evidence in chief on this issue, related to a time just after the deceased had been found dead, there was following exchange:

"Q. Now, who was with you when you found her like this, dead?

A. I was with (D3).

Q. Now, what was his reaction when it was apparent that she was dead?

A. Then he went into Room 4 to talk to (D1).

Q. Did he say anything?

A. (D3) said, 'she's dead' .......

Q. Yes. Did he say anything about the fact that she was dead?

A. After that later I heard (D1) say something. It seems that just like what (D3) told me, that he said something like, 'Just a few kicks could kill somebody.'

Q. Who said that?

A. (D1) said it.

Q. Was anything more said about kicks killing somebody?

A. Also (D3) said, 'Chop it into pieces and flush it down the toilet.'

Q. Before that was anything said about kicking causing her death?

A. (D3) did say something to me.

Q. What did he say?

A. He said it in a very unhappy mood. He said to me, 'I'm not sure if just those few kicks that cause her death'.

Q. That was (D3). Did (D1) say anything about kicking?

A. No." (Appeal bundle p. 1532)

127. It is plain from these remarks that D3 was closely involved in the attack on the deceased. This becomes even more obvious from a study of his interview with the police. In these, he admitted that on the day before the deceased was found dead, she had stolen some 'ice' which was intended for D1's consumption. D1 scolded her and "then we beat her again .... with fists and legs/feet as well .... (she was) beaten all over". He agreed that this was a beating to parts of the body which included the head. At the end, he said, the deceased was lying down and D3 thought she was "feigning" death. He went on to say that he "found her dead when (he) went to the toilet the following morning".

128. There was ample evidence to go to the jury which, if believed, revealed that D3 was directly connected with acts which had, subject to the conclusions of the jury, caused the deceased to die.

129. These grounds fail.

Conclusion

130. Having regard to some of the grounds of appeal which we have had to consider, we propose to grant leave to all the Applicants to appeal. We have, in these circumstances, treated the hearing as the appeal.

131. In all three appeals, as we have indicated already, there was a material irregularity in the directions given to the jury on causation but as no miscarriage of justice has actually occurred in the cases of D1 and D3, we propose in their cases to apply the proviso in section 83 of the Criminal Procedure Ordinance. As there was no merit in the other grounds raised on their behalf, their appeals are, accordingly, dismissed.

132. In the appeal of D2, as we earlier stated, there were material irregularities arising from the omissions in the directions regarding D2 as to joint enterprise and his possible withdrawal from the joint venture. Accordingly, D2's conviction for manslaughter will be quashed.

133. We shall in due course hear counsel on behalf of D1 and D3 in relation to their applications for leave to appeal against sentence when a suitable date can be found.

134. More immediately, we shall hear counsel for D2 and for the Respondent with regard to whether, in his case, a re-trial should be ordered on the charge of manslaughter under the provisions of section 83E of the Criminal Procedure Ordinance.