THE QUEEN v. LUK SIU KEUNG

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JUDGMENT

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Li, J.A.:

1. This is an appeal by way of His Excellency's reference pursuant to the provisions of section 83P(1)(a) of the Criminal Procedure Ordinance.

2. The appellant was convicted of murder and robbery. On the 22nd of January, 1981, a robbery occurred. In the course of which one Mr. HO Siu-kei was killed. There was evidence that 2 robbers took part in that robbery. The appellant was alleged to be one of the robbers.

3. It was a planned robbery instigated by a 3rd person who gave all the details and information about the place to be robbed. The 3rd person never joined the actual robbery. One of the 2 robbers by the name of HO Kin-on stabbed Mr. HO Siu-kei in the course of the robbery.

4. Medical evidence was that Mr. HO Siu-kei died of one stab wound, a deep wound, which penetrated his lung and heart. The evidence as to how that stab wound was caused was somewhat hazy. According to the government doctor who did the autopsy, it could have been caused in any one of a thousand ways which may well seem a gross exaggeration.

5. The killer HO Kin-on and the person who instigated the robbery were caught within days of that robbery. Ho being caught on the 27th of January, 1981 and the other person shortly thereafter. In the meanwhile, the appellant left Hong Kong on the 29th of January, 1981, 2 days after HO Kin-on was caught, and went to stay in China Mainland for a whole year. Efforts made to locate him in his place of work and in his home proved fruitless.

6. In the event, the 2 persons were caught. HO Kin-on and the other person were indicted for murder. Ho was eventually acquitted of murder but convicted of manslaughter and robbery. The other person was convicted of robbery only in the latter part of 1981. On or about the 31st of January, 1982, the appellant returned to Hong Kong. He learned that the police were looking for him. After consultation with members of his family, he presented himself on the 10th of February, 1982 accompanied by his solicitor, mother and brother to the Waterfront Police Station. At that time, he was advised he should make no statement or say anything whatsoever.

7. Soon after the preliminary procedures were over, he was transferred to the Happy Valley Police Station to be detained overnight. Around noon on the 11th of February, 1982, he was taken to see Chief Inspector Li at police headquarters, May House. Before the transfer his solicitor, Mr. Wong, visited him at Happy Valley Police Station and advised him again not to make any statement at all. Mr. Wong even went to the extent of talking to Chief Inspector Li, the officer in charge of the case, on the telephone and informed Li that the appellant would not make any statement of any sort.

8. When the appellant was brought before Chief Inspector Li, a certain Detective Sergeant Leung Ping also arrived at the Chief Inspector's office. Inspector Li told the appellant that he, the Inspector, was aware that the appellant had been advised by his solicitor not to make statement of any sort. Inspector Li went on to say that as a matter of procedure, however, it was his duty to interview or to obtain a statement from the appellant. He told Sergeant Leung to take the appellant to another room to interview him. The whole episode of this meeting between the appellant, Chief Inspector Li and the sergeant on that occasion took 2 - 3 minutes.

9. Immediately after that the sergeant took the appellant to the adjoining room No. 1118. He told the appellant the object of his inquiry and  administered to the appellant the usual caution. The sergeant then proceeded to ask a series of questions. The sergeant started off with some very innocuous questions as to whether the appellant was prepared to write the answers himself and whether he had any nickname etc. Then came the 6th question in which the sergeant asked:

"As you surrendered yourself to the police, I have reason to believe that you are connected with this case. Am I correct?"

The answer as recorded was:

"Yes. I only took part in the robbery. I did not kill anybody nor did I injure anyone."

Following this there was the 7th question:

"How did the incident occur?"

In answer to this question, the appellant gave a lengthy statement in the narrative form covering no less than 5 pages in writing. This answer practically admitted that he, the appellant, was the other participant with HO Kin-on in the robbery and killing on January 1981.

10. It was on this basis that the appellant was indicted for murder and robbery. All the aforesaid evidence as adduced was not challenged or disputed in the court of trial.

11. It is pertinent to observe that without this statement, all the rest of the prosecution evidence could only cast suspicion on the appellants. The statement was the only incriminating evidence which connected him with the offence of robbery and homicide. It was hardly surprising that right at the start of the trial the admissibility of this statement was strongly challenged and a voir dire was held for the purpose.

12. In the voir dire, the prosecution evidence was that the appellant surrendered to the police at the Waterfront Police Station in connection with the robbery and homicide case after a whole year's of absence from Hong Kong. He left his employment without notice near the end of the month of January 1981, without even waiting to collect his month's pay. At the earliest stage upon his surrender to the police, it was known that he had been advised by his solicitor not to make any statement.  However, he surrendered himself as he said in respect of a serious case. The police had to interview and to investigate him. Chief Inspector Li who was informed at about 5 p.m. on 10th February of the surrender was new on the job. He had no knowledge of the case. He had to find out from his subordinates someone who was familiar with this case and had to get the case file out of the record office. He eventually found Sergeant Leung Ping at about 8 p.m. Leung Ping was the person who knew something about the case because he was one of the investigating detectives right from the beginning. For security reasons, the appellant was detained overnight in the Happy Valley Police Station and was transferred to the Police Headquarters for an interview the following day.

13. With reference to the telephone conversation between Chief  Inspector Li and Mr. Wong, the solicitor, Li said that he did inform the latter that the applicant was in the course of being transferred to Police Headquarters for an interview. He also inquired of the solicitor whether he, the solicitor, would like to accompany the appellant there. Mr. Wong declined. Both Li and the sergeant denied strongly that any threat or inducement had ever been administered to the appellant prior to the making of the statment or at any  time at all.

14. The defence evidence concerning the appellant's absence from Hong Kong was that he merely spent a year in China. On his return ,he learned that the police had been looking for him at his home. After consultation with members of his family, he went with his solicitor and relatives to the police station to assist the police. However, he was advised by his solicitor that he was not obliged to make, and should not make, any statement.

15. Pausing at this stage for comment, the whole process appears to be a complete contradiction. If he were to say nothing and make no statement, the rhetorical question is: How could he assist, the police?

16. Be that as it may, the defence evidence continued that at the Police Headquarters Chief Inspector Li told the appellant that he must make a statement regarding his participation in the robbery even if he said nothing about the murder. Li continued to say that otherwise his subordinates would do the appellant harm and that he, Li, would not be in a position to stop them. It was on this note and in this atmosphere that the appellant was taken by Sergeant Leung to room 1118 where the sergeant threatened to beat him up again when he declined repeatedly to answer questions. He was so frightened by then that he made his statement.

17. The appellant admitted that he had no objection to answering the first 5 innocuous questions. However, he refused to answer the 6th question which referred to his surrender and the suspicion that he was connected with the robbery and homicide case. The sergeant fabricated the answer "Yes. I only took part in the robbery. I did not kill anybody nor did I injure anybody." The sergeant then continued with the 7th question "How did the incident occur?". He again refused to answer. The sergeant threatened him again and said that he would slap him if he would not answer.

18. He gave the answer to the sergeant in the form of a narrative statement because of the threat. He said.he told the sergeant everything except the last sentence of, answer viz: "I returned to home. After discussion with my family members, I came to surrender myself in the hope of getting a more lenient punishment."

19. The appellant's solicitor, Mr. Wong, also gave evidence in the voir dire about his conversation on the telephone with Inspector Li while he, Mr. Wong, was in Happy Valley Police Station. He admitted having told the inspector that he did advise his client that the client should make no statement of any sort in any circumstances. However, he categorically denied that he was ever informed that the appellant was about to be taken from Happy Valley Station to Police Headquarters for an interview and most particularly of having been invited to accompany the appellant there. He was never informed by Li as to when or where the interview would be taken place. The object of the exercise was to cast doubt on the veracity of Li's evidence - bearing in mind that Li said he did invite Mr. Wong to accompany the appellant. This in turn would cast doubt as to Li's denial of having administered a threat to the appellant.

20. Thus the issue for the admissibility of that statement was one of voluntariness and fairness. The question was whether it had been obtained from the appellant in the way put in the Crown's case, in which case there was no unfair play and the statement was entirely voluntary, or, as the defence put it which would mean that the Crown had failed to discharge  the burden of showing that the statement was voluntary.

21. The trial judge in his ruling on the issue rejected the appellant's evidence that he was threatened by Chief Inspector Li or by Sergeant Leung. The judge said that the appellant was not affected by the threat if there were one because the appellant did refuse to answer the 6th question in the course of the interview. However, the judge accepted Mr. Wong's evidence that he was never invited by Li to accompany the appellant to Police Headquarters. The judge also said that there was an explanation for the Chief Inspector's having said something to the contrary. On this point it is necessary to cite the judge's ruling in some detail in order to understand the situation. Holding that the statement was voluntarily made and admissible, the judge said in part as follows:

22. Nothing much turned on the evidence relating to this matter on the general issue. Suffice it to say that the inspector and the sergeant gave evidence relating to the voluntary nature or otherwise of the statement. Both were vigorously cross-examined and their conduct in the taking of the statement was thoroughly ventilated before the jury.

23. Both denied having threatened the appellant at all. However, in his evidence on the general issue, inspector Li did not adopt the explanation that was attributed to him by the trial judge in his ruling on the voir dire. He said that he did invite the solicitor to accompany the appellant on that occasion and that he was 100% sure that he had invited Mr. Wong. He could not have confused himself with any other case. The appellant elected to remain silent at the trial of the general issue and call no witness to substantiate the allegation he made before the jury.

24. In the event he was convicted of both murder and robbery.

25. The substantial ground of appeal before us is that the trial judge should never have admitted the cautioned statement. In support of this proposition, the reasons advanced are that firstly, the judge having rejected the appellant's evidence to the effect that he, the appellant, did not answer to the 6th question and having disbelieved the appellant's allegations about threats, he should not have found that on the appellant's own evidence the appellant was not affected by what Inspector Li said to him.

26. It is contended that once the judge accepted the evidence of Mr. Wong, the solicitor, he was wrong in speculating about what could well have confused the inspector in his conversation with Mr. Wong by concluding that

"there is an explanation for the discrepancy which I accept and that explanation being there, it does not affect the credibility of Chief Inspector Li's evidence."

27. Finally, it is said that even having admitted the cautioned statement on the voir dire, the trial judge should have reconsidered the admissibility of that statement when Chief Inspector Li, in his evidence relating to the general issue, repeated his assertion that he was 100% sure he had invited Mr. Wong to accompany the appellant to the police Headquarters.

28. Dealing with the first reasons in support of the argument, we are of the opinion that the judge's observation was not unfair. The appellant did give evidence in support of his allegations and objections to the admissibility of this statement. He alleged threats from the chief inspector as well as the sergeant. He also gave evidence that despite the threat, he did refuse to answer the 6th question. The judge's observation was justified. He accepted the chief inspector's and the sergeant's evidence that there had been no threat administered to the appellant. He rejected the appellant's allegation of threats and went on to comment that the appellant was never affected by it.

29. The main thrust of the attack is to be found indeed in the second reason. It was argued that the judge having accepted Mr. Wong's evidence and rejected the chief inspector's evidence relating to the invitation to Mr. Wong to accompany his client, the judge should have found Li a doubtful witness. As such, Li's denial of uttering threats to the appellant would equally be doubtful. It was not the judge's function to speculate and make up explanations for inspector.

30. It is true that the conflict of evidence between Mr. Wong and Li on this point cannot be reconciled. Once Mr. Wong's evidence is accepted the only conclusion is that the inspector's evidence on this point is, at least, unreliable. However, it often occurs that a witness' evidence may be partly true and partly untrue. The same principle applies to the question of reliability of a witness.

31. In the course of the voir dire, the judge had seen and heard all the witnesses. The explanation that he gave for Chief Inspector Li was based on the evidence he heard that Li had, on many occasions, asked solicitors to accompany their clients. The judge's finding was that the inspector might well be confused as an explanation for the discrepancy.That was not an explanation that was adopted by the inspector himself. It might be that it was a misdirection of fact. However, if the judge were wrong in finding such an explanation of the inspector's evidence, it did not mean that he was also wrong in accepting the inspector's other evidence viz: his denial of threats to the appellant. The inspector's evidence in that respect was further strengthened by the appellant's own inconsistent evidence. Hence the observation that if the appellant's allegations were true, "he was never affected or appeared to have been affected by the alleged threats".

32. As to the third reasons, we accept the principle that was laid down in R. v. Watson ⁽¹⁾. The trial judge obviously has a discretion to exclude a statement from the jury after its admission if, in the course of the hearing, it  turns out that the statement was in fact  involuntary. It was also said  in that case that this discretion to exclude should be  exercised in rare and unusual cases.

33. Having regard to our opinion as to the judge's ruling that he accepted the sergeant and the chief inspector's evidence and rejected the appellant's evidence in the voir dire and that there was no further evidence to contradict the sergeant and the chief inspector in the trial relating to the general issue, we are of the opinion that there is no basis for the judge to exclude the statement solely on the basis of the chief inspector affirming his previous error. There was no other evidence to contradict the inspector regarding his denial of threats.

34. The 2nd ground in support of the application is that the judge should not have admitted the cautioned statement solely on the ground of voluntariness. He should have exercised his residual discretion to exclude it upon the ground of unfairness.

35. The reason in support of this particular ground is that the appellant was kept in the police station for nearly 20 hours before his interview. Counsel submits the following points. Prior to the appellant being taken to the adjoining room for interview, the chief inspector said something to the appellant which clearly gave the impression that the appellant was bound to give a statement and to answer questions from the sergeant. That the appellant was not asked at any stage whether he was willing to make a statement. The interview took some 5 hours and 5 minutes without any break. No refreshment of any kind was offered to the appellant. The appellant was deprived of his right not to be questioned repeatedly by the sergeant. The sergeant should not have continued to question the appellant without warning of his being prosecuted after he answered to the 6th question. The entire  process of taking the cautioned statement involved irregularities and impropriety of an oppressive character.

36. In support of his contention, Mr. Martin Lee cites the case of HUI Lam-wing v. The Queen ⁽²⁾, in which this court observed that a caution was not a licence for the right of a police officer thereafter to ask numerous questions. As a general proposition we do not resile from this statement. Every case must be judged on its own merits. We do not resile from the principle laid down in the case of R. v. LAI Kin-ming ⁽³⁾ when this court affirmed the principle that the trial judge had always a residual discretion to exclude a statement which is obtained by unfair or oppressive conduct on the part of the police. Nor are we blind to the fact that the accumulative effect, of a course of conduct, innocuous in any specific incident, might cause oppression or unfairness. Having said this we are of the opinion that there is no substance in the contention in ground 2.

37. The appellant did not present himself. to the police until 10 days after his return from China. He did so after consultation with members of his family. He was accompanied by his solicitor. Obviously he would have had legal advice beforehand. He said that he presented himself to assist police inquiry in connection with the robbery and homicide case. In the next breath he told the police through his solicitor that he was going to say nothing or make no statement. How he was going to assist the police is a wonder.

38. As far as the solicitor is concerned, there was no evidence that he asked the officer who received the appellant, whether the appellant was going to be interviewed straight away or would be released on police bail or taken away from the Waterfront Police Station. The next morning when the solicitor found that the appellant was  in Happy Valley Police Station, he went to repeat his advice to his lay client not to say anything. He took the trouble to speak to Chief Inspector Li on the telephone. He did not inquire how long would the appellant be detained and the normal questions he should have asked as aforesaid. In short, there was not a shred of evidence that any of these steps were taken by the defence.

39. On the other hand. the prosecution evidence disclosed the reason why the appellant had to be kept overnight.

40. Having regard to the circumstances, a detention in Happy Valley Station for some 20 hours was not oppressive. Indeed, against the  background of the defence, it appeared to be a reasonable step to be taken. In the presence of the sergeant and the appellant, Inspector Li made it quite plain that it was the police routine to carry out an inquiry and interview. The sergeant administered the proper caution to the appellant before he asked the appellant questions. Any inquiry  whether the appellant was willing to answer appears to be superfluous. It was a long statement, the lengthy period of 5 hours is not unusual. There was no evidence that the appellant ever requested refreshment or toilet facilities. The sergeant was with the appellant at all times. The appellant was not deprived of his constitutional right because he admitted he answered the first few questions. Then he gave a long answer to the question "How did it occur?". The questions subsequent to the long narrative were questions to clarify doubtful points arising therefrom. That was permissible even if one were to adopt the standard set by the old Judge's Rules in England.

41. Having regard to the circumstances, we cannot say that the entire process of taking the caution statement involved any irregularity of impropriety, any oppressive character or unfairness.

42. The 3rd ground in support of the application alleges that the judge in directing the jury omitted to put to them the possibility that the knives might have been brought along only to instil fear in the minds of the victim and  not to inflict any serious bodily harm.

43. It is further suggested and argued in ground 4 that it has not been proved beyond all reasonable doubt that the knife had been plunged into the deceased's body deliberately by the appellant's accomplice. According to the evidence of Dr. MONG Hoi-keung that the wound could have been caused in a number of ways: "one of a thousand likely explanations" and "depending on the posture of the deceased and also depending on the posture of the assailant".

44. Mr. Lee cited a portion of the judge's summing-up at page 101, in which the judge said:

"You see, it is a matter of inference and therefore it is a matter for you, but what inference do you draw from the fact that two men going to commit a robbery at a goldsmith shop take knives. Are they going to use it to open the safe, to polish the gold, or are they going to use it primarily to overcome any resistance, if any?'' That is a matter for you. You'd ask yourself, why carry knives?"

Indeed the judge did not mention that the bringing of the knife might be to instil fear in the victim and not with any other motive. However, one must read more of the summing-up to show that he was putting the case for the defence very fairly and, indeed, overwhelmingly in favour of the defence against the verdict of murder. On the same page, the judge went on to say:

"Now I have already said to you that the evidence, you may think, falls short of establishing the offence of murder and because I have also said to you that you are not bound by the comments that I make, if it did happen that you considered that the evidence did establish the offence of murder, then before you could find him guilty as a party, you would have to be satisfied that the common intent he shared with the other was an intent in using the knives to inflict really serious bodily injury."

He went on to refer to the appellant's cautioned statement to the effect that he went through the trouble of dialling 999 afterwards in an attempt to alert someone to save the victim. Then he said at page 102:

Finally the. judge said:

Such comments of the judge were unduly favourable to the appellant. We cannot see how it can be said that the judge had caused any prejudice to the appellant by a mere omission of the suggestion that the knives might have been brought to instil fear and for no other purpose.

45. The question whether the Crown had proved beyond reasonable doubt that the knife had been plunged into the deceased's body deliberately by the appellant's accomplice is one for the jury. Dr. Mong, despite his expertise as a doctor, could only offer an opinion. Indeed there was no direct evidence as to how the knife was plunged into the victim's body. In his answer to the 7th question, the accused said at page 139:

"I saw On Chai push that man. After that, On Chai said to me, 'Run away, quick.' Therefore, I ran from the landing to 2nd floor where I saw the man  lying on the floor near the entrance on the second floor. Then On Chai and I ran downstairs and when we reached the staircase leading to the first floor, I heard that man say 'I'll open the door' twice. On Chai asked me to go back but I said to him 'don't'. On Chai said, 'Now it has come to that, let's go back there.' We returned to the second floor and On Chai went to where the man was. Then, that man stood up and took out the key(s) to open the door. He and On Chai went inside the premises first. I was responsible for keeping watch standing at the door."

In answer to the question to clarify matters in that statement, the following questions and answers appear:

From his statement and answers the appellant must have known that On Chai stabbed the victim in the course of pushing. As to the intention on the part of On Chai, the subjective test is to be taken from all the surrounding circumstances of the case. One of the circumstances would be the nature of the wound inflicted on the victim. The medical evidence was that one stab wound entered the front of the body, tilted 60° upwards, penetrating the lower lobe of the left lung and the sac of the heart reaching the rear wall of the chest cavity. With great respect to the doctor's expertise and sense of imagination regarding the possibility of many relative positions, a common sense approach obliges attention to certain facts. The weapon used was pointed and long enough to penetrate 6½ inches into the body. The wound was inflicted in the course of a pushing. It was an upward thrust of the weapon. Even if the victim fell onto the knife point, the assailant would seem to have held firm to the position of the knife so that it could penetrate to the body in such a way. Moreover there were some slight cut wounds on the right wrist and right thumb of the deceased which, according to Dr. Mong, were likely to have resulted from the attempt by the deceased to ward off a knife blow. Experts can give their evidence. It is up to the jury to arrive at a verdict. We cannot substitute our decision for that of the jury.

46. Finally, the last ground is that the murder verdict should be set aside on the ground that it is unsafe and unsatisfactory. The reason in support is that the judge  took the view that the evidence fell short of establishing beyond.reasonable doubt that the offence was one of murder. Secondly, the accomplice, the person who actually inflicted the   wound, was merely convicted of manslaughter. Lastly, that Chief Inspector Li in his evidence gave unfairly to the court information., that had been supplied to him by a woman inspector to the effect that the appellant had surrendered himself to Waterfront Police Station in connection with the robbery and murder case, that two persons had been arrested and convicted and one person was still being sought. This, it is argued, is highly prejudicial to the appellant.

47. Taking the last point first, Mr. Martin Lee cited the evidence of the Chief Inspector at page 63. The question and answer were:

At this point, there was no objection by the defence when the question was asked as to what happened. It was innocuous enough. Counsel for the defence might not have perceived the danger signal. But when the officer gave evidence using the words "she informed me", it was up to defence counsel to object at once. So far from doing that, however, defence counsel adopted such evidence by asking questions herself in cross-examination. These appear in page 69:

The whole episode was brought to the forefront by cross-examination. We do not see how now the applicant can complain now that such prejudicial evidence was led in. In any case we do not think that this evidence, led from the witness by defence counsel herself, can have caused any appreciable prejudice in the minds of the jury.

48. We have already emphasized on the judge's summing-up to the jury in favour of manslaughter. At page 98 - 99 of the transcript, the judge in his direction said as follows:

We read this passage as the judge's very strong 'direction to the jury to bring in the alternative verdict of manslaughter. The jury evidently took a different view. As we have said before, it is not for the judge to usurp the function of the jury.

49. Mr. Martin Lee cites the case of Cross and Channon ⁽⁴⁾ in support of the proposition that if the judge feels that the verdict  should be one of manslaughter or of another offence than the offence indicted, he should have withdrawn the offence indicted from the jury and substituted therefor an amended charge. On closer examination of the case, it appears that the facts are quite different. In that case the appellant was convicted of fraudulent conversion as a trustee. In the course of the trial, the judge found that there was no evidence to support the indictment at all. Instead, there could have been evidence to substantiate a different offence, namely, to do an act with intent to impede the arrest of some other person who committed the fraudulent conversion. The judge raised no question of that in the course of the trial until the summing-up when he said there could have been an alternative conviction of an offence under section 4 of the Criminal Law Act 1967. The jury convicted of fraudulent conversion. The judge made no mention of his definite feeling until counsel for the defence was mitigating on behalf of the accused, Cross, in which he said:

"I take the jury's verdict, and certainly my own view of the matter is that he did not know the conversion was actually going on; he knew of it after it happened."

On appeal, the Court of Appeal said there were four difficulties in the approach of the learned trial judge. One of which was that the judge clearly thought that there was no evidence to support the charge of fraudulent conversion. It went on to say that if the trial judge found that there was evidence to support an alternative charge of doing an act with intent to impede another person guilty of fraudulent conversion by a trustee then such alternative should be included in the indictment before the close of the evidence. Their Lordship then went on to observe that the Criminal Law Act was not passed until 1967 and did not become effective until the 1st January, 1968. That being so even if the trial judge wanted the jury to convict the accused of that offence under section 4, he could not do so because no such offence was created until 1968.

50. We interpret the cited passage in the summing-up by the trial judge in the present case as merely giving a strong indication to the jury that they could if they wished to return a guilty verdict of manslaughter. Once there was evidence to support a verdict of murder it was not for the trial judge to tell the jury what to do. Quite distinct from the situation obtained in Channon and Cross ⁽⁴⁾, the offence of manslaughter had always been open to the jury in the present case. It was well-known to both prosecution and defence that manslaughter could be an alternative verdict to murder. Lord Justice Waller pointed out in the case of Channon and Cross ⁽⁴⁾ that the offence under section 4 of the Criminal Law Act would have been included as a separate count on the indictment. As far as manslaughter is concerned, there is never any necessity to include a separate count of manslaughter on an indictment for murder.

51. We have made our observation as to the medical expert evidence. It was not for the judge to agree or disagree with this evidence. It was for the jury to do so. Having regard to our observation on expert evidence, we are of the opinion that it is quite proper for the trial judge not to withdraw the charge of murder against the appellant, but leave it entirely to the jury.

52. None of the difficulties of approach listed in the case of Channon and Cross ⁽⁴⁾ presented any dilemma to the trial judge in the present case at all.

53. Finally there was the anomaly. In a previous trial the person who did the stabbing was convicted of manslaughter. The appellant who was merely an aider and abettor was convicted of murder. It is contended that this is unjust to the appellant. We are referred to the case of Quick and Paddison ⁽⁵⁾. At page 736, Lord Justice Lawton said:

"If Quick's conviction is quashed, what happens to Paddison's, having regard to the fact that he was said to have aided and abetted Quick? The quashing of Quick's conviction amounts in law to an acquittal. Can Paddison be deemed to have aided and abetted someone who has been adjudged 'Not Guilty'? As a general proposition of law, the answer to this question is a qualified 'yes'. The facts of each case, however, have to be considered and in particular what is alleged to have been done by way of aiding and abetting. In this case the allegation against Paddison was encouragement by conduct. The case against him was that he knew what Quick was going to do and encouraged him to do it by getting the other patients out of the way. If Quick acted without conscious volition, it is most unlikely that Paddison would have known what he (Quick) intended to do. The quashing of Quick's conviction in our judgment introduces an element of unreality into the verdict too must be quashed as being unsatisfactory."

In the present case there was no co-accused who pleaded that of automatism. We do not know what defence was run by HO Kin-on. There is no way to find out the reason for the verdict returned by another jury who sat in the trial of HO Kin-on. Suffice it to say that the judge had put every possibility to the jury in this particular trial. They came to the conclusion, having regard to the evidence as a whole, that the appellant was guilty of murder. That verdict is clearly sustainable on the ground  that the jury were satisfied that this accused knew that his companion was armed  and  that the use  of the knife  might result in grave bodily injury.

54. It must be mentioned in all fairness, that learned counsel for the Crown in this appeal readily conceded that it was an anomaly that the principal offender should be convicted of manslaughter and this aider and abettor convicted of murder. He indicated that he would not say anything against our substituting a verdict of manslaughter. With due respect to this compassionate view, we can see no reason to interfere with the jury's verdict. Had that been the unqualified feeling of the Attorney-General, he should not have indicted the appellant for murder. At the time of the trial of this appellant, the verdict against HO Kin-on was well known to him. He nonetheless chose to proceed upon the murder charge. The verdict which was returned was no doubt the verdict he expected.

55. It is not the duty of a judge to usurp the function of the jury, still less is it the duty of the Court of Appeal. Having regard to the circumstances, we will adopt a qualified 'yes' as put by Lawton L.J. If an executive act is felt to have gone amiss an executive act can provide the remedy. It is always open to the governor-in-council to exercise his prerogative of mercy to commute the sentence to a suitable term as an act of humanity. As far as the law is concerned, there is nothing that we can do.

56. For these reasons the appeal is dismissed.