THE QUEEN v. LIU KING FAI

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JUDGMENT

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Sir Derek Cons, Ag. C.J.:

1. We are unanimous that this application should be dismissed. I will give my own reasons and my Lords will add anything of their own or disagree as they think fit.

2. On the 27th of February last year Liu King Fai ("the 2nd defendant" as he was in the court below) was convicted by Barnes, J. on the unanimous decision of a jury, of a murder committed on 12th May 1988.

3. The victim was a heroin seller. He was found at about 2 o'clock that morning in a pool of blood in the playground near the foot of some stairs in the Lower Wong Tai Sin Estate. His legs and wrists had been slashed with a knife and there were other cuts upon him. There was no eye witness and he died at 6:25 that morning without re-gaining consciousness.

4. The defendant's evidence in the trial below, which was mainly extracted by way of cross-examination and was in general consistent with statements that he had made to the police upon his arrest some eight months after the incident, was that at the instigation of a man, he called him his "Big Brother", and with the help of two friends, he waited for the victim to return to the estate with the intention that they would then assault the victim, - in the 2nd defendant's own words, "teach him a lesson", - following a dispute which Big Brother had told him arose from the drug trade.

5. When the victim arrived that early morning the 2nd defendant and his two friends hurried over to him, but seeing them coming the victim produced a knife. The 2nd defendant therefore ran away, as did his two friends. But the victim pursued him, seeking to chop him, up a staircase of one of the blocks of the estate and along a corridor. Fearing that the corridor would lead to a dead end the 2nd defendant waited to ambush the victim, which he did successfully, wresting from the victim the knife that he was carrying. The 2nd defendant then ran back down the stairs up which he had just come, but the victim still pursued him, even hanging on to his clothing. To free himself the 2nd defendant struck at the legs of the victim, one of the blows striking the victim's wrist as the victim tried to ward off the knife.

6. The 2nd defendant was indicted with three other men. The 1st defendant, like the 2nd defendant, had also made statements to the police and it was known before the trial that those statements would be put in evidence. The statements of the 1st defendant were certainly not favourable to the 2nd defendant. They contradicted him in several details. But most importantly they showed that the 2nd defendant was in possession of a knife before the incident. That obviously would not lie happily with his proposed defence of self-defence or provocation.

7. Before the trial started counsel for the 2nd defendant applied for a separate trial. This was refused by Barnes, J. Counsel then applied that the statement of the 1st defendant should be "edited" so that all references to the 2nd defendant would be removed. This also was refused by Barnes, J. on the ground that it would be unfair to the 1st defendant's case, and being satisfied as well that he could give appropriate directions to the jury.

8. In this application for leave to appeal against the conviction the first two grounds contend that the judge's  two refusals were wrong. The third ground is that in any event his direction to the jury was, in the circumstances, insufficient. We have been referred to the decision of R. v. Grondkowski [1946] KB 369 which makes it clear that a decision to order or refuse separate trials is a matter for the discretion of the trial judge alone, and provided that the discretion has been judicially exercised, the Court of Appeal will not interfere unless a miscarriage of justice has resulted. We have been referred to no authority dealing with the editing of statements, but in my view the same principles must apply.

9. In the present instance it would be difficult to suggest that the judge did not exercise his discretion judicially. As far as severance was concerned he listened to the arguments of counsel for the 2nd defendant. As far as the editing was concerned he listened to the counsel for all parties. The substance of the argument before us, as it was before him, is that the prejudice engendered against the 2nd defendant by the introduction of the lst defendant's statement was so serious that, however clear the direction of the judge, the prejudice could not be removed from the mind of the jury. For my part I cannot agree. It all depends upon the directions that were in fact given. The judge, at the request of counsel for the 2nd defendant, gave his direction to the jury just before the statement was introduced. At lunchtime on the same morning he reminded them of his direction and made a further, if short, reference somewhat later in the case. Finally he again drew attention to the question at the very beginning of his summing-up. It is suggested that his comments were too general, that there should have been an express direction to the jury to exclude from their mind what was said in the 1st defendant's statement about the 2nd defendant. As to that, it seems to me that the judge may well have had in mind the danger of emphasizing to the jury the very facts which he wished them to ignore, as he had with regard to the evidence of the defendants' previous convictions. In addition itwas said that there should have been an express direction to ignore, in relation to the 2nd defendant, the jury's conclusion of guilt (if such it should be) of the 1st defendant. But I see no reason to think, having regard to the very clear direction of the judge that the jury should keep their consideration of the case of each defendant separate, that there was any likelihood that they would have done otherwise. In my view the judge's direction as regards the 1st defendant's statement was sufficient. Moreover there is no indication that the jury relied upon it in order to convict the 2nd defendant, indeed there was ample evidence,  apart from it, to support their conclusion. I see no miscarriage of justice.

10. The fourth ground of appeal, as it appears in the Perfected Grounds, is, with respect, not all that easy to understand. But counsel accepts that the substance of it is that the judge should have specifically directed the jury,when dealing with provocation, to the effect that the viciousness of the wounds inflicted might in itself indicate a loss of control. I accept that the judge could have said something to that effect, and there could have been no complaint had he done so. But at p. 17 of his summing-up he set out in detail the wounds inflicted, and on the following page incorporated them into his remarks on loss of control by reference to "the fatal blows". Choice of words is entirely a matter for the trial judge. For my part I cannot see that any fault can be laid against him for not using the exact words that counsel now suggests.

11. The fifth ground of appeal alleges that the judge misdirected the jury by saying that the two friends with whom he first approached the victim had "retreated".  It is that particular word which is criticised. It came at the end of a part of the summing-up in which the judge commented adversely on the 2nd defendant's suggestion that he had run away when the victim produced the knife, when in fact his evidence was that he had run forward and passed the victim, albeit he said that he had been very close to the victim at the start. I think it appropriate to set out more fully what was said.  I take it from p. 15:

"Does his evidence that he continued to advance past the deceased through that narrow space appear to you to be consistent with the action of one trying to avoid an attack or is it consistent only with an intention on his part to continue his aggression? A cornered man may very well have no other choice than to advance upon his attack in order to escape. But, on his own evidence, the 2nd defendant was not at that stage a cornered man any more than were the two companions he said he had with him. If they were able td retreat, why couldn't he?"

It is suggested that there was no evidence to support the statement that the other two did in fact retreat.

12. The only evidence on this question comes from the 2nd defendant himself. In the video re-construction which he made later for the benefit of the police, and subsequently of the jury, he said he did not know where they had run.  In his earlier statements he said at one stage:

"Therefore, that person took out a knife from beside where he stood and chopped towards us. All of us dodged."

and at another, when asked if there was any exchange of words,

"No. In fact that person took out the knife without giving us any chance to talk."

Asked what happened next he said:

"Then Ah Sing and An Piu dispersed in different directions whilst I ran up the side staircase of Block 17."

There was certainly no evidence that the other two rah with him, i.e. past the victim, and the 2nd defendant indeed never gave any real explanation for adopting what must have seemed to the jury a most curious route of escape. In my view, in the circumstances the judge's comment was both understandable and acceptable.

13. The sixth ground is merely a suggestion that in view of these circumstances the conviction was unsafe and unsatisfactory. In my mind it was not.

Kempster, J.A.:

14. I agree with all that has been said by my Lord. There is nothing I can usefully add.

Power, J.A.:

15. I also agree and have nothing to add.