HKSAR v. CHAN WAI CHAU AND ANOTHER

HCMA951/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 951 OF 1999

(On Appeal from NKC 3399 of 1998)

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J U D G M E N T

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1. The 1st and 2nd Appellants each faced the same two charges, namely common assault and blackmail and the 1st Appellant alone faced a third charge of claiming to be a member of a triad society. After a trial before Ms Rebecca LI, a magistrate, they were found guilty and were sentenced. In respect of charge (1), common assault, each Appellant was sentenced to 2 weeks' imprisonment; in respect of charge (2), each Appellant was sentenced to 18 months' imprisonment; and in respect of charge (3), the 1st Appellant was sentenced to 6 months' imprisonment. All the prison terms were ordered to run concurrently. Each Appellant was also ordered to pay $7,500 costs. The Appellants now appeal against conviction and sentence.

2. The prosecution's case as presented to the Magistrate was that on 5 January 1998, inside the conference room in the offices of a company known as Stylic Fashion Company Ltd ("Stylic"), a company owned by DW3 Mr Dea, in which the complainant Mr LI Yu-leung ("LI"), ie, PW2 in the trial, was the Shipping Manager, the 1st and 2nd Appellants assaulted LI, the subject of charge (1); they uttered menaces to LI making an unwarranted demand, the subject of charge (2); and the 1st Appellant in LI's presence also claimed to be a member of Sun Yee On, the subject of charge (3).

3. Mr Kwok, for the Appellants, raised three grounds of appeal. The first ground is a complaint about the incompetence of counsel who acted for the Appellants at the trial. The second ground is the unfair intervention of the Magistrate at the trial. The third ground is that the Magistrate wrongly evaluated the evidence of the victim, LI.

4. The first ground of appeal is a complaint about the conduct of the trial by defence counsel. I shall refer to him as "defence counsel" to distinguish him from the Appellants' counsel who represented them in this appeal. The complaint was that defence counsel failed to follow the instructions given him by the two Appellants on two matters :

(1) the purposes of the meeting on 6 January 1998 between the Appellants, DW3 Mr Dea and Mr Au Ying-chun (the accountant of Stylic) of the one part and the complainant of the other part; and

(2) that the 2nd Appellant knew LI.

5. For the purpose of this ground, fresh evidence contained in an affirmation of the Appellants was, without objection from the Respondent, admitted at the hearing of this appeal. Defence counsel had been given an opportunity by this Court to answer the allegations of incompetence raised against him in the conduct of the defence before the Magistrate, and was allowed to address me in the course of submission of counsel for the Appellants.

6. According to the instructions received by defence counsel, Mr Dea, the owner of Stylic, had invested about $350,000 for LI to establish and then run a garment factory known as Protectly. Protectly was suffering from losses and Mr Dea suspected that LI had not properly conducted Protectly's business and had with one Au Shing-foon (ie, PW3, who should be distinguished from Mr Au Ying-chun referred to above) used Protectly to do 'under table' business, not accounting to Protectly or Mr Dea the profits made by the 'under table' business. As Mr Dea got to know that LI had returned to Stylic's offices (at the address mentioned in the charges) on 5 January 1998, he went into those offices in order to confront LI and to ask LI to account to him regarding Protectly's affairs. Mr Dea was also thinking of closing Protectly and he asked the 2nd Appellant to go to Stylic to meet him so that the 2nd Appellant could be arranged to inspect the sewing machines of Protectly to see if the 2nd Appellant was interested to buy them.

7. The following facts were not disputed. On 5 January 1998, inside Stylic's conference room, Mr Dea confronted LI and asked him to account for Protectly's affairs. Later, the Appellants arrived. Sometime later, PW3 arrived at the request of Mr Dea. Mr Dea in a separate room confronted PW3 with evidence of the 'under table' business deals that PW3 and LI had done through the use of Protectly, resulting in PW3 signing an acknowledgment that he would account for the profits from such deals. LI had remained in the offices for a continuous period of 8 to 9 hours, most of which was spent by him inside the conference room. The 1st and 2nd Appellants also stayed in the offices during that period, though not always inside the conference room where LI and sometimes Mr Dea were.

8. According to the Appellants, the 2nd Appellant brought along the 1st Appellant to the offices because the 1st Appellant had an interest to buy the sewing machines. The purpose of their attending the offices was to inspect such machines and see if they would like to buy them. Their remaining there for such a long time was to await a telephone call from the landlord of Protectly's factory in order to get the keys for entering Protectly's premises to see the sewing machines situated there. However, the landlord did not call and their purpose was not fulfilled. According to Mr Dea, when LI was leaving the offices, he uttered to those inside the conference room, including Mr Dea and the Appellants, that he was going to hand back the Protectly factory to Mr Dea the following day. No fixed time for such was mentioned. On 6 January 1998, the 2nd Appellant received a telephone call from Mr Dea telling him that there was to be a meeting at the Protectly factory with LI at 2:30 that afternoon, and the 2nd Appellant could come along to see the sewing machines. The 2nd Appellant also asked the 1st Appellant to attend for inspecting the sewing machines. When Mr Dea, Mr Au Ying-chun (Stylic's accountant) and the Appellants met with LI at the factory building, they were immediately arrested by the police with whom LI had already made arrangements.

9. The ground of appeal may be better appreciated in the light of the Magistrate's evaluation of the evidence. She said :

"15. It was common ground that both Appellants were inside the conference room with PW2 (ie, LI) most of the time between 11 am and 8 pm. The question was what happened inside the room.

16. PW2 gave a very detailed account of what happened. ... He impressed me as an honest and straightforward kind of person and I believed him.

17. I found it inherently improbable that the 1st Appellant, a total stranger to both DW3 and PW2; and the 2nd Appellant, allegedly a broker of DW3, should remain inside the conference room for 8 to 9 hours in the midst of a heated argument which did not concern them at all, just because they wanted to wait for the landlord of the Factory to return call so that they could obtain the key to the Factory.

18. DW3 and the Appellants denied asking PW2 to sign any document. Given the background of this case and the fact that PW3 was made to sign some documents in the very same afternoon, I did not believe that DW3 and the Appellants would spare PW2.

19. I rejected the evidence of both Appellants and DW3. ...

20. I found that the events took place inside the conference room on 5.1.98 as told by PW2.

21. As for the arrest on 6.1.98, PW2's evidence that he was told to bring a cheque of $50,000- to meet DW3 and the others, was never challenged. Both Appellants in their evidence, did not suggest otherwise. It was only when DW3 gave evidence then the court first heard that DW3 and the others were there because PW2 suggested to visit the Factory on that day. This was never put to PW2 in cross-examination. I rejected this evidence of DW3 as recent fabrication. I found that both Appellants and the others were there to enforce their unwarranted demand of $50,000- from PW2." (Emphasis added)

10. This important reference in paragraph 21 of the Findings that "PW2's evidence that he was told to bring a cheque of $50,000 to meet DW3 and the others" was based on the following evidence of LI that came out in examination-in-chief :

A Then at around - sorry, at 10 am the following day, I received a phone call from AU Ying-chun to my home.

Q Yes.

A He asked me to take a cheque of $50,000 payable to Stylic Fashion Company Ltd and bring along with me the dishonoured cheque from Tai Ying and asked me to meet him at the ground floor of the Protectly factory in Kwun Tong at 2.30 pm ...

Q On which day?

A ... to wait for him.

Q On which day?

A 6th.

(Emphasis added)

11. From the whole of the transcript of the evidence before the Magistrate, it is clear that when PW2 LI gave evidence, at no time did defence counsel challenge the aforesaid evidence or put the purposes of the meeting on 6 January 1998 according to the instructions of the Appellants to him, which were that LI said on 5 January 1998 that he was going to hand back the Protectly factory to DW3 the following day and that the Appellants went there to look at sewing machines. Similarly, when both of the Appellants gave evidence, defence counsel did not lead them on such instructed purposes. Mr Kwok argued that it was blatant from paragraph 21 of the Magistrate's Statement of Findings that the Magistrate had attached great weight to the purposes of the 6 January meeting. She was further impressed by the fact that the evidence of LI that "he was told to bring a cheque of $50,000 to meet DW3 and the others" went unchallenged, and there was no evidence from either Appellant to suggest a different purpose. She rejected DW3's reference to LI's suggestion to visit Protectly on 6 January 1998 because what DW3 told her had not been put to LI during LI's cross-examination by defence counsel. Based on all these, the Magistrate found that the Appellants and the others were at the factory on 6 January to enforce their unwarranted demand of $50,000 from LI.

12. Defence counsel had compiled a file which set out his instructions from the Appellants that he took from them during a conference before trial with them. He accepted that a written statement of Mr Dea (DW3) as having been received by him before he appeared for the Appellants at the trial. Defence counsel was of the view that it was difficult to fight a case of "word crime", because apart from the assault charge, the blackmail and claiming of being a triad society member were crimes of words of mouth. It was always difficult to fight such cases because if the court believed the complainant's evidence that the defendant uttered words of menace and demand and his being a member of a name of a triad society, and disbelieved the defendant, the defendant would have little chance of creating a reasonable doubt in the prosecution case. Defence counsel felt that it would be difficult for the court to accept the story that the purpose of the Appellant's staying in the Stylic offices for over 8 hours on 5 January 1998 was merely to wait for the possibility of being able to see some sewing machines which were not in the offices but somewhere else in Kwun Tong.

13. Defence counsel carefully thought out a strategy to attack the evidence of the complainant LI regarding the unreliable nature of identification of the culprits. This was to play on the fact that LI said that Mr Dea (DW3) came into the Stylic offices on 5 January 1998 with 6 to 7 other people, but that LI alleged that in the conference room 2 persons, instead of all the 6 to 7, assaulted him and blackmailed him. Even counting Mr Au Ying-chun and the Appellants as amongst those 6 people, there would still be 3 persons against whom LI did not make any allegation. When Mr Dea, Mr Au Ying-chun and the Appellants were arrested on 6 January 1998, they were arrested together and no distinction seemed to have been made by LI between the Appellants and the other 3 unblamed persons who were in the Stylic offices the day before. There was no confrontation as such, and there might be a doubt as to whether the Appellants were the 2 persons against whom the allegations to prove the charges were made by LI. Defence counsel therefore objected to LI making a dock identification. However, the Magistrate ruled against him and allowed it, and as a result, the two Appellants were identified as the persons who perpetrated the offences as charged.

14. The consequence of defence counsel taking and pursuing the strategy on identification was that he did not ask LI if he knew the 2nd Appellant. In fact, the instructions taken by defence counsel in conference with the two Appellants only show that the 2nd Appellant had met/seen LI before 5 January 1998, although the 2nd Appellant was a freelance garment broker working for Mr Dea. There were no instructions that LI knew the 2nd Appellant or the 1st Appellant, wherefore, defence counsel could properly run the strategy he planned on identification. It was only when the 2nd Appellant was cross-examined that he said LI knew him and addressed him as Mr Chan. This was not in the instructions given to defence counsel. It is therefore clear that defence counsel's not putting to LI that he knew the 2nd Appellant cannot reasonably be described as non-compliance with instructions. It was rather that the 2nd Appellant did not specifically instruct defence counsel about LI's acquaintance with him. I conclude that defence counsel cannot be blamed on this score. There was no dereliction of duty on his part.

15. Defence counsel explained to me why he did not put the purposes of the 6 January meeting to LI in cross-examination, and did not lead evidence from the two Appellants as to the purposes. Defence counsel raised mainly three points. First, the key issue was what was uttered and done by the Appellants on 5 January 1998; what happened on 6 January 1998 was not important though it might be relevant. Secondly, he deliberately refrained from touching upon the purposes with LI for fear of jeopardising the identification point that he was focusing on making to the court. Thirdly, there were several purposes for the 6 January 1998 meeting according to the instructions he had received. (1) According to the handwritten statement of Mr Dea, DW3, at conclusion of the meeting on 5 January 1998 in the conference room, LI had remained silent for a long time, and he suddenly said that he would hand back the Protectly factory to Mr Dea the next day, without specifying any time; LI then left. (2) According to the oral instructions given by the Appellants to him in conference which were reduced into writing, Mr Dea telephoned the 2nd Appellant in the earlier part of 6 January 1998, telling him that he had made an appointment with LI to meet at the Protectly factory at 2:30 pm and that the 2nd Appellant should be there if he was interested in the sewing machines. Moreover, Mr Dea told the 2nd Appellant that he feared that LI might cause trouble and he would like the 2nd Appellant and his men to be present to keep LI at bay.

16. Defence counsel frankly admitted to me that he deliberately refrained from touching upon the purposes of the 6 January 1998 meeting as he found the matter of little significance, especially when compared with preserving and enhancing the chances of success of his identification point. Whether it was wise to desist from touching upon the purposes of the meeting of 6 January 1998, or whether leading evidence on them would jeopardise the identification point might be subject to differing views, I am of the opinion, however, that defence counsel's decision cannot be castigated as guilty of gross or flagrant incompetence to form a basis for an appellate court's interference with a verdict of a court of trial. It would be unfair to defence counsel to allow the use of the hindsight gained from paragraph 21 of the Magistrate's finding as the basis for realising the significance of the purposes of the 6 January 1998 meeting. Doubtless it was the purposes of the Appellant, not those of Mr Dea, in attending the meeting that should count. As the express purpose of their visit to the Stylic offices on 5 January 1998 was to inspect sewing machines, and that purpose was not fulfilled, it should be implicit that their attendance at the meeting the following day must be for the same purpose. If their express purpose for 5 January was not believed, it would be too imaginative for defence counsel to expect that whatever innocent purpose his clients might testify for the 6 January meeting would be believed. Looking at the matter from another angle, if the Appellants had given evidence as to the purpose of their attending on 6 January 1998, it would not have appeared to defence counsel that such evidence would be at all helpful in the Magistrate's assessing their credibility regarding their purpose for the 5 January 1998 visit to the Stylic offices. Moreover, defence counsel could not well have put the Appellants' purpose for the 6 January 1998 meeting to LI because LI would not have known, as the purpose was, according to the instructions received by defence counsel, only mentioned between Mr Dea and the 2nd Appellant. Moreover, had defence counsel put to LI the instructions in Mr Dea's statement that LI said at the conclusion of the 5 January meeting that he would hand back the Protectly factory to Mr Dea the next day, that might well have contradicted the 2nd Appellant's testimony which he volunteered when being asked "How did the day end?". His answer was that "At the end, they reached no compromise."

17. In all the circumstances of this case, I am not persuaded that it can be suggested in any way that defence counsel was flagrantly incompetent in the handling of the defence, which according to a number of authorities such as R v Birks [1990] 48 A Crim R 385, adopted by R v MO Lee-kuen [1993] 1 HKCLR 78, CA, an appellant needs to establish before an appellate court would set aside a conviction. Nor do I find this ground justifies a conclusion that the Appellants did not have a fair trial in the court below: see R v LI Wan-keung, MA No 580 of 1996 (unreported).

18. The second ground of appeal is that the Appellants did not have a fair trial in view of the interventions by the Magistrate in questioning the 2nd Appellant and Mr Dea.

19. Jones v National Coal Board [1957] 2 All E R 155 is an authority that deals with the judge's role in a civil action, where at p 159G, Denning LJ, as he then was, said :

"The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well."

20. It appears that Lord Denning's comments apply all the same to the judge as the law-decider and fact-finder in criminal proceedings. In R v LAU Hing On [1987] 1 HKC 89, the Court of Appeal referred to the judgment in R v Tam Chi Ping & Ors Crim App No 119 of 1985 (unreported) which stated that there was nothing improper in interventions as such by a judge, even if they were frequent and lengthy, provided that the judge followed the principles set out in the above cited passage from Jones v National Coal Board. The Court went on to refer to the judgment in R v Hamilton [1969] Crim LR 486, which reads :

"Nevertheless, we administer an adversarial and not an inquisitorial system. Until the law is changed, as we hope it will not be, we must seek to preserve it. One of its most important rules is that the judge must continue to preserve an appearance of neutrality throughout a trial. Whatever he may think, he must not seek to impose his views on the jury, during the course of a trial, by interventions of a volume or nature which put pressure on a jury to find as the judge has shown he wishes them to do.

It would, of course, be na?ve to expect that every convicted defendant would acknowledge that his trial had been fair. But the judge must strive to conduct himself during a trial that a neutral observer would be left in no doubt that the trial was conducted fairly before a judge who stood above the conflict and retained his air of impartiality throughout."

The Court then said :

"Those remarks must apply even more strongly to trial by a single judge, for should the judge assume the robe of an advocate, as Lord Denning put it, not only is the appearance of neutrality lost, but the judge being a judge of fact as well as law, there is a very real possibility that his judgment will be influenced by his conduct and the defendant genuinely deprived of a fair and impartial trial."

21. In HKSAR v TAI Yue Bong & Ors, Crim App No 525 of 1997 (25 February 1998, unreported), Stuart-Moore, JA (as he then was), delivering the judgment of the Court of Appeal, referred to the judgment in Criminal Appeal No 35 of 1997 which took into consideration the principles stated by Purchas, LJ in R v Matthews (1984) 78 Cr App R 23, at 32 as follows :

"... the following propositions appear to emerge :

(1) Whilst a large number of interruptions must put this court on notice of the possibility of a denial of justice, mere statistics are not themselves decisive; (2) The critical aspect of the investigation is the quality of the interventions as they relate to the attitude of the judge as might be observed by the jury and the effect that the interventions have either upon the orderly, proper and lucid deployment of the case for the defendant by his advocate or upon the efficacy of the attack to be made on the defendant's behalf upon vital prosecution witnesses by cross-examination administered by his advocate on his behalf; (3) In analysing the overall effect of the interventions, quantity and quality cannot be considered in isolation, but will react the one upon the other; but the question which is posed ultimately for this court is 'Might the case for the defendant as presented to the jury over the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing-up of the judge, be such that the jury's verdict might be unsafe? In the presence of conditions in which this Court has been alerted in the manner to which we have referred, it appears to us that if there is a possibility of a denial of justice then this Court ought to intervene."

Stuart-Moore, JA then said :

"... It appears to us that the trial judge went on a fact-finding mission of her own and was not prepared to listen to the evidence as it emerged from the answers which were being given to defence counsel. Mr Luk (defence counsel) was properly carrying out his duty in laying before the Court the material he believed should be in evidence.

Having said that, while not for one moment wishing to give encouragement to interruptions on this scale, many of the questions asked and interruptions made by the judge were relevant to issues that immediately needed to be decided. These were unobjectionable and were sensibly made during the course of examination-in-chief to deal with points as they arose. Examples of this kind are where leading questions were asked or where questions were asked based upon a wrong foundation of fact."

22. Mr Kwok complained that the Magistrate asked a number of questions of the 2nd Appellant at the close of his re-examination by defence counsel. The Magistrate's questions, about 25 altogether, cover the best part of three pages of the transcript. She inquired of the 2nd Appellant how often he had seen LI, whether he could recognize LI straightaway on 5 January 1998, how everyone was positioned inside the conference room vis-à-vis LI, whether the 2nd Appellant saw Au Shing-foon (PW3) in the conference room and why PW3 came into the conference room. Mr Kwok submitted that the Magistrate was cross-examining the 2nd Appellant, not to clarify certain aspects of his evidence. She was also said to have asked the questions to justify her ruling to allow dock identification of the Appellants, asking a leading question, seeking to confirm PW3's evidence and contradicting the 2nd Appellant.

23. At the end of the re-examination of Mr Dea (DW3) by defence counsel, the Magistrate asked about 45 questions, covering four pages of the transcript, as to why he explained to the persons present in the conference room about his dispute with LI regarding Protectly, whether DW3 knew what Au Ying-chun told LI over the telephone when setting up the meeting with LI on 6 January 1998, whether DW3 saw PW3 on 5 January 1998 and what DW3 got out of PW3 that day, whether DW3 told LI what PW3 had done, etc. Based on these questions, Mr Kwok submitted that the Magistrate not only went on a fact-finding mission of her own, she also cross-examined DW3 in such a way as to show her disbelief of his answers. Mr Kwok argued that the Magistrate's questioning of the 2nd Appellant and DW3 demonstrated hostility of the Magistrate towards the defence case.

24. After examining the evidence in the transcript, I have come to the view that most criticisms of the Magistrate's conduct made by counsel are not justified. The Magistrate was at times seeking clarification of certain evidence and trying to get a better picture of what was going on in the conference room on 5 January 1998. At other times, she gave opportunities to the 2nd Appellant and DW3 to explain matters on which she apparently had some doubt. I cannot discern that she was hostile towards the defence.

25. Nevertheless, the Magistrate did go on a fact-finding mission of her own by asking both the 2nd Appellant and DW3 whether each of them had seen PW3 on 5 January 1998. She further asked them what PW3 did that day. It was apparently based on the answers so obtained from the 2nd Appellant and DW3 that the Magistrate made the finding in paragraph 18 of her Statement of Findings, cited above, which was that she did not believe the evidence of the Appellants and DW3 that neither of them had asked LI to sign any document on that day. This may be seen as the Magistrate seeking evidence from the Appellants and DW3 and then using the same to discredit them. The disbelief of the Appellants and DW3 in this aspect played an important role in the Magistrate's rejection of their evidence as a whole, and may doubtless give ground for the Appellants' complaint that they did not have a fair trial. However, I would not have agreed to intervene if this is the only matter of concern. The reason is that while the answers to the Magistrate's questions most probably led to her rejecting the evidence of the Appellants and DW3, one cannot jump to the conclusion that she asked the questions for achieving that consequence.

26. In paragraph 21 of her Statement of Findings that I cited earlier, the Magistrate said that on 6 January 1998, LI was told to bring a cheque for $50,000 to meet DW3 and the others, and she found that both the Appellants and the others were there to enforce their unwarranted demand of $50,000 from LI. It is to be noted that in LI's evidence that I also cited above, LI merely said that Au Ying-chun called him at 10 am on that day to ask "me to take a cheque of $50,000 payable to Stylic Fashion Company Ltd ... and asked me to meet him at the ground floor of the Protectly factory in Kwun Tong at 2.30 pm." There was no reference in LI's evidence to DW3 and especially to "the others" shown in the Magistrate's said finding. LI's above quoted evidence showed the reason why he was told to go to the Protectly factory in the afternoon of 6 January 1998, and is therefore admissible as his reason for going there. However, as Au Ying-chun was not called as a witness at the trial, the contents of what he told LI were hearsay and could not be legitimately accepted as true. It would be difficult for the defence to challenge whether Au Ying-chun had made those utterances to LI. Moreover, to be fair to the Appellants, it would not be reasonable to expect them to have anticipated that the utterances would be, and as it turned out were, accepted by the Magistrate as evidence of what was actually said to LI. Although Au Ying-chun was DW3's accountant and might reasonably be considered as DW3's agent, there was no express finding made by the Magistrate that Au Ying-chun was acting for or on behalf of the Appellants in talking to LI over the telephone that morning, nor was there any finding that Au was an accomplice to the blackmail charge that the Appellants faced, or a party to a joint enterprise of the blackmail. Nor did she make any similar finding in respect of DW3. Although she made a finding that she accepted LI's evidence that at the meeting of 5 January 1998, LI wrote out an IOU for $50,000 in favour of Stylic, upon closely examining paragraph 21, I am of the view that she must have placed great reliance on the above hearsay in coming to the conclusion that the Appellants attended the 6 January 1998 meeting to enforce the unwarranted demand, because she used descriptions such as the evidence "was never challenged" and the Appellants' evidence "did not suggest otherwise". Had the hearsay been properly excluded from her consideration, there would at least be some doubt whether her assessment of the credibility of the Appellants and DW3 as well as of LI might be the same. It is this together with the concern I expressed above that the Magistrate sought evidence from the 2nd Appellant and DW3 and used such evidence to discredit them that I am compelled to feel that the convictions in respect of the blackmail charge are unsafe and unsatisfactory. The convictions of blackmail therefore must be quashed.

27. The other two charges, one for common assault against both of the Appellants and the other for claiming to be a member of a triad society against the 1st Appellant, were allegedly committed in the conference room on 5 January 1998 where the Appellants were allegedly perpetrating the blackmail. No independent medical evidence was presented at the trial that LI suffered any injury as a result of the alleged common assaults. I am of the view that the convictions of these comparatively minor charges are also tainted with my above concerns. In the result, these convictions have also to be quashed. All the sentences are set aside.

28. In view of my above rulings, it is unnecessary for me to deal with the third ground of appeal. I hope counsel will not find this unsatisfactory.

29. After hearing submissions from counsel, I come to the conclusion that, on balance, it would be unfair to the Appellants to order a retrial. The Appellants are therefore discharged.

30. Lastly, I wish to thank counsel for their interesting and helpful arguments.