THE QUEEN v. SZETO KWOK HEI AND ANOTHER

Criminal law - homicide during robbery - joint enterprise - mental element of secondary party - adequady of direction do jury

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the Court) :

1. The applicants, Szeto Kwok Hei ("D1") and Ho Kong Sang ("D2") were jointly indicted with robbery (Count 1) and murder (Count 2). They pleaded guilty to the robbery count and, on 15th May 1990, were both convicted of murder after a trial before Sears, J. and a jury. They seek leave to appeal against their convictions of murder.

2. It was not in dispute that Wong Chor Wah, a 28 year old man, was killed in his home, a room in Block 8, Lower Ngau Tau Kok Estate, Kowloon, around midday of 24th May 1989 in the course of a robbery admitted by the two applicants. It was always their case that a third man was involved in the robbery (they called him Fei Hong or Ah Hong) and that it was he who fatally stabbed the deceased with a knife.

3. The deceased was found by his brother lying on his stomach on his bed, shortly before midnight on 24th May. He was covered by a blanket. His hands and feet were tied by adhesive tape. When his body was turned over his brother saw blood on his chest and bruises around his neck.

4. On post-mortem examination, the pathologist saw two ligature marks on the neck 1.5 cms. apart. There were two stab wounds on the chest - (a) on the centre of the chest, 3 cms. long and (b) on the right of the chest, also 3 cms. long. There was a superficial cut wound on the left thumb.

Internally there was a fracture of the tip of the left greater horn of the hyoid bone, with infiltration of blood into the surrounding soft tissues. In the pathologist's view, since the deceased was a young man, "a significant and considerable" amount of force would have been required to fracture the hyoid bone. In his opinion, given enough time, the sort of force applied to the neck would eventually have been fatal.

5. Stab wound (a) was about l4 cms. deep and penetrated into the upper part of the heart sac and from there into the right lung. Stab wound (b) had penetrated through the middle lobe and the upper half of the lower lobe of the right lung, to a total depth of about 16.5 cms. The right lung had collapsed.

6. The cause of death was the stab wounds of the chest with the injuries to the aorta and the right lung.

7. D2 had known the deceased and his family for past 9 years or so and had borrowed money from him on several occasions. The deceased's wife held an I.O.U. from D2 acknowledging that he owed the deceased $75,000.

8. D1 was arrested on 4th June 1989. He made a statement to the police which was admitted in evidence without objection. In it, he wrote:

"I am willing to disclose the whole incident and hope that a chance be given to me. At that time, I just grabbed his neck with a rope. At that time, I just wanted to rob him of money, but he resisted. Seeing this, Ah Hong stabbed his chest with a knife and Ah Sang tied him on the bed with an adhesive tape. Ah Sang then cut off the telephone wire. We then left Ngau Tau Kok. Before we left, Ah Sang took out $100,000 from a bag.  Ah Hong and I took a taxi to a park at Ma On Shan for sharing the loot. I got $300,000. Several days later, Ah Sang called me telling me to deposit $30,000 to an account, account holder surnamed CHEUNG, of the Standard Chartered Bank."

 

9. In answers to questions, D1 added, inter alia, that he had grabbed the deceased's neck from behind by using a nylon rope which he had brought with him and that the knife used by Ah Hong was "about 1 foot long with an indented edge, just like the one used by Stallone." He also admitted that the knife and the rope had been brought there because "we just wanted to rob him of money and to frighten him, that Ah Hong had stabbed the deceased "about two times" and that Ah Sang [D2] had brought the masking tape with him and had used it to tie the deceased, because "it was convenient for fleeing."

10. The police had thus learned about D2 from D1, and that he was in China. On 28th June they picked up D2 at the border at Lo Wu. At the police post there, he wrote a statement about "the course of events of a homicide case that occurred on 24-5 1989." In that statement he gave a long account of the events leading up to the death of the deceased. He said he had been approached by D1 and ah Hong to help them exchange some US currency. On the following day he telephoned the deceased and they all met at a restaurant in Minden Avenue where a deal was done between the deceased, D2 and ah Hong. They also told the deceased that they had more foreign currency to exchange (this time, Taiwanese notes). On 19th May D1 and Ah Hong told D2 how much they wanted to exchange. As a result he contacted the deceased and a rate was agreed. D2 met his friends on 22nd May at a cafe. Later D1 asked him to buy some adhesive tape. D2 did not ask why.

11. D2 explained, at length, how eventually all three of them met at a bus stop from where they set off for the deceased's home. He went on to write:

 

"             When I and SZETO Kwok-hei and WAN Wing-hong arrived at WONG Chor-wah's home, it was about 12:15 p.m. At that time they were carrying a travelling bag. They put the bag on the ground and said they went to toilet. After two of them had finished using the toilet, I said to SZETO, Fei Hong and WONG, 'You can have the transaction. If there are any fake notes, they shall be taken out.' After that, I went to the toilet. When I came out from the toilet, I saw WONG had been grabbed around his neck by SZETO and held above the ground and saw Fei Hong stab fiercely on WONG's front chest once with a sharp knife in his hand. At that time I was stunned by this situation and shouted why should they do so. At that time SZETO put down WONG and said to Fei Hong, 'Why did you kill WONG? We have previously said to hold up WONG and hit him to unconsciousness and tie him up.' Fei Hong said, ' As WONG struggled, therefore I stabbed and injured him because of a momentary agitation'. Later Fei Hong told me to mind my own business and not to make a report to the Police or he would kill me and my family as he had filled WONG.

 

            Later SZETO told me to open the travelling bag brought by them and took out the adhesive tape. I took out the adhesive tape and pulled it out for SZETO. SZETO told me to carry WONG to a bed. I refused. He and Fei Hong, the two of them, carried him to a bed. He also told me to give him the adhesive tape and asked me to life up WONG's feet for him to tie them up. As the matter had come to this stage, I could but do what he said by lifting up WONG's feet. Later I also saw Fei Hong take an iron-wire object and tied around WONG's neck. Later he turned around WONG's body and tied up WONG's hands at his back. Finally Fei Hong took a white T-shirt from the scene to wipe off the blood on the knife of the crime. He put the T-shirt into the travelling bag. Fei Hong also took out a bunch of banknotes from WONG's hand carrying bag and put the money into the travelling bag and took away all the cash from WONG's wallet. The wallet was also put into the travelling bag. Before we left, SZETO Kwok-hei told me to give him a pair of scissors.  He cut off the telephone wire and returned the pair of scissors to me."

 

12. D2 then related how he had put the blood stained clothes into an abandoned washing machine on his way down stairs, and how he had disposed of the scissors and the remainder of the adhesive tape.

13. He then said that he counted out the money in the travelling bag he had been given (brought there by D1 and Fei Hong) and found it to be $77,800. Later, he met his girl friend, and remembering that he had not given her a birthday present, he bought her a diamond ring for $6,000, and some clothes. He recounted what he had done on the days that followed and how he had been "sent" to Mainland China by D1 and had eventually decided to surrender himself.

14. Later, after having been given D1's statement to read, he told the police that as they knew everything he had no alternative but to tell them the truth. He said that D1 and ah Hong had told him that since all three of them owed large debts, he should think up a way to make money. They told him that they would even commit a robbery. Being heavily in debt "I acted recklessly and thought that I could get Wong Chor-wah as the target. The purpose was to rob his money." After the three of them had decided to commit the robbery at Wong's home, D2 made an appointment to visit him on the pretext of exchanging some Taiwan dollars for cash. He described what happened in these words:

"When three of us arrived at WONG's home, SZETO and Fei Hong said that they wanted to go to toilet. Later I said to them that it was my turn to go.  In fact it was because I did not want to see my friend to be tied up by them. When I came out from the toilet, I saw Fei Hong stab once on WONG's chest with a sharp knife in his hand. I asked 'why do you kill him?' Fei Hong said that because WONG resisted, therefore he stabbed him once in an impulsive moment. Seeing that the matter had come to this stage, I took out the adhesive tape from the travelling bag and together tied up WONG and placed him on the bed. Before we left, SZETO cut the telephone line. As to the subsequent development of the incident, it is the same as I have above mentioned. This is the fact of the matter. As I was afraid of my guilt, therefore I have just concealed a part of the fact."

 

15. In answer to questions put to him, D2 explained how he had arranged a false alibi : "Since we first did not intend to kill Wong Chor-wah, we just intended to hit him and make him lose consciousness and to tie him up and then leave."

16. When giving evidence before the jury, D1 said that it was D2 who had suggested that a robbery was the way to get the money they all needed, and that they discussed the possibility later in the company of Ah Hong. It was Ah Hong who had suggested that, as the deceased was D2's friend, D2 should also be tied up. D1 met D2 again on the morning of the robbery at a restaurant. When Ah Hong joined them some time afterwards D2 immediately asked him how things were going. Ah Hong responded "Okay I have brought a knife with me." According to D1 he had not previously been aware that a knife was to be carried. On being asked why he had brought it Ah Hong replied "The purpose was to frighten his friend." D1 said he had no reason to doubt this explanation because it was normal that a knife would be used in a robbery and that if someone pointed a knife at him, he would "surely" hand over the money or property demanded. "I believed that he used this knife to threaten or to scare his friend in the course of the robbery and not for other purposes." He added that he dial not actually see it until Ah Hong produced it at the robbery.

17. According to D1's evidence, when the deceased let them in to his home, he became very scared and went to the lavatory. The others followed in turn, first Ah Hong and then D2. When Ah Hong returned he took out a knife from his person, pointed it at the deceased and threatened him. D2 at this time was still in the lavatory. D1 said that when Ah Hong produced the knife he himself used a piece of rope which he had picked up in the street on his way to the deceased's home : "I used the rope round Ho's friend's neck. I also grabbed hold of his left hand with my left hand with a view to tying him up..." "When I was tying him, he put up a struggle." ..."He put up a struggle and resisted. I found that he was struggling vigorously. I was still holding the rope in my hand." ...."In fact my right hand was holding two ropes because the rope was around the man's neck and my left hand was grabbing hold of his left hand."

18. When he had a chance to have a clear look after the struggle D1 saw that there were blood stains on the knife that Ah Hong was holding. "I was very scared and I was a bit shocked." During the struggle the deceased had cried out. D1 asked Ah Hong why he had stabbed the deceased and was told it was because he was resisting.

19. D1 went on to relate that he helped Ah Hong put the deceased on the bed and that, at D2's request, he assisted D2 to bind the deceased with the adhesive tape. In the meantime "Ah Hong ... used my rope to tangle his neck and also ... pressed him on the bed." D2 then took the deceased's wallet and gave money to Ah Hong. Following this, D2 cut the telephone wires, and they left. D1 then shared the money with Ah Hong in a park at Sha Tin. His own share was $300,000.

20. After D1 had been referred to his statement to the police by prosecuting counsel the following exchanges took place in cross-examination:

"Q.	Your intention was this, wasn't it, that you and the others were to render the deceased unconscious, tie him up and rob him?
A.	Only I was forced to when making unconsciousness - if we could tie him up without doing any further to make him faint or pass out, then we could just turn up - unless we were forced to.
COURT:        What do you mean by 'unless you were forced to'? What doest hat mean?

A.	That means normally if he put up struggle or resistance then we would hit him to make him unconscious.
Q.	In your plan and discussion concerning the robbery, how did you determine to subdue him?
A.	Because at that time Ah Hong suggested that he would bring along with a knife in order to threaten Ah Sang's friend, and I believed that it was the real purpose that he brought a knife with him. And I also believed that when the knife was produced by Ah Hong and when Ah Sang's friend was being threatened, then he would not put up any resistance or struggle.
COURT:        Supposing he did put up a struggle?
A.	I did not think of that."

21. D1 went on to say that he had never thought about the possibility that the deceased might resist when the rope was wrapped round his throat and held. "I was only thinking of my own convenience". However, under further cross-examination he agreed that it would be a natural reaction for a person to resist when he was being choked and that he had expected the deceased to resist when he placed the rope around his neck and held it tight. He conceded that he had intended that if the deceased put up a struggle he would pull the rope tighter until resistance ceased. In re-examination, having been reminded of this last admission and asked "Were you prepared to kill?", he replied "No."

22. Before the jury, D2 recounted at great length how the robbery, first suggested by Ah Hong, was planned and arranged, and the part he had played in tricking the deceased into having $710,000 with him at home so that he could be robbed of it. He said that he had bought a roll of adhesive tape because he was asked to do so, and he explained how he was persuaded, despite his initial refusal, to take part in the robbery. When he asked Ah Hong what would happen in the deceased's home, he was told :

"Now once we get in, you go to toilet first. And then once you are in toilet, we will tie up Wong Chor-wah. And when you hear anything, you come out from toilet and we will tie you as well."

 

To this, D2 said "Well watch out, don't do anything foolish." He was told that he need not worry. According to D2 he did not know that Ah Hong had a weapon with him. Nor did he know that D1 had brought a length of nylon rope to the premises. He did not think that Wong would be hurt. He felt confident that D1 and Ah Hong could tie him up without hurting him.

23. He further testified that when they entered the flat, he introduced his companions to the deceased and that he then went into the lavatory, as planned, expecting that the deceased, and later he himself, would be tied up with the adhesive tape that he had brought to the flat. Having spent about two minutes in the lavatory he came out and saw D1 grabbing hold of the deceased's neck with his right hand. The deceased was being lifted up so that only one of his feet was touching the floor. This made D2 very scared. He saw that Ah Hong was holding a knife and that it had already penetrated the deceased's body. He rushed forward and said "what are you doing?" He also heard someone (he thought it must have been D1) say "why use the knife to stab him?" Then one of the two other men (he could not say who it was) said "since he put up very strong resistance and because of the urge of the situation, I used the knife to stab him." D1 then released the deceased who sagged to the floor. Although D2 took the adhesive tape out of the bag in which he had carried it to the flat, he refused to help bind the deceased's hands and feet. D1 carried out this operation after Ah Hong had taken a wallet with money in it from the deceased's hip pocket.

24. According to D2's narrative, Ah Hong then indicated that, as arranged, it was now his turn to be tied up. However, D2 was by now, very frightened and refused to allow him to do this. He was then given some of the money taken from the deceased. When he left the flat he did not know whether Wong was alive or dead; he thought he had merely "sustained injuries". On his way downstairs, he threw away a blood stained T-shirt which had been in the deceased's flat and which Ah Hong had used to wipe the knife with which he had stabbed the deceased. He explained that because he did not realise that his friend was so badly hurt he did not call an ambulance or take any other action.

25. D2 then told the jury that after he left the premises he met his girl friend and went shopping with her. He did not go home but stayed with a friend and made arrangements for some money to be kept in his friend's account and that some of it be sent to his girl friend. His share of the proceeds of the robbery had been $77,800.

26. D2 then spoke of his escape to China and the letter he wrote before his departure. The letter was produced in evidence and was clearly intended to exculpate him. He arrived in China on 2nd June and surrendered himself to the authorities in Shenzhen on 13th June. He had felt uneasy and depressed after hearing that his friend had died, and was unable to sleep at night.

27. When asked by his own counsel about the passage in his second statement to the police that he, D1 and Ah Hong had "just intended to hit the deceased to unconsciousness, and to tie him up and then leave", he said this was not correct. Then when asked to explain why he had written something which was not true, he said:

"It is because when I was writing down this sentence, it reminds me of the scene, what happened or what took place at the scene, and so I put down here what actually took place at the scene. I remember now that when I was writing down the sentence, the police bought me a cup noodle, so I forgot to make amendments."

 

28. However, this most unpersuasive explanation did not account for the fact that he had written almost the same words in his first statement and had not seen fit to make any correction on that occasion.

29. In his summing up, having given a brief and helpful introduction, the judge said this:

"             The important matter in this case, members of the jury, turns on what is commonly called by lawyers as 'joint enterprise'.  Where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise. Even if unusual consequences arise from the execution of the agreed joint enterprise, both are liable for those consequences.

 

            However, if one of them departs completely from what has been expressly or tacitly agreed as part of the joint enterprise, the other is not liable for the consequences of that unauthorized act.

 

            To use a simple example. If two persons go to rob a bank, one of the persons is standing by the door guarding it and one of the persons is actually taking the money, and a cashier tries to prevent the money from being taken and is wounded or, for example, shot by the person close to the cashier, both persons are liable because that is the joint enterprise to rob.

 

            However, if it is a completely unauthorized act, for example, if the robber close to the cashier took her away and raped her, then the other man would not be liable because it clearly wound be an unauthorized act. "

The passage before the examples is a common form of summing up in this sort of case, and can be traced to a formulation by Lord Parker C.J. in R. v. Anderson and Morris [1966] 2 QB 110.

30. The judge then directed the jury that the fairest way to approach the evidence was to assume in favour of the defendants, notwithstanding that it was contested by the prosecution, that a third man was indeed present and that it was he who caused the fatal injuries to the deceased with the knife he had brought with him.

31. Neither Mr. Plowman for D1 nor Mr. Buchanan for D2, who appeared in this court but not in the court below, offered any criticism of this general direction given by the judge on the law relating to joint enterprise. However, they complain, with justification, that the illustration which he gave the jury as an example of the effect of one party to a joint enterprise departing completely from what had been expressly or tacitly agreed by the others is wrong and would have confused the jury. Plainly the first part of the illustration is wrong in that, taken literally, it would be understood to mean that all participants in a bank robbery, would, without more, be automatically criminally responsible for the shooting by one of their number of a cashier who tries to prevent them from taking the bank's money. It was accepted however that the second part of the illustration is correct for there can be no doubt that the other participants in the robbery would not be liable for the completely unauthorised and unforeseen act of one of their co-adventurers abducting and raping one of the cashiers.

32. We think it would have been plain to the jury that the two parts of the illustration were intended to represent two contrasting situations. The opening words of the second part of the illustration "However, if it is a completely unauthorised act" convey the unmistakable meaning that the act referred to in the first part, namely the shooting of the cashier, was an act authorised by the other partners. Moreover, shortly after giving this example the judge removed any possibility of misunderstanding that would have arisen had the jury been left to consider the first part of the illustration in isolation. He put the matter this way:

"            First, did the accused intend to kill or cause grievous bodily harm to WONG Chor-wan in the sense that he agreed with Ah Hong that in the course of their joint enterprise of robbing WONG Chor-wan he should either be killed, for example so that he could not give evidence against them, or he should be caused grievous bodily harm, for example so that he could not prevent them from robbing him, and did he die as a result of that conduct by Ah Hong. If so, an accused is guilty of murder, and you must ask that question separately for each defendant.

 

            As I was telling you earlier with regard to giving a separate verdict, you must look at the matter wholly separately. In other words, a verdict of guilty against one defendant does not necessarily mean a verdict of guilty against the other. Look at both of their cases separately.

 

            The second question is this: Did the accused contemplate and foresee that Ah Hong might kill or cause grievous bodily harm to WONG Chor-wah as part of their joint enterprise, and did he die as a result of such conduct by Ah Hong? If so, it is open for you to find that he so intended and that he is guilty of murder."

33. We are therefore of the opinion that, despite the unfortunate example given by the judge in the first part of his illustration, the jury could have been left in no doubt that they could not find either applicant guilty of murder unless they were satisfied beyond reasonable doubt that, at the very least, he had contemplated that Ah Hong might cause grievous bodily harm to the victim during the course of the robbery.

34. Mr. Plowman formulated D1's principal grounds of appeal in this way - (1) the judge had failed to direct the jury to consider whether there was an express or tacit understanding among the applicants and the third man that serious harm or death should be inflicted, if necessary, in the execution of their plan to rob the deceased, and (2) the jury was directed to consider foreseeability of death or serious harm to the deceased as a possible result of the execution of the joint enterprise as the relevant mens rea, but the judge had failed to invite the jury to consider the possibility of D1 having thought of the risk but dismissed it for whatever reason.

35. Mr. Buchanan also submitted that the judge's summing up was flawed by his failure to direct the jury on the "remoteness" issue.

36. In Chan Wing Siu and Others v. The Queen [1985] AC 168 the Privy Council said at p.179:

"             Where there is an evidential foundation for a remoteness issue, it may be necessary for the judge to give the jury more help. Although a risk of a killing or serious bodily harm has crossed the mind of a party to an unlawful enterprise, it is right to allow for a class of case in which the risk was so remote as not to make that party guilty of a murder or intentional causing of grievous bodily harm committed by a co-adventurer in the circumstances that in the event confronted the latter. But if the party accused knew that lethal weapons, such as a knife or a loaded gun, were to be carried on a criminal expedition, the defence should succeed only very rarely.

 

            In cases where an issue of remoteness does arise it is for the jury (or other tribunal of fact) to decide whether the risk as recognised by the accused was sufficient to make him a party to the crime committed by the principal. Various formulae have been suggested - including a substantial risk, a real risk, a risk that something might well happen. No one formula is exclusively preferable; indeed it may be advantageous in a summing up to use more than one. For the question is not one of semantics. What has to be brought home to the jury is that occasionally a risk may have occurred to an accused's mind - fleetingly or even causing him some deliberation - but may genuinely have been dismissed by him as altogether negligible. If they think there is a reasonable possibility that the case is in that class, taking the risk should not make that accused a party to such a crime of intention as murder or wounding with intend to cause grievous bodily harm. The judge is entitled to warn the jury to be cautious before reaching that conclusion; but the law can do no more by way of definition; it can only be for the jury to determine any issue of that kind on the facts of the particular case."

 

37. Was the present a case where the jury needed more help than they received - could it be said, on the versions given by the applicants in their defence, that the risk of Mr. Wong being killed, or of serious bodily harm being caused to him, was so remote as to be dismissed as negligible?

38. D1 had admitted to the jury that he knew that Ah Hong was carrying a knife; that he himself had brought a length of nylon rope which he used to put around the deceased's neck as soon as Ah Hong had drawn his knife and was menacing the deceased; that the deceased had then put up a struggle; that it had been his intention all along to render the deceased unconscious if it became necessary to do so; that he had intended that if the deceased put up a struggle he would tighten the rope around his neck until resistance ceased; that he realised that this was a very risky thing to do and that if the rope was pulled too tight the deceased might die; and that, although he was not prepared to kill the deceased and in fact "did not have any intention whatsoever to hurt his friend", he was prepared to use whatever force was necessary to ensure the success of the robbery.

39. In the light of these admissions we think it would have been completely unrealistic and unnecessary for the judge to have given the jury an extended direction. In our view the general direction which he gave on the criminal liability of a secondary party for acts of the primary offender where the crime is foreseen as a possible incident of the joint enterprise was entirely adequate. We think that we should here observe that if party A to joint enterprise of robbery contemplates that, if necessary, party B will use a knife to inflict serious bodily harm to the intended victim, it is irrelevant that in fact party B uses some other weapon or means to cause injury to the victim from which he dies. Likewise it is irrelevant that party A does not consider what specific weapon or means party B might use to do serious harm to the Victim. Provided that party A contemplates that such harm might be inflicted, he is guilty of murder if party B uses such violence on the victim that causes his death.

40. In R. v. Hyde [1990] 3 WLR 1115 at 1119 Lord Lane C.J. had this to say:

"There are, broadly speaking, two main types of joint enterprise cases where death results to the victim. The first is where the primary object of the participants is to do some kind of physical injury to the victim. The second is where the primary object is not to cause physical injury to any victim but, for example, to commit burglary. The victim is assaulted and killed as a possibly unwelcome incident of the burglary. The latter type of case may pose more complicated questions than the former, but the principle in each is the same. A must be proved to have intended to kill or to do serious bodily harm at the time he killed."

 

..............

 

"If B realised (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out, B had in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder."

 

41. As to D2, it was not his case that he knew that Ah Hong was carrying a knife but thought that it would only be used to frighten Wong. Nor was it his case that the thought had occured to him that Ah Hong might stab Wong but that he had dismissed that possibility as being altogether negligible. His case was that he did not know that Ah Hong was carrying a knife and that he did not contemplate that any violence would be used apart from tying up Wong.

42. It was not incumbent on the judge to invite the jury to consider possibilities that did not arise on the evidence. In the light of the defence presented by D2 the judge's general direction that he would be guilty of murder if (a) he intended to kill or cause grievous bodily harm to Wong in the sense that he agreed with Ah Hong that in the course of their joint enterprise of robbery Wong should either be killed or seriously injured, or (b) he contemplated and foresaw that Ah Hong might kill or cause grievous bodily harm to Wong as part of that joint enterprise, was sufficient.

43. Clearly the jury did not believe the D2's version. They must have concluded, at the very least, that he had contemplated that grievous bodily harm might be inflicted on Wong in the course of the robbery. On the evidence before them that D2 was present at the restaurant when Ah Hong had said that he was carrying a knife, and on the admissions made by D2 in each of the two statements he made to the police that he and his two companions had intended to hit Wong until he was rendered unconscious, the jury were fully entitled to draw the necessary inference and to return a verdict of guilty of murder against D2.

44. Mr. Buchanan further submitted that the judge had misled the jury into thinking that the evidence of D1 was that D2 was present when Ah Hong announced that he had brought a knife with him. He contended that D1's testimony was to the effect that D2 was absent at that time. This submission is based upon the following part of the transcript of D1's evidence in chief:

"Q. Did that come a time when Ah Sang left the cafe ...

COURT: Could I just ask when this discussion took place about the knife, did you see the knife?

A. No.

Q. Did that come a time when Ah Sang left the cafe?

A. Yes, he left to make a phone call.

A. And what happened?

A. Then a while later someone rang up and look for Ah Sang.

[Short adjournment.]

[Court resumes]

Q. Mr. Szeto, I think we have reached a stage before the adjournment when you told your Lordship that there came a time when Ah Sang went out of the restaurant to make a telephone call.

A. Yes."

45. When the transcript of what D1 said before, in and after this passage is read together, it is perfectly clear that according to him D2 was indeed present when Ah Hong declared that he had brought a knife. In the first two questions set out above, the word "that" should obviously be "there"; this is, incidentally how D1's counsel (who after all was putting the questions) understood the position - see the final question we have set out. It is just not possible to read the relevant part of the transcript to mean that D1 was saying that D2 was away making a telephone call when Ah Hong mentioned his knife.  After all, he did this (according to D1) as a result of D2's query about how things were going.

46. Mr. Buchanan also contended that part of the summing up the judge was unfair to D2 and, taken together with the other defects, the conviction was rendered unsafe and unsatisfactory. The complaints related to the judge's treatment of the evidence as to (a) why D2 had gone into the lavatory (b) what he had told the police about the plan to hit the deceased to unconsciousness and (c) D2's post-robbery conduct. As to (c), this is the passage complained of:

 

"             Now members of the jury, you may think this man's conduct, after the stabbing took place, was really quite disgraceful. This was his friend for many years, whom he left, who may be still alive on that bed, bleeding and severely injured. What did he do: he went round and got in touch with that young woman you have seen and bought her a diamond ring and spent money on her.

 

            You may think his conduct on that day really was quite monstrous. But do not allow that to influence your mind. Although that is a moral judgment, we are a court of law, not a court of morals. You should try to put that matter out of your mind in examining this matter fairly."

47. Mr. Buchanan suggested that while these comments were justifiable in one sense, the forensic evidence had given no indication as to the time of death and D2 had testified that when he left the flat he did not know whether the deceased was alive or dead - he "only thought that he had sustained injuries". In these circumstances, Mr. Buchanan argued, D2's conduct was not in the "monstrous" category. We are quite unable to hold that these comments went too far in the circumstances and the judge was at pains to caution the jury not to allow that conduct to influence their minds. There is nothing whatever in this point, or in either of the others raised by Mr. Buchanan.

48. For the reasons we have given we are satisfied that the convictions must be upheld. However, in view of the misdirection by the judge in the first part of the illustration which he gave and to which we have referred we have come to the conclusion that we must apply the proviso. The applications for leave to appeal are therefore allowed hut the appeals are dismissed.