THE QUEEN v. CHEUNG SAI HUNG AND ANOTHER

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JUDGMENT

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Li, V.-P.:

1. The applicants, CHEUNG Sai-hung and YEUNG Hing-yu, were originally indicted together with two other persons for two counts of murder and one, count of robbery. They were respectively the lst and the 3rd accused (D1 and D3), the other two persons being the 2nd and the 4th accused (D2 and D4). At the end of the trial D2 and D4 were acquitted of all counts on the indictment, D1 was convicted of two counts of manslaughter and one count of robbery. D3 was convicted of two counts of murder and one count of robbery. Dl and D3 applied for leave to appeal against conviction on all counts.

2. Having heard counsel we came to the conclusion that the applications by both applicants should be granted and that the applications should be treated as the appeal proper. We allowed the appeal and quashed the convictions on all counts in respect of both applicants. We indicated that we would give our reasons later which we now do.

3. On the 27th of June 1983, some time after 10 a.m., the King Fook Gold Company in Miramar Arcade was robbed of gold to the value of over $1.6 million by four or five robbers. In the course of this robbery two Pakistani guards were shot dead in cold blood by one of the robbers. That the robbery and the killing did occur at the time had not been seriously challenged at the trial. Nor was the proposition that those who participated in the robbery had a common intent to use firearms.

4. The simple issue teas one of identity of the participants in the robbery. To prove the guilt of each accused the Crown relied basically on the evidence of one of the participants, namely WONG Chi-kin (referred to as Accomplice Wong).

5. On the 22nd of July 1983 Accomplice Wong was granted immunity by the Attorney-General in return for his giving full and true evidence at the trial. His evidence may be summarized as follows.

6. He had known D1 and D2 for a few years while they were in Canton. On the 25th of June 1983 D1 contacted him to meet in a flat in Fa Yuen Street. Upon arrival Accomplice Wong saw Dl, D2 and two other persons whom he had not met before - D3 and D4. In the course of that meeting the plan to rob the King Fook Company was discussed. Use of firearm was mentioned because they knew that the company had armed security guards. That same afternoon all five went for a reconnoitering trip in the target area. They decided to carry Cut the plan the next day. They met at the Fook Wah Restaurant in Shamshuipo in the morning of the 26th of June 1983. All five travelled to the Miramar Arcade in a car driven by D3. When they got there they found l the place eras too crowded and that there were police officers around in the vicinity. They decided to defer the robbery to the next day.

7. On the 27th of June 1983 all five met again in the same Fook Wah Restaurant. They went in a stolen car driven by D3 to the scene. In the course of the journey D1 gave Accomplice Wong a gun, a O.38 police revolver (Exh. P24), and told him to overpower the security guards, at least one of whom had a shotgun. He told Accomplice Wong that the revolver would be of good use to him and told him to lookout for himself. D4 produced two guns, gave one to D1 and kept one himself. D3 produced a Colt, O.45 automatic, and kept it himself. They went down Nathan Road, went round the block of Miramar Arcade and stopped at Hillwood Road where all got out except the driver, D3. Arrangement was made that D3 would drive the get-away car to the junction of Nathan Road and Kimberley Road near the King Fook Company to facilitate his friends' get-away after the robbery.

8. The party then went into Miramar Arcade. D1 and D4 walked ahead with D4 carrying a wooden plank to jam the automatic door of the gold shop. Accomplice Wong and D2 walked a few paces behind them. When they entered the Miramar Arcade, Accomplice Wong came across one security guard armed with a shotgun, Mamrez Khan, the victim of the 2nd count. Accomplice Wong tried to snatch the shotgun by threatening Mamrez Khan with the O.38 revolver. A struggle ensued. Soon an unarmed guard, Zabit Khan, the victim of the 1st count, joined in the struggle against Accomplice Wong.

9. In the meanwhile D1, D2 and D4, wearing stocking masks, went into the King Fook Company where D4 fired two shots, declared robbery, grabbed the gold and ran out of the shop. Accomplice Wong continued to struggle. An off duty police sergeant, Sergeant Ko, was travelling at the time on a bus. He saw the struggle, alighted from the bus and tried to grab Accomplice Wong. At that juncture, D3 had driven the car to the junction of Kimberley Road and Nathan Road, blocking the traffic. D3 got off the car,went up the concrete wall of a tree bed above the struggling group. He then jumped down, ran to the struggling group, told the people not to move and he fired two shots killing the two Pakistani guards. Accomplice Wong picked up the shotgun, ran towards the getaway car and used his own gun and the shotgun to hold up traffic and pedestrians. D3 and the other three accused ran to the car, drove away to Austin Road, abandoned the car and made their way to a flat in Jordan Road where they had the gold melted by someone, nicknamed "the Godfather". There they calculated the share which each of the five should receive. Each share was supposed to be $1.75,000. Accomplice Wong got $35,000 in cash and was prepared to wait for the balance. Then he left with D1.

10. There was the evidence of Sergeant Ko. He said that in the course of the struggle he saw someone joined in and shouted to them not to move. He looked back over his shoulders and saw that person with a gun, and that person had a stocking mask pulled down to just above the eyebrows. Then he heard two shots. He quickly went down on his face. Then he heard people run away. He stood up and saw people running towards the car, including the killer- the half-masked man and the others. He saw the car being driven away. He said that when he looked back over his shoulder, he saw the face of the killer for about 2 to 3 seconds.

11. Another witness, WONG Yuk-wi (Witness Wong), said that at the time of the robbery he was on a pavement somewhere outside the Miramar Arcade. He heard shots fired inside the King Fook direction. He started to run but it was too late. So he jumped on to the concrete wall of the tree-bed, the same wall that Sergeant Ko described the killer jumped up to before the shooting. He saw that the driver of the car did not wear any mask. At the same time he saw two robbers coming out from the King Fook Gold Shop. One of whom killed the guards. He was not sure of the features of the killer because his face was masked. On an identification parade, Witness gong identified both D1 and D3. Sergeant Ko, however, identified an actor as D1, but he identified D3 as the killer.

12. D1 was arrested in the evening of the 1st of July 1983. Chief Inspector WONG Sai-yuk interviewed him at the Organized and Serious Crimes Bureau (OSCB). D1 was cooperative and he gave the telephone number and paging number of D2 and D3 after he, D1, was shown photographs by the police. He led the police to arrest Accomplice Wong. D2 and D3 were arrested on information on a playground at Choi Yuen Estate in the New Territories. Accomplice Wong was arrested on the 7th of July. He was captured in a friend's place. D4 was arrested in April 1984 while attempting to leave for China. It was an agreed fact that soon after his arrest Accomplice Wong made a statement to Chief Inspector WONG Sai-yuk. Thereafter Accomplice Wong was hospitalized for his leg injuries. In the hospital Chief Inspector WONG Sai-yuk asked Accomplice Wong to turn Crown witness in return for an immunity. Accomplice Wong made his second statement which was consistent with his first statement made on arrest. The second statement made on 19th of June implicated D1, D2, D3 and D4. Having considered his statements the Attorney General granted him an immunity on the 22nd of July 1983 in return for his giving full and true evidence.

13. All four accused were separately interviewed upon arrest. Each of them made cautioned statements. At trial they all challenged the admissi-bility of their respective statements on the ground of physical violence and threats. Having held the voir dire, the learned trial judge rejected the cautioned statements made by D1, D2 and D3. However, he admitted the cautioned statement made by D4 upon the basis that D4's allegation of physical violence was completely groundless and ludicrous. Perhaps it is appropriate at this stage for us to mention that although D2's cautioned statement was rejected, his subsequent conversation with one Superintendent Chan in which D2 admitted his full implication or participation in the robbery was allowed to be adduced in oral evidence given by Superintendent Chan.

14. At the end of hearing evidence and after counsel for prosecution, counsel for the 1st, 2nd and 3rd accused had addressed the jury the judge, in the absence of the jury, made a ruling withdrawing from the jury the cautioned statement made by D4. In the absence of the jury the judge expressed his doubt as to the evidence concerning the whole approach of the investigating team including Superintendent Chan and Sergeant 7555

15. After a few exchanges with counsel on this matter, the learned trial judge further at page 818 of the transcript said:

"I was talking about the 4th defendant. I beg your pardon. I am getting confused. I was talking about the 4th defendant. I moved to the 2nd defendant. The evidence relating to his statement was given by the most senior officer involved in this case. In view of my feelings about that statement, it must I think, have a bearing upon my feelings about the statements of the 4th defendant. In these circumstances, I am going to exclude from, the jury exhibits P33, 34 and 35, the statements of the alleged admissions of the 4th defendant. So far as the 2nd defendant is concerned, of course, the issue of voluntariness doesn't arise. It never has arisen in this case. One says that he said it and the other says he didn't."

Later, he said:

"The point is if one entertains a doubt about the way the 2nd defendant's statement came into existence by the senior officer involved in the investigation of this case, then whilst it doesn't directly, perhaps, affect the evidence in relation to the 4th defendant, surely it does raise a doubt in my mind, some anxiety, some disquiet."

16. It was also an admitted fact that the late Chief Inspector Wong was a thief and thoroughly dishonest. Upon the arrest of D1 on the 1st of July in respect of another robbery Chief Inspector Wong took over the $20,000 found in D1's possession. Subsequently, it was found in other cases that Chief Inspector Wong had stolen exhibit moneys to the total of over $590,000, part of which was $230,000 exhibit money stolen in connection with another case. In the end Chief Inspector Wong shot himself in November 1983 before the trial.

17. D3 having been arrested at about 9 o'clock in the evening of the 6th of July was taken to OSCB, kept under guard and interviewed in the early hours of the morning on the 7th. Shortly after the conclusion of the interview at about 10.30 a.m. on the 7th of July, he went with a party of police to the premises at 28 Chung Fat Shreet in Tokwanwan where the murder weapon, the Colt O.45 (Exhibit P23) and a police O.35 revolver and some ammunitions wrapped in wax paper and newspaper dated the same day of the robbery were recovered from the landing between the 2nd and 3rd floor of the premises. It was suggested by the prosecution that it was D3 who led the police party to the premises where the arms and ammunitions were recovered. That suggestion was strongly challenged by the counsel of D3.

18. No useful purpose will be served by going into the details of the evidence in this particular trial. Suffice it to say that regarding the issue of identity, the only evidence against D1 came from Accomplice Wong. The evidence against D3 may be summarized as follows:

a)     the evidence of Accomplice Wong,

b)     the identification by Sergeant Ko and WONG Yuk-wai, and

c)     the recovery of the guns.

Accomplice Wong admitted that he had a conviction for which he was sentenced to three years in China but he escaped from prison and came to Hong Kong as as illegal immigrant.

19. At the close of the prosecution case learned counsel for the 1st defendant called no evidence. However, he made a submission of no case to answer. The learned judge's attention was directed to the fact that Accomplice Wong was a scoundrel, thoroughly unreliable and had previous convictions. He was a convict who escaped from prison and lied about his second conviction. He was a full participant to the robbery and was prepared to use the gun allocated to him.

20. Chief Inspector Wong who arranged for Accomplice Wong to be a Crown witness was also a thoroughly dishonest person and a thief. He took possession of and stole the $20,000 seized from D1 in respect of another case. This Chief Inspector had every motive to frame D1 so that D1 would not be in a position to testify against him of theft. It was submitted at the time that apart from the evidence of Accomplice don there was absolutely no other evidence against D1.

21. D3 gave evidence. He said he was a hawker. On the 27th of June 1983, he got up at around 10 or 11 in the morning. Then he had tea with his wife in a restaurant at about noon. After that he started his hawking business as from 2 p.m. until 10 - 11 p.m. in the area between Soy Street and Tung Choi Street. He was arrested on the 6th of July 1983 together with the 2nd accused. After the arrest he was taken back to OSCB. He was shown photographs of D1, D2 and himself by Chief Inspector Wong who said: "All these photographs have been dispatched to police officers and the officers all around Hong Kong, Kowloon arid New Territories knew you." He was interviewed in the early hours of the morning on the 7th of July until nearly about 10 a.m. At 10.30 a.m. he was taken by a party of police officers to a premises later known as 28 Chung Fat Street in Towkwawan. He said he never knew why or where he was taken to when he started the journey. On the premises he was taken up a flight of stairs. He said that a hood was put over his head throughout the journey. He was taken up the premises to have a look. He did not see clearly. All he saw was a parcel and then he was taken away. He denied that he ever put the parcel there on the landing of the staircase. Nor had he ever been to 28 Chung Fat Street before that occasion, He said that he had never seen Accomplice Wong before his appearance in court. He never spoke to Accomplice Wong at all. He denied he was a participant in that robbery or the killing.

22. As I said before the trial took a somewhat unusual turn. Having heard all the evidence and all the closing addresses save that of counsel for D4, the judge said at page 817:

"I have studied. these documents very carefully and listened to the course of the evidence of Superintendent CHAN and Sergeant 7555, and I have been through the evidence again last night. I am bound to say that having done all that, I now entertain doubts as to how that document exhibit P2 came into existence or whether it came into existence in the way in which they say it has."

23. It is perhaps necessary to observe the sequence of events. D2 was arrested on the 6th of July 1983. After that he was taken to the OSCB general office. He was interviewed and it was alleged that he made a voluntary statement. That statement was the subject matter of a voir dire. The statement was rejected by the judge. Shortly after the making of that statement which was not put in evidence, the 2nd defendant was taken into the office of Superintendent Chan where he was alleged to have a long conversation faith Superintendent Chan. Sergeant 7555 took a record of the conversation in the form of questions and answers. In the course of that conversation the 2nd defendant admitted practically everything. This set of oral evidence was allowed to be adduced before the jury.

24. The next thing that happened was that in the middle of their conversation Superintendent Chan cautioned D2, and D2 made an exculpatory statement. That was accepted and admitted as exhibit P3. The record of the conversation which was marked as exhibit P2 was never exhibited to the jury at all. However, the contents of the conversation were put before the jury in the form of oral evidence. It was the written record of that conversation that the judge was talking (exhibit P2) and he had doubts as to the manner it was taken. He then went on to make the comments at page 818 of the transcript referred to above (supra).

25. To show how the judge felt about the approach of the investigation it is pertinent to cite his remarks:

"Well, I appreciate that. You made that point before. The point is if one entertains a doubt about the way the 2nd defendant's statement came into existence by the senior officer involved in the investigation of this case, then whilst it doesn't directly, perhaps, affect the evidence in relation to the 4th defendant, surely it must raise ....

…………

It does raise a doubt in my mind, some anxiety, some disquiet.

…………

I know and I appreciate that. In fact, I think I made that remark at the time when I ruled that it was admissible. But I can only say that having been through all the evidence now and having this additional evidence which was not before me beforehand, I couldn't let this case go on on the basis that those statements were made voluntarily.

…………

The 4th defendant's statements. I really now have a feeling that there might be something. I am not saying, of course - obviously I am not making a finding that there was. I am just saying that there must be a doubt. In fact there is a doubt in my mind about this and I, therefore, think that it is only right that before the case goes any further, before Mr. CHENG addresses the jury, I should exclude those statements from the jury.

…………

He will be in the same position as the 1st defendant."

26. The summing-up to the jury was a fair and proper one. It put a lot of questions to the jury which were specifically within their function. Directing the jury on the question of common design the judge said at page 645 of the transcript:

"The law says that if two or more persons reach an understanding or arrangement that they will commit a crime, and while that arrangement is still in being, they are both present and one or other of them does or between them they do, in accordance with their arrangement, all things necessary that constitute the crime, they are equally guilty of it, provided the crime committed does not go beyond their understanding or arrangement.

        It is not necessary that the understanding or arrangement should be express. It could be tacit, in other words implied. I may have been arrived at by means of actions or words."

At page 646 he said:

"Of course you may think that on an expedition to commit an armed robbery of this sort the primary intention is really to rob, not to shoot anybody. You may think that the robbers would like to accomplish their crime without any resistance, and without the need or necessity to shoot anybody. You may think that their primary aim was to complete the robbery and get away with the loot, but that does not necessarily mean that they have not got an intention to kill or cause serious bodily harm, which is the essential ingredient to murder.

        Such an intention may exist even though it is hoped that the necessity may not arise.

At page 648 he said:

He told the jury in no uncertain terms that WONG Chi-kin was an accomplice. He said at page 652:

"The first thing to decide as you have been told, is whether WONG Chi-kin's evidence is credible, because if you reached the conclusion that it is not, no amount of corroboration in the world can serve any useful purpose. If you reached the conclusion that his evidence is credible then you can consider whether in fact it has been corroborated."

Then he told the jury of the lies which were told by Accomplice Wong. First of all, at the moment when he was arrested the accomplice gave a false story about his injured leg by saying that he was an illegal immigrant and hurt his leg by jumping off a train. Another lie was that he denied having been told by Chief Inspector Wong that D1 had informed upon him, the accomplice. Later, he contradicted this by saying that Chief Inspector Wong had told him that D1 had informed upon him. He denied that Chief Inspector Wong had said that he, the accomplice, could not go to hospital to have his leg injuries treated until he had made a statement admitting the robbery. However, before he went to the hospital he did make his statement admitting the robbery. Fourthly, he denied any improper suggestion on the part of Chief Inspector Wong to get him to be a prosecution witness. When it was put to him that Chief Inspector Wong had said, "If you do not agree to become a prosecution witness you will be dead for sure." He replied, "I can't remember." The judge also commented on the apparent discrepancies between his earlier statement to the police and his evidence in court and between his evidence in the committal proceeding and his evidence in court. Accomplice Wong said in evidence that before his arrest he did not realize that the third man who joined in the struggle was a policeman. He only realized this after the 21st of July in Lai Chi Kok Remand Centre. But he had to admit that, when he was confronted with the first statement of the 7th of July, he had referred to that person as a detective. Then the judge put the question of credibility of Accomplice Wong to the jury in the following terms, at page 664:

"Now I have touched on some of the points that have been made in cross-examination of WONG. You should consider all the evidence in respect of WONG which has been mentioned which you are considering his credibility. You must appreicate that he is a very important witness. You must reach your conclusions as to his credibility."

At the end of the case the only evidence against D1 was the evidence of Accomplice WONG Chi-kin. In this respect the positions of D1 and D4 were not different. As to D3 the only corroborative evidence against him was that of the identification by Sergeant Ko and the eye-witness WONG Yuk-wai. The identification of D1 by WONG Yuk-wai came to nothing because in the course of the direction the judge observed that the Crown did not rely on that piece of evidence as corroboration. The reason was that WONG Yuk-wai, the eye-witness, said that when he appeared on the identification parade he was not sure of his identification. WONG Yuk-wai's observation of D1 at the time of the alleged robbery was so confused that it was obviously impossible to rely upon his identification. Thus at page 669 the judge said:

 

"I will have to go into the identification evidence more fully with regard to the 3rd defendant, but really this evidence of the identification of the 1st defendant by WONG the eye-witness is just not good enough. If he had no chance to see their faces, how could he possibly identify the 1st defendant reliably? That being so, there is no independent evidence to corroborate WONG Chi-kin's evidence that the 1st defendant was one of the robbers."

Another reason why WONG Yuk-wai could not be relied upon was that his evidence was completely inconsistent with the evidence of Accomplice Wong.

27. Then the judge proceeded to analyze the evidence against D3. He did it extremely fairly in his reference to the evidence of identification of D3 by Sergeant Ko and the evidence of how the arms and ammunitions were recovered by the police in company with D3. He said at page 691 as follows:

"Now the imputation obviously against these police officers is of course that this whole trip out to No.28 Chun Fat Street is a charade for the benefit of the press and for the self-glorification of Chief Inspector Wong.

        Well, it does seem an extraordinary situation that the guns should have been left at such a place. You may well ask yourselves, 'Why there?'  It is something we shall never know. 'Why should the guns have been left on neutral ground?', you might think. If this was an attempt to fabricate evidence against the 3rd defendant,  you might think that it would have served Chief Inspector WONG a great deal more purpose if he had made sure that the murder weapon had been found in some place which had some connection with the 3rd defendant. But this appears to be neutral ground and it rasies a question: Why there?"

In the event the jury retired at about 11 o'clock in the morning and did hot return a verdict until 2.20 a.m. of the following morning. They acquitted D2 and D4 of all counts, but convicted D1 of two counts of manslaughter and one count of robbery; and D3 of the two counts of murder and the same count of robbery.

28. The first ground in support of the application for leave to appeal was in common between D1 and D3. It was contended that it would be wrong in principle that the jury should be required to consider their verdict for an inordinate and excessive time - in this case, 15 hours continuously. The learned judge ought either to have discharged the jury or to have made arrangements for proper accommodation for the jury overnight and for the resumption of their deliberations on the following day. It was argued that the inconsistent verdicts were the typical results of a tired jury. The most recent case in support of this ground cited to us is in R. v. Sutton & Moore ⁽¹⁾. In that case the Recorder commenced the summing-up at 6.15 p.m. At about 7.30 p.m., near the end of the summing-up, he asked the jury whether they wished to retire that evening or the following morning. They wished to proceed that evening, and they retired to consider their verdict at 7.44 p.m. At 10.05 a.m. they were given a majority direction. At 10.30 p.m. they returned a majority verdict against both appellants. Allowing the appeal the learned Chief Justice said:.

"10.30 p.m. was not the time for juries to reach conclusions and a verdict reached at that hour must be open to challenge. The Recorder's consultation with the jury before sending them out made no difference. The jury were left deliberating far too late and a verdict must inevitably as a result have been an unsafe and unsatisfactory one."

Unfortunately, we do not have a full report of this case. However, the commentary in the Criminal Law Review says that:

"The nature of the 'important considerations' requiring the conclusion of the trial on the second day does not appear. Justice is not seen to be done where a jury are required to decide an issue involving a person's liberty in haste and under pressure to reach a conclusion."

29. In the present case, however, the jury was not required to return a verdict in haste nor was pressure brought to bear upon the jury to reach a conclusion. There was no requirement to conclude the trial in any particular day. On the contrary, the jury were invited back to the open court at 10.30 p. m. on the day they commenced their deliberation and the court said to the jury:

"Mr. Foreman, counsel are concerned that you might be reaching a stage of mental exhaustion, and they have asked me to enquire whether you feel that you are capable, given further time, of reaching your verdicts."

Mr. Foreman said:

"Your Lordship will appreciate that in order to reach a fair and consistent verdict in such a complicated case we require a certain amount of time, and we are actually being asked to make 12 separate verdicts.

        We have come to a decision on certain of these verdicts and some are still outstanding. We estimate we will take another two or three hours to conclude.

        The jury is of the opinion that they would rather continue, rather than start off fresh, say, tomorrow morning and have to refresh our own memory of what stage we have reached."

Then the trial judge invited comment from counsel. Only Mr. Westbrook for the 2nd accused said:

"I have got nothing to say in that case. I was partly responsible for this. I was worried that they were getting so mentally tired that they would find it difficult to concentrate. Obviously if they feel that they can reach their verdicts given further time, then obviously that's the best course."

It was on that basis that the jury were allowed to go back to the jury room to continue their deliberations.

30. In the case of Windsor v. The Queen ⁽²⁾ the jury had been out for 5 hours until 5 minutes to mid-night and returned to the court. They declared that they were nowhere near reaching a verdict. Whereupon the justices discharged the jury. Commenting on this aspect Lord Cockburn, C.J. said at page 303:

"I have no hesitation in expressing my own opinion, that, after the jury have retired to consider their verdict, and have remained in deliberation a full and sufficient time, if they are not agreed, and there is no reasonable expectation of 'their coming to a unanimous decision, it is within the province of a judge presiding on a criminal trial, in the exercise of his discretion, to discharge the jury."

31. In the case of Daya Kalia & Others v: The Queen ⁽³⁾ the jury after long hours of deliberation returned to court and expressed the fact that they were feeling very tired and required a break and indicated that in that condition they felt unable to give a proper verdict on the remaining defendants. There were no facilities for accommodation for them overnight so that they could start afresh the next day. After certain discussions between the trial  judge and the foreman, the judge then gave them a majority direction. Some 13 hours after they had been out they returned their verdicts. Commenting on this aspect Lord Justice Roskill, as he then was, said (at page 206):

"We can readily understand why. He (the judge) did not want to interrupt them earlier. He was under no obligation to do so. It was a very long case. They appeared to be getting on happily. They had not come back. He then arranged for further refreshments. The  jury went out again and came back arid returned their verdicts at 3.50 a.m. some 15 hours or so after they had first gone out."

Commenting that the return of verdict at 3.50 a.m. was unprecedented the then Lord Justice nonetheless dismissed the appeal.

32. Having regard to the authorities cited we are of the opinion that the present case is clearly distinguishable. In any event, the trial judge has a discretion whether to arrange for accommodation for the jury or discharge it if, after long deliberations, they cannot come to any conclusion whatever. In the present case, it was plain that the jury were quite prepared to go on and preferred to go on for a couple of hours more. In the circumstances, we were of the opinion that this was not a valid ground by itself to interfere with the verdict.

33. The second ground advanced on behalf of the 1st applicant was that the jury reached a verdict in respect of D1 which was inconsistent with the verdict in respect of D2 and D4 in that:

We feel that there was force in this argument. Accomplice Wong has been proved before the jury as being a thoroughly dishonest person. He was granted immunity in order to testify against all the four accused. The person who approached Accomplice Wong and arranged for an immunity for him was another thoroughly dishonest police officer in a person of the late Chief Inspector WONG Sai-yuk. The Trial judge in his direction set out all these factors to the jury in proper terms. The unsatisfactory state of affairs must be even more evident to the jury when the judge withdrew three cautioned statements made by D4 because he was dissatisfied with the investigation even by Superintendent Chan, the most senior officer conducting the investigation. The fact that D4 gave evidence and D1 did not made no difference. Their positions were identical. Although we are not affected by the prejudicial matters set out in Ground 2(b) of this appeal, all of which have been properly dealt with by the trial judge in the course of his direction to the jury, yet we could not help feeling a lurking doubt in the case of D1, having regard to the inconsistent verdicts. Having come to this conclusion, we do not feel it necessary to deal with grounds 3 and 4. Suffice it to say that had we had no doubts in the evidence of Accomplice Wong, then the manslaughter verdicts could have been rationalized and the judge would have been perfectly correct to have left the case to the jury.

34. The case against D3 had an apparent difference. The second ground advanced on behalf of D3 is that the jury's verdicts in respect of D3 were inconsistent with their verdicts in respect of D2 and D4. The case against D3 depended. heavily on the evidence of the Accomplice Wong. The jury did not believe the witness in respect of the participation of D2 and D4. Apart from the identification by Sergeant Ko and the evidence of the guns and ammunitions there was no basis for the distinguishing between D2, D4 and D3, save for the prejudice arising out of certain factors.

35. We have dealt with the so-called prejudicial factors in the case of D1. Similar observations apply to D3.

36. As far as the manslaughter verdict was concerned, we said it could be rationalized. In the case of So Ping Kuen v. The Queen ⁽⁴⁾ the learned Chief Justice said (at page 55):

"The grounds upon which a jury may reach their ultimate verdict must often remain a matter for speculation, and only too often cannot be explained by any method of logical reasoning. But it is, we think, an accepted principle that if there are reasonable and satisfactory grounds upon which it can be said that a jury has reached its verdict, that verdict ought not to be disturbed."

Coming back to Accomplice Wong's evidence against D3, the same observation regarding his evidence against D1 applies. The rest of the evidence against D3 was those of the eye-witness,WONG Yuk-wai, the identification of Sergeant Ko and the evidence as how the arms and ammunitions were recovered. In his diretion to the jury, the judge said of the evidence of WONG Yuk- as follows (at page 669):

"I will have to go into the identification evidence more fully with regard to the 3rd defendant, but really this evidence of the identification of the lst defendant by WONG the eye-witness is just not good enough. If he had no chance to see their faces, how could he possibly identify the 1st defendant reliably? That being so, there is no independent evidence to corroborate WONG Chi-kin's evidence that the 1st defendant was one of the robbers.

At page 674, the judge said:

Having regard to the evidence given by eye-witness Wong and the confusion he made, it was obvious that he confused D3 with the person who came out from the shop and fired the fatal shot. This was quite inconsistent with the evidence given by Sergeant Ko who said that the masked men came out from the shop after the shooting. At page 673 the judge directed, the jury on the evidence as follows:

"WONG the eye-witness testified that the driver, who would have been very close to him when he was behind the tree, wore spectacles and he drew an identikit picture of him and he said that he was riot masked. He also said that the killer was one of the two persons who came out of the shop and that the killer jumped up on to the flower-bed and took his mask off and ran to the struggling team.''

If Wong the eye-witness' evidence were accurate, then the driver, D3, could not have been the killer.

37. With reference to the identification by Sergeant Ko the judge reminded the jury that Sergeant Ko at first identified a wrong person who was an actor on the identification parade. When he went back again for the second identification after a few minutes he identified the 3rd defendant. The judge said at page 680:

"So a wrong identification was made first after seven minutes, and the identification of the 3rd defendant was made after nine minutes. Of course some of that time would have been taken up to explain the nature and purpose of the parade obviously.

        Now whether you regard the evidence of Sergeant Ko as corroboration is entirely up to you. It is for you to decide whether it is corroboration or not. 

       Remember also the difference between the eyewitnesses and WONG the accomplice in the roles played by the alleged killer, and also remember that WONG the eye-witness said that the driver wore glasses, and he prepared an identikit picture of him. You should bear this in mind when considering KO's evidence."

38. It must be observed that Sergeant Ko is a brave man. When he saw the struggle between the guard and one of the robbers, he got off the bus and went up to arrest the robbers. He did not at any stage see the face of the man who was struggling with the security guard, who was, of course, Accomplice Wong, if the Accomplice was telling the truth. The Sergeant said that suddenly a person behind him said, "Don't fucking move" and the Sergeant very naturally turned his head to see whether that person was a police officer or some other person. He saw a Chinese male holding a handgun pointing at the struggling men. This was a glance for about 2 or 3 seconds. He realised that the Chinese male was not a police man because he noticed that there was a mask on his head. He demonstrated that the mask was just down to his eye-brow. He saw the man behind him aimed and fired the gun at the Pakistani guards. The Sergeant then threw himself onto the ground as the second shot was fired. He laid on the ground face down. His look on the killer was nothing but a fleeting glance. Later, he looked up and he saw persons moved from the goldshop onto the pavement and from the pavement onto the car. That was after the fatal shots were fired and after he got up from his lying position. He saw the getaway car and the two persons from the shop running towards it. Accomplice Wong admitted that he was the gun-snatcher. He was the person who eventually picked up the shotgun from the ground after the Pakistani guards were shot, went to the junction of Nathan Road and Kimberly Road near the getaway car in order to stop traffic and other pedestrians and that he wore a mask.

39. As far as the Sergeant was concerned, the gun-snatcher wore no mask. In the course of his evidence and cross-examination Sergeant Ko admitted that he made a wrong description as to the killer in a statement he had made to the police soon after the shooting and also in his evidence in court. He made a distinction between the gun-snatcher and the killer. The judge at page 683 directed the jury in these terms:

"Is this an example, members of the jury, of the sort of confusion that may arise when things happen very quickly in very frightening circumstances" Is it possible that this is an honest man who has made an honest mintake about whether the person who snatched the gun was the killer whether the person who he saw standing-whether the gun-snatcher was the killer? Of course it would be a long distance from the spot Where he was to that junction as you have seen.

        The identification evidence, if you regard it as reliable, is sufficient evidence upon which to convict the defendant (namely D3) independently of the evidence of the accomplice. You can convict on identification evidence alone if you are satisfied with it. However, you can also use it as corroboration and the Crown rely upon it as corroboration in this case."

We have considered Sergeant Ko's evidence and compared it with the evidence of WONG Yuk-wai, the eye-witness and the evidence of Accomplice Wong. It seemed that Sergeant Ko's evidence did not support the evidence of the eye-witness that the killer was one of the man wearing a stocking mask. On the other hand, he did not notice the stocking mask on the gun-snatcher. If Accomplice Wong's evidence were true it could only have been Accomplice wong himself who masked, according to him.

40. Having regard to the circumstances in which Sergeant Ko observed the killer and having regard to the wrong identification in the first instance and also the inconsistency of his identification of the killer and the description of a killer and that of the evidence of the eye-witness and Accomplice Wong, Sergeant Ko's evidence of identification could be described at best as tenuous. A moment of confusion, a frightening experience and the fleeting glance may combine to bring about an honest mistake. We make haste to observe that that does not in any way detract from the fact that Sergeant ko acted with commendable bravery. For his bravery he deserves the highest commendation. If he made any mistake in the description of the killer that mistake was caused by the circumstances in which he observed the sequence of events and is quite understandable.

41. With reference to the discovery of the two guns and the ammunition, the prosecution evidence was even weaker. None of the police officers except Sergeant KAM Tin-po who wnet with D3 to 28 Chung Fat Street could testify as to who led the police including the late Chief Inspector Wong to the premises. They all said that when they set out all they knew was that they were going out in a party with D3 to the Tokwawan area. The police cars stopped in the area of Tokwawan some distance away from the premises concerned. D3 was hooded all the way. Some said the hood was lifted in the street for D3 to identify the house number of the premises. Inspector Clayton who was one of the police party testified that the hood was not lifted until D3 was brought into the lobby of the building. The reason was that there was a hugh press party following the police cars and it would not be wise to lift the hood while D3 was still in the street.

42. Sergeant Ko testified that D3 was escorted by two detective constables and was walking in front together with Chief Inspector WONG Sai-yuk. Then followed Inspector Clayton and Inspector Roberts. Sergeant Ko was somewhere behind these two groups while they were walking from the car to the premises concerned. In evidence-in-chief Sergeant Ko demonstrated how D3 indicated the route. He said that when demonstrating D3 used his finger to point at the direction. Under cross-examination it was put to him that D3 was in fact hand-cuffed to the back. Then he described D3 as indicating the direction by shifting his elbow from side to side. Nobody heard what was said between the Chief Inspector WONG Sai-yuk and D3  Inspector Clayton did give evidence that prior to the journey he was in a room when Chief Inspector WONG Sai-yuk interviewed D3. Inspector Clayton's Cantonese was limited to the extent that he could only heard the words "forty-five" and the word "Tokwanwan".

43. D3's evidence on this incident was totally different. He said that before they set out he did not know why he was taken out or where he was going. He was not told. Chief Inspector WONG Sai-yuk led all the way. After he was taken off the car he was held by the arm on each side by two detective constables. He was in no position to move his body. The hood was placed on his head and holes were adjusted in such a way that he could not see at all. While he was on the way he stumbled quite a few times. He was held tight by the two detective constables.

44. Having regard to the inconsistent demonstration by Sergeant Kam and the facts that a very corrupt and dishonest police officer was in the leading group with D3, there is always a doubt as to who was leading whom. The arms and ammunition were put on a landing of a tenement block of buildings to which there must be very many passers-by.

45. D3 testified also that he had never been to that building before. When he arrived at the landing he was merely shown a parcel. There was evidence that the parcel was wedged between some pipings on the side of the wall on the landing. We have also referred to the judge's doubt as to the whole approach of the investigation. He was even suspicious as to the evidence of Superintendent Chan as to his investigation. In his direction to the jury the learned trial judge described as very vague the evidence of the escorting detective constable that they were led by D3 to the premises. In view of the very tenuous and weak corroborative evidence we are thrown back to the evidence of Accomplice Wong. We have already referred to the trial judge's doubt as to the approach in investigation in particular Chief Inspector WONG Sai-yuk was mainly responsible. We also expressed our doubts as to the reliability of the evidence of Accomplice Wong. Further, we learned from the Bar that relying on the evidence of Accomplice Wong D1 have been indicted for yet another count for robbery, but at the conclusion of this trial the Crown offered no evidence against D1 on the other indictment. This was confirmed by counsel appearing on behalf of the Crown in this appeal. Whether the other indictment was abandoned because of the unreliability of Accomplice Wong's evidence or because D1 had already been convicted of manslaughter is a matter of speculation. For these reasons we also entertain a lurking doubt as to the verdicts in the case of D3.

46. For these reasons we granted leave to the applicants to appeal against conviction in respect of all counts. We treat the applications as the appeals proper. We allow the appeals. The convictions of both appellants are quashed and the sentences set aside.

(1)    1978 Crim. L.R. 442

(2)    (1866) 1 Q.B. 289

(3)    (1974) 60 C.A.R. 200

(4)    1971 H.K.L.R. 48