THE QUEEN v. CHAN KWOK KEUNG AND ANOTHER

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J U D G M E N T

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Hon. Yang, C.J. :

1. The applicants having been convicted of murder by a jury before Mr. Justice^; Addison now seek leave to appeal against their conviction. The Crown's case was that at about 2.30 p.m. on the 29th August 1986, at the Yuen Chau Nok Temporary Housing Estate, Shatin, the two applicants, together with one Leung Chi-fat, who was Pill and Keung Siu-ming, whose nick-name was Ah Sai, and one other person unknown, murdered Peng Shao-chiang. PW1 was of course an accomplice.

2. There are three pieces of evidence against the applicants. Firstly, there was PW1's evidence about the killing. Secondly, there was the unchallenged evidence that the second applicant hired a car on the afternoon of the 29th of August and PW1's evidence that it was in that car that he and other assailants travelled to the scene of the killing. Thirdly, there was the agreed evidence that the applicants stowed away on a ship from Hong Kong to Macau in June 1987 - some nine months after the killing or about two and a half months after PWI and Keung had been dealt with in the High Court in respect of the same killing.

3. The trial judge in his summing-up as to this third piece of evidence directed the jury that that was the only evidence that was capable of affording corroboration of PWI, provided they were satisfied that the applicants were on the run and had a -guilty mind because of their connection with the murder.

4. The sole issue for the jury at the trial was whether upon PW1's evidence, they found it proved beyond all reasonable doubt that the applicants participated in the knife attack upon the deceased, sharing a common purpose with the others involved, that the deceased should suffer at feast grievous bodily harm. The defence was that PW1's evidence was too unreliable and unsatisfactory to found a conviction of this serious charge.

5. There are four grounds of appeal. Mr. Niamatullah fairly concedes that it is not his argument that any one of these grounds is sufficient to upset the conviction. But rather it is the accumulative effect of all these grounds that makes the conviction unsustainable.

6. The first ground deals with the evidence of the accomplice PW1. Mr. Niamatullah takes us through the evidence in some detail in an attempt to show us that PW1's evidence cannot be regarded as reliable or credible. The judge dealt with PW1's evidence in some detail in his summing-up to the jury. It being a jury matter, we are satisfied that the judge dealt with it adequately and there is nothing which has been said by Mr. Niamatuallah this morning which would lead us to think that the judge erred in any way in this respect.

7. By the second ground of appeal, Mr. Niamatullah complains that the judge in his summing up to the jury; resorted to strong comments or advocacy to bolster a weak case, and that undue emphasis was placed on the failure of the defendants to give evidence. We have considered the judge's summing-up with some care and in our view the comments he made on the evidence are moderate in the extreme, and the language he employed when commenting on the applicants failure to give evidence was reasonable. There is, therefore, in our view nothing in this ground of appeal.

8. The third ground of appeal is that the judge erred in directing the jury that the applicants' attempt to stow away on a ship to Macau was capable of corroborating PW1's evidence, particularly in the light of the passage of time which had elapsed between the killing and the attempted escape. The applicants did not give evidence. The only evidence before the jury was that an attempted escape to Macau was made by the applicants. Whilst the long passage of time mentioned by Mr. Niamatullah might perhaps weaken the evidence to a certain extent, in our view it is nevertheless capable of corroborating the accomplice's evidence. whether this evidence did in fact corroborate PW1's evidence and what weight was to be given to it was entirely a matter for the jury. We do not think there is anything in this third ground of appeal.

9. The fourth ground alleges that a question from the jury after they had retired tends to indicate that the verdicts were not entirely based on the evidence but possibly on speculation. We do not have any documentary evidence or any notes kept by the judge to indicate what actually happened, but we were informed this morning that after the jury had retired at one o'clock, the judge invited counsel for the prosecution and defence into his Chambers and told them that he had received a question from the jury as to what day of the week it was on the 29th August 1986.

10. The judge, thinking it was a trivial matter decided with the agreement of counsel not to re convene the court but to instruct the jury bailiff to inform the jury on what day of the week the 29th August 1986 had fallen. Indeed, this information could easily have been ascertained by the jury by simply referring to a pocket calendar.

11. Be that as it may, we are of the view that the course adopted by the judge was irregular. However, Mr. Niamatullah does not rely on it as being a material irregularity which would justify this court's interference. His contention is that the jury's question indicates that they engaged in speculation in arriving at their verdicts. We do not agree. In our view the question asked gives no indication as to what the jury were thinking during their deliberations. This ground of appeal is therefore also dismissed.

12. For these reasons, the applicants' applications are dismissed.