HKSAR v. SZE KWAN LUNG AND OTHERS

CACC 92/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 92 OF 2002

(ON APPEAL FROM HCCC 6/2001)

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J U D G M E N T

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Stuart-Moore VP:

Introduction

1. On 2 February 2002, following a trial before Gall J and a jury which had occupied about 68 days, the first Appellant (D1) was convicted of two counts of murder and one count of arson. The remaining Appellants (D2 to D7) were acquitted of the murders jointly alleged against them and D1 in the first two counts, but they were convicted in the alternative of manslaughter on each count. In addition, they were each convicted of the third count of arson which was also a joint allegation against them and D1.

2. Sentencing was postponed until 4 February 2002 when D1 received concurrent mandatory life sentences on counts 1 and 2 for murder. D2 to D5 all received concurrent sentences of 12 years' imprisonment on the manslaughter counts. The remaining Appellants, D6 and D7, each received concurrent sentences of 13 years' imprisonment for the offences of manslaughter. Each of the Appellants received a concurrent sentence of 5 years' imprisonment for arson.

3. The Appellants now seek leave to appeal against conviction and D2 to D7 also seek leave to appeal against sentence. Having regard to some of the grounds of appeal which have been raised, so far as conviction is concerned, we shall give leave to appeal to all of the Appellants, including D2 whose application was slightly out of time. We have treated the hearing of these applications as the hearing of the appeals.

Prosecution's case

4. The allegations against the Appellants arose from events on 2 August 2000, after a number of Mainland claimants, seeking the right to live in Hong Kong, went to Room 1301 in Immigration Tower without an appointment, apparently seeking to achieve a face-to-face meeting with the Director of Immigration. This followed a series of earlier confrontations between claimants to the right of abode and Immigration Department officers.

5. At about 3.00 pm, D1 was interviewed by immigration officers as he had been the representative of the group on previous occasions. D1 stated that he was not the group's representative this time. He was told that if the protesters did not leave they would be removed. He made a request that if action was taken to remove the protesters, he should be taken away first. He said that if this was done, the others would be more likely to leave peacefully. It seems that D1, from conversation he had with the officers, was under the impression he might soon be granted a one-way permit by Mainland authorities which would solve his problem.

6. At 4.30 pm, the group was advised that they should leave as the office was due to close. A few did so, but twenty-three were left behind. These people included the seven Appellants and fifteen others who were prosecuted in subsequent proceedings.

7. Further requests were made for the claimants to leave but these were ignored. From 4.30 pm, video cameras were used to record what occurred inside Room 1301 up to the moment when immigration officers moved into the room, at almost exactly 6.00 pm, to evict the claimants. At that moment, all the claimants, with the exception of D1, stood up. Liquid was poured from a number of the water bottles some of them were holding. Most of these bottles, as it turned out, had been used to conceal the presence of highly flammable thinners. Almost immediately, there was a fireball. One of the claimants, Lam Siu-sing (Lam), was covered in flames. This explosion of fire also caused extensive burns to Leung Kam-kwong, an officer attached to the Immigration Department. He had acted with conspicuous bravery, together with a number of others from the Department, in the face of considerable danger.

8. Leung Kam-kwong and Lam both died nine days later from the burns they had received. This was reflected in the date shown in Counts 1 and 2 of the indictment which alleged the murders of Lam and Leung Kam-kwong, respectively, as having occurred on 11 August 2002.

9. These terrible events caused many other casualties to be taken to hospital. They also left behind a very considerable amount of damage. Significantly, amongst the items left at the scene, seven plastic water bottles and five cigarette lighters were found. Only one of the plastic containers was found to contain water.

10. A Government chemist's examination revealed that traces of toluene, a major constituent in thinners, were to be found on several items taken from various parts of the room.

11. The main evidence produced by the prosecution came from the video-tapes which had captured most of the claimants' activities for the one and a half hours leading up to moment when thinners were ignited.

12. Using the material which was before the jury in the form of four video-tapes (Exhibits P. 15-18), coupled with the corresponding transcripts of what could be heard on these, several important general matters were quickly established.

13. Some of the claimants could be seen holding plastic bottles containing clear liquid. In other cases, bottles were placed near them. No one in the room was seen drinking from the bottles and no one smoked. From time to time, some of the claimants were seen twisting or touching the caps of their bottles. Both D2 and D3 were seen removing the caps to their bottles.

14. With specific reference to D1, he was seen and heard asking people to sit in such a way as to enable the females to be at the back of the room. D5, holding a bottle of liquid, moved from the back row to sit down next to D1. A bottle was passed to D4 at about this time.

15. Much of the conversation in the room was taking place in Hoklo dialect. D1 also spoke Cantonese and at one stage said to an immigration officer:

"If we are forced to leave your office, all of us will suffer great loss today."

16. D1 addressed the group of claimants in the room after this. He told them that he would telephone the police to say that almost ten people were preparing to commit suicide. He later leant against the wall, apparently seeking the group's agreement for him to be allowed to negotiate on their behalf, and mentioned that:

"... if the Commissioner does not come, something serious will happen soon."

17. After a discussion amongst the members of the group, D1 made a telephone call to the police saying that somebody was going to commit suicide at Immigration Tower. Later, a mobile telephone in the room rang. This was handed to D1 who spoke to someone he addressed as 'Ah Shing' saying, in Hoklo:

"Tell the people down there not to leave. People up here are preparing to set fire ... if no negotiation."

18. When police duly attended the scene, D1 spoke to them saying that people were prepared to pour kerosene or petrol over themselves once the immigration officers started to take action. When asked how many were saying this, D1 replied:

"forgotten... too many ... mentioning committing suicide."

19. There was a slight false alarm about five minutes before the incident reached it tragic conclusion. A number of immigration officers came into the room. Lam and D3, each holding a water bottle, stood up with D4. They sat down again when they realised they were not going to be removed.

20. About a minute before 6.00 pm, D1 moved to a seat which was closest to the door into the room. At about 6.00 pm, when the immigration officers moved in to evict the protesters, D1 was immediately taken out of the room. This was while a number of the claimants could be seen splashing liquid from their water containers.

21. Aside from the recordings of events in Room 1301, the prosecution also called evidence of words uttered by D1, between 5.30 and 5.45 pm, near the door and in the corridor just outside the room. It was not suggested that these words, which were directed at immigration officers, were audible inside the room or that they were said as any form of encouragement to the other protesters. Some examples of these utterances, heard by immigration officers at different times, were to the effect that:

"Today next year would be the anniversary of your death." ... "You people are not lucky. Today you will become roast pig." ... "Ah Sir, it's you people again. You people are unlucky, hugging together and die. Today next year will be the anniversary of the death of you people and I." ...
"You people will die for sure."

22. The prosecution put D1 forward as the group's leader who had effectively orchestrated all the events leading up to the fire at 6.00 pm, having formed an agreement with the others which was ultimately put into effect when thinner was ignited.

23. Specific evidence relating to D2's involvement at the critical moment just before the fire started, was that he had been splashing liquid around as the immigration officers came in to evict his group. He splashed liquid towards the immigration officers and onto Lam. PW22 saw Leung Kam-kwong (the deceased named in Count 2) trying to stop D2 pouring the liquid. PW20 and PW21, in evidence which was strongly disputed, attributed the start of the fire to D2. The judge advised a cautious approach should be taken to this evidence having regard to a number of inaccuracies in the testimony of both witnesses. PW23 saw D2 holding a lighter during the afternoon.

24. As to D3, he was seen to have uncapped the bottle he had been holding when he sniffed its contents at 5.30 pm. He had a lighter tucked into his waist. During the afternoon, he had been seen to flick his lighter and to stare at the flame. At the time of the confrontation at 6.00 pm, D3 randomly splashed liquid from his bottle.

25. Similarly, D4 was seen to splash liquid towards immigration officers as they moved in to evict the occupants of the room.

26. The evidence against D5, that he was holding a bottle and poured some liquid from it, was solely derived from the video-tapes.

27. D6 was seen holding a bottle as he stood up and moved across the room at the time of the confrontation at 6.00 pm.

28. D7 was seen moving from his side seat in the room towards the middle of the room carrying a bottle. He was heard to say, in Cantonese:

"Pour, light the fire."

29. Four days later, on 6 August 2000, D3 was interviewed at his request. This was video-recorded. He said that the thinner had been bought by Lam and that Lam had given him a bottle at the Immigration Department and had informed him what was in it. He said that he had twisted off the cap at about 5.00 pm and that he borrowed a lighter from someone. He stated that it had been D2 who had told them all to stand up, to hold up their bottles and to pour it over themselves. He blamed D2 for uttering threats designed to prevent any of the claimants leaving the room. During this interview, D3 gave inconsistent accounts about whether or not he had poured any liquid from his bottle giving, at different stages, both versions.

Defence evidence

30. All the Appellants, with the exception of D1 and D7, gave evidence. In general, the defence amounted to an assertion that there was no intention to hurt anyone. The Appellants had merely acted in such a way as to prevent the immigration officers from ejecting them from the room they were occupying.

31. D2 said that Lam gave him a mineral water bottle at some time after 4.00 pm. This was half-filled with thinner. Lam told him that if immigration officers tried to evict them by force, they would pour thinner onto themselves and pretend to use their lighters to frighten the officers. D2 said that he had heard, only a few days before, that Lam had pretended to drink poison when it was, in fact, only coca-cola. He believed that the thinner would not be lit because Lam did not seem to be suicidal. Furthermore, Lam had gone to the trouble of extending his recognisance only that day which would have allowed him to remain in Hong Kong for the time being. His defence, therefore, amounted to an assertion that the liquid was only to be poured in order to frighten the immigration officers away but was not to be lit. He admitted that at 6.00 pm he had poured thinner over himself. When he saw Lam holding a lighter, he asked him not to light it. As immigration officers approached Lam, he saw fire erupting from the area near Lam's stomach and he then realised that Lam had taken his own life. D2 denied holding a lighter at any stage in Room 1301.

32. D3's defence was along similar lines. He, too, said that Lam had given him a bottle containing thinner at about 4.00 pm and was told by Lam that it was to be used as a threat to stop the eviction. At first, he thought Lam was joking but when he unscrewed the cap to his bottle at about 5.00 pm he then realised that the bottle actually contained thinner. He stated that he was given a lighter but that by the time of the fire, he had given it away. When he saw Lam's body on fire, he put down his bottle and ran out of the room. He said that he had not even removed the cap from the bottle. Regarding his interview, he stated that D1 had asked him to shift the blame onto D2 by alleging that D2 had uttered threats to stop people leaving the room. He also denied having said anything in his interview which amounted to an admission that he had poured liquid from his bottle. This was, he said, a misunderstanding arising from his accent when speaking in Punti dialect.

33. D4 said that he was passed a bottle of mineral water by someone sitting in front of him. He believed it contained only water. When he uncapped the bottle, he did not notice the smell of thinner. He heard a man in the room saying that a gesture should be made of pretending to pour liquid onto themselves if an attempt was made to evict them. He denied hearing any conversation about the use of thinner or suicide. He admitted that when the immigration officers came into the room, he had removed the cap from his bottle and held it up. He was pushed forward causing him, inadvertently, to splash water from his bottle. He said that he had no control over the jet of liquid which can be seen in the video-recording coming from his bottle.

34. D5 stated that he had brought his own bottle of water to the Immigration Department. He drank from it, and by 6.00 pm it was less than half full. His group in Room 1301 had agreed to D1 acting as their negotiator. When the immigration officers came in at 6.00 pm, he merely imitated what he saw others doing, by holding up his bottle of water to frighten the officers. He was jostled and the cap fell off his bottle. He did not notice the liquid coming out of his bottle which can be seen in the video-recording.

35. Finally, D6 in his testimony described how he came into possession of a mineral water bottle by saying that it belonged to a female claimant who had been sitting to his right. When she moved to the back of the room, she left her water behind together with some biscuits. He moved over to her seat and ate some of the biscuits. He was thirsty and drank some of the water. He then replaced the bottle on a bench. He originally made out that he did not touch the bottle again but when cross-examined about this in relation to his activity recorded on video-tape at 5.54 pm, he admitted that he had "fiddled" with the bottle, but he denied removing its cap. When the immigration officers came in at 6.00 pm, he said that he moved his position in order to avoid being arrested. He took the bottle with him because it still contained some water, but the cap on the top remained in position. He said that he had not heard anyone speak about splashing liquid or about lighters and he knew of no plan to cause a fire.

The appeal

D1's murder convictions

36. It is obvious that the background to the case provided a highly unusual scenario for allegations of murder. Not only were video-cameras openly being used to record the proceedings but D1 had, by his own actions, caused police to come to the scene by threatening that others were preparing to commit suicide. The allegation in Count 1, that the Appellants had murdered Lam was particularly curious bearing in mind that he was a supporter from their group of 'right of abode' claimants. This count, alleging Lam's murder, was somewhat artificial.

37. The prosecution's ill-advised inclusion of this count may, to an extent, explain some of the difficulties faced not only by the judge in this legally complex situation but by the jury also. Almost exactly a day after they had originally retired, the jury returned to court to ask three fundamentally important questions. The first of these related to the murder counts. They requested an elaboration on the definition of murder. The definition they were given was in these terms:

"I think all I can do is (to) give the standard definition of murder once again, the unlawful killing of a person where the person who kills does so with intent to kill or to cause really serious harm. The killing can be either by an individual or by someone acting in pursuance to an agreement which has that intent and where all are agreed on the same acts." (Appeal bundle p. 70)

38. We were not persuaded by the argument advanced in ground 3 by Mr McCoy, SC, on D1's behalf, that this definition materially omitted reference to 'bodily' harm. Strictly, the definition should have done so, but in the circumstances, this was implicit. This could not, by any stretch of the imagination, have been taken, as Mr McCoy sought to argue, as a direction which left the jury with an option to convict D1 on the basis that "he intended that the acts of the others would cause really serious psychological or mental trauma, that is ... that the harm he intended could have been exclusively mental torture of the immigration officers." In any event, if the omission to refer to 'bodily' harm had been perceived to have damaged the defence in any way, we have little doubt that defence counsel, some of whom were highly experienced, would have sought a correction. None of them did so.

39. Turning to a matter of much greater significance, Mr McCoy submitted in his ninth ground of appeal that the jury's guilty verdicts on the murder counts against D1 alone were inconsistent with the prosecution's case of joint enterprise and inconsistent with the manslaughter verdicts returned against all the others with whom D1 was indicted.

40. The last part of the murder definition given to the jury on their return to court after a day's deliberations, touched upon the position of primary and secondary parties to murder. This is something to which we shall later need to return in greater detail. It suffices, at this stage to say that so far as D1 is concerned, he could only have been convicted of murder on the basis that he was a secondary party to the alleged murders. He was not a principal on the facts we have set out as he had not committed any act which caused either victim's death. For D1 to be convicted of murder, therefore, the prosecution had to prove that he had participated in a joint venture in the realisation that in the course of it the principal might use force with intent to kill or to cause grievous bodily harm, and that the principal had in fact killed with either one of such intents. This foundation is derived from the speeches in R v Powell and Anor; R v English [1999] 1 AC 1. Lord Steyn put the matter simply when, at p. 12, he said:

"There are two separate but complementary legal concepts at stake. The first is the mental element sufficient for murder, i.e an intention to kill or to cause really serious bodily injury. Only if this element is proved in respect of the primary offender, and if the other ingredients of murder are proved, does the second concept arise for consideration, viz. the criminal liability of accessories to a joint criminal enterprise. Under the accessory principle criminal liability is dependent on proof of subjective foresight on the part of a participant in the criminal enterprise that the primary offender might commit a greater offence, that being in these cases foresight that the primary offender might commit murder as defined in law." (Emphasis added)

41. In the speech of Lord Hutton, at p. 26, a passage taken from Chan Wing-siu v R [1985] AC 168 at 172 was cited with approval which related in the first instance to a submission in that case which counsel for the Crown had made:

"'Regard must be had to public policy considerations. Public policy requires that when a man lends himself to a criminal enterprise knowing it involves the possession of potentially murderous weapons which in fact are used by his partners with murderous intent, he should not escape the consequences to him of their conduct by reliance upon the nuances of prior assessment of the likelihood that such conduct will take place. In these circumstances an accomplice who knowingly takes the risk that such conduct might, or might well, take place in the course of that joint enterprise should bear the same responsibility for that conduct as those who use the weapons with the murderous intent.'

Sir Robin Cooke stated, at p. 177:

'What public policy requires was rightly identified in the submissions for the Crown. Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance upon a nuance of prior assessment, only too likely to have been optimistic.'" (Emphasis added)

42. I do not need to dwell on D1's convictions for murder. They plainly cannot stand. The jury, by their verdicts of acquittal on both counts of murder against all the remaining Appellants, clearly did not find that anyone who might have been a principal in the killings had in fact acted with the necessary intent to establish murder.

43. When the summing up in the present case is looked at, with many issues of law to be covered, it is apparent that the judge had unfortunately omitted to tell the jury that if those who played a principal role in the events were all acquitted of murder, any secondary parties to the killing would inevitably also have to be acquitted.

44. Without a specific direction to this effect, it is easy to understand why the jury convicted D1 of murder. No doubt they would have had in mind what Mr McCoy rightly described as D1's "foul-mouthed threats" towards immigration officers just outside the room. This one important factor, regarding what may have been in D1's mind when carrying out his actions, placed him, evidentially, in a different category to all his co-defendants.

45. The acquittals for murder of the other Appellants meant that D1's participation, in the form of the encouragement he may have lent by his actions and presence in the room, was limited, at most, to manslaughter on which all the others were convicted. The question in these circumstances which needs to be decided is whether manslaughter convictions should be substituted for D1's murder convictions or whether, alternatively, there should be an order that he is retried on such charges. I shall consider this in conjunction with the other grounds raised by Mr McCoy and the arguments raised in the appeals against conviction of the remaining Appellants.

Joint enterprise directions

46. Under Mr McCoy's fifth, sixth and thirteenth grounds of appeal, it was submitted that the judge had failed to direct the jury sufficiently as to "accessorial responsibility" on the part of D1.

47. It has been accepted in these proceedings that the trial judge's handling of the trial personified fairness throughout. The complaint in these grounds is that, inadvertently, the jury were never properly directed as to precisely what the prosecution had to prove in order to establish the role of D1 as an accessory, or secondary party, to these killings. Mr McCoy's argument was that if the jury had been considering manslaughter by an unlawful and dangerous act on the part of D1, as they should have been following their decision to acquit the principals in these killings of murder, the jury needed to have proper directions given to them as to what must be proved against D1 to make him an accessory to either or both of the killings.

48. It is perhaps helpful to set out at this stage what the summing up should have made clear to the jury was the focus of their concern on the manslaughter alternatives. This required a direction to the effect that if D2 (and/or others) unlawfully carried out the dangerous acts which killed the victims, but without the intent required for murder, then D2 (and/or others) would be guilty of manslaughter in each case. A direction along normal lines defining manslaughter would have to be provided followed by a direction to the effect that if one or more of the claimants in Room 1301 was found guilty of manslaughter, D1 (and/or others) would also be guilty of manslaughter if he intentionally encouraged one or more of the others to carry out the act which led to the deaths of the victims.

49. The directions on joint enterprise which the judge gave in his summing up were in these terms:

"The essence of joint responsibility for a criminal offence is that each accused shared a common intention to commit the offence at the time it was committed, and he played his part (how)ever great or small so as to achieve the commission of that offence.

Your approach to the case should therefore be, if, looking at the case of any accused, you are sure he committed the offence on his own, because although Mr Luk has pitched the case as a joint enterprise, it could be that some individuals were acting on their own account. If you are sure that, looking at the case of any accused, he committed the offence on his own or he did an act or acts as part of a joint plan or agreement with others to commit it, he is guilty.

The question for you really is, at the time the offence was committed, were they in it together, and was what happened what they intended to happen?" (Appeal bundle p.14)

50. After this, the jury was given an example of "unforeseen consequences" arising in the course of an incident enabling the judge to make the point that:

"... when an offence is committed, to be guilty of the crime on the basis of joint enterprise, the accused each have to share a common intention to commit that offence." (Appeal bundle p. 15)

51. Later in the summing up, the judge went on to make general references to the prosecution's allegation as a joint "plan" or "agreement". When D1's case was given specific attention in the summing up, the judge had the following to say:

"It is clear that the 1st accused did not personally injure anyone. He had no bottle of liquid at the time when action was taken to evict those in the room. He did nothing and remained seated on a bench waiting to be the first removed, which he was. At no time, he uttered no words of instruction, advice, or encouragement to the others. He took no physical part in the resistance to eviction. If the 1st accused is to be found guilty of any of the offences on the indictment, it can only be because he was part of an agreement to commit those offences. You would have to find firstly that a joint enterprise existed and that at the time the (fire) started, he was a party to that agreement and that the actions taken were in accordance with what he agreed.

You have no direct evidence as to what was in the mind of the 1st accused that afternoon, so you will have to examine carefully all you see him say and do on the tapes and consider what other accused who gave evidence about his role that day had to say about his actions. From all that evidence, you will have to determine what inferences you are prepared to draw." (Appeal bundle p. 26)

52. Mr McCoy accepted that for people to have thinners in open bottles in circumstances such as those which prevailed at the scene was a foolhardy thing to do but, for D1 to be convicted of manslaughter, it had to be proved that he was a party to an act which encouraged the ignition of the thinners. He argued that as it was plain that D1 had not committed any act or acts as part of a joint plan or agreement with others towards igniting the thinners, the judge needed to specify on what basis D1 could be found guilty, yet nowhere did he do so. Mr McCoy submitted that when, at one point in the summing up, the judge said to the jury: "Was what happened what they intended to happen?", the judge had perhaps left the jury with the impression that proof of "intent" was a sufficient basis on which to convict D1.

53. As to this aspect, the judge went on to rehearse with the jury the evidence they had heard about D1's utterances to immigration officers in the corridor outside the room and what he could be heard on the video-tapes to have said inside the room. The jury were also reminded of something which Mr McNamara had said in his speech, on D1's behalf, to the effect that D1's actions in the room might have been designed either to act as a warning to the authorities or as a means of keeping up the spirits of the claimants, or both.

54. D1's actions in this context included organising the women in the room to sit at the back and the men to sit towards the front. So far as his spoken words were concerned, the judge said that these might suggest:

"... that the 1st accused knew at the very least ... of a plan among those present in the room to set themselves on fire if an attempt was made to evict them." (Appeal bundle p. 30)

55. Pausing there, Mr McCoy suggested that by giving this direction, the jury may have been left with the impression that a plan by the claimants to set themselves on fire amounted to evidence of a joint enterprise. In the light of the judge's directions which followed, I do not, with respect, consider this submission to be right. The judge went on to say, with specific reference to D1's case:

"Much (h)as been (said) whether the 1st accused was the leader of the group. I do not think it really matters. What you have to do in respect of the 1st accused is draw what inferences you can properly draw given the manner that I have told you must approach him, for instance, to ascertain what was the intention of the 1st accused. It does not matter if it was he a leader; it does not matter if he was one of the group. What matters is what he intended and what he agreed, if he did agree with others should happen." (Appeal bundle p. 31)

56. After this, the jury were given further directions of relevance to murder before the judge said:

"It is a fact that fire did occur in circumstances similar to those threatened by the 1st accused. You may feel that the evidence on the tape, that at the false alarm stage, several people then stood, then sat, with the 2nd accused waving them to sit, and later after the removal began, the men formed a group from the front of the front bench by the reception counter to the third bench, and faced the immigration officers indicates some group action. If so, it would be open to you to infer if it were the only reasonable inference, that the action of this group was fulfilment of a plan to which the 1st accused was a party." (Appeal bundle p. 32)

57. A little later, the judge directed the jury in the following terms:

"If, however, you are sure that the 1st accused had the necessary intent to murder, as I have set it out, and you are sure he was acting in concert with others, and you are sure that Lam did not commit suicide, then the 1st accused would be guilty of the murder of Lam even if he did not specifically intend to kill him." (Emphasis added) (Appeal bundle pp. 32-33)

58. After this, the judge gave further directions related to murder before stating that it was a matter for the jury to decide:

"... having viewed the tapes, and having heard the evidence of those accused who spoke of Lam's intent, to decide whether he could have been killed by his own hand or whether you are sure his death was a result of a plan to kill or seriously harm others which also killed him. You only have to think it is possible that he might have killed himself for you to have a doubt. In order for anyone to be guilty of his murder, ...... the prosecution would have had to make you sure that he did not kill himself." (Appeal bundle p. 33)

59. Turning later to the alternatives of manslaughter on Counts 1 and 2, the judge said:

"Where a person commits an unlawful act without the intent to kill or seriously harm someone, but death does result from that unlawful act, he is guilty of manslaughter. If, in respect of the 1st count, you are sure that Lam did not kill himself - you are sure that it was not suicide - as an independent act, not being part of any agreement, but if you are sure that (t)here was an agreement that flammable liquid be spilt and then lit, but there was no intention in that agreement to kill or cause serious harm to any person in that room, then those who were party to that agreement would be guilty of manslaughter and not murder.

I will be going over the same ground with each of the accused so it will, I hope, become clear. So if you are sure the 1st accused intended that flammable liquid be (spilt) and lit and agreed with others that it be done, but did not intend or may not have intended that death or really serious injury be caused, and you are sure Lam did not act on his own in taking his life, then the 1st accused would be guilty of manslaughter in respect of the 1st count.

Similarly in respect of Count 2, if you are sure that the 1st accused was a party to an agreement to set fire in the room, to spill flammable liquid but did not intend or may not have intended anyone to be killed or really seriously injured but that Mr Leung died as a result of that unlawful act, then the 1st accused would be guilty of manslaughter. The third scenario is this: if the 1st accused was party to an agreement to only spill the liquid and not set fire to it or to wave bottles and not spill the liquid, in other words to frighten the immigration officers with those actions with no intent that anyone be killed or really seriously injured, then he is not guilty of anything in respect of the 1st and 2nd counts.

The reason for that is that if the agreement only went to the holding-up of bottles or spilling of liquid without the liquid being lit, or that may have been the case, then the deaths were not caused by that agreement. And if that was the agreement to which the 1st accused was party, then the lighting of the liquid was outside his contemplation and not part of what he had agreed. It was then done by others, or another outside what his intention was and he has no part of it.

So there are the three scenarios assuming that you are sure that Lam did not commit suicide. In respect of the 1st and 2nd count(s), if you are sure that the 1st accused intended that people be killed or seriously injured by the spilling and lighting of flammable liquid in that room, and the deaths resulted from it - if you are sure of all of that, that he acted in concert with others with the same intent to achieve that result, then he would be guilty of murder.

If you are not sure that he had the intent but you are sure that he was part of an agreement that the flammable liquid be spilled and lit, which was an unlawful act, and Mr Lam and Mr Leung died as a result, then he would be guilty of manslaughter. If he had no intent to be party to an agreement that the liquid be lit and no intention, or may have had no intention, or you cannot be sure that he had an intention that they kill or cause really serious harm, then he will be acquitted of both counts." (Appeal bundle pp. 34-36) (Emphasis added)

60. Taking the numerous factors to which the judge had referred into account it was, in my opinion, abundantly plain that, whilst there were many references to "an agreement that flammable liquid be spilt and then lit" which read as if 'conspiracy' had been charged, the jury was being invited to decide whether D1 had in fact acted, by his words and his deeds, as a participant in the common design to ignite thinners in the event that immigration officers tried to evict them. Specifically, the judge had stated in the passage we have just cited that if D1's agreement only extended as far as the others holding up their bottles or emptying the liquid "without the liquid being lit", or that it may have done, D1 was entitled to be acquitted. He could only be convicted if he had, as the judge twice stated, acted "in concert" with the others. This was repeated a third time at the end of the summing up when the judge, with reference to each and every one of the Appellants said:

"You would have to be sure that he acted alone or in concert with others with the same agreement and the same intent to splash out liquid and set fire to it." (Appeal bundle p. 63)

61. Mr Lawrence Lok, SC, on behalf of all the remaining Appellants, did not advance any of the grounds with which I have just dealt. This was doubtless because the judge went on to repeat, in each Appellant's case and on each count, directions on joint enterprise using a formula which was more or less the same for each Appellant on each count of homicide. These directions were helpfully coupled with the specific evidence against each of them and the salient points in their favour. In the case of each Appellant, on each count, the jury were directed to consider 'intent' judged by the actions of the individual they were considering, and to consider manslaughter in the event that a murderous intent had not been proved. Similarly, the jury were directed many times that the prosecution had to make them sure that Lam did not die by "his own hand", in which event all the Appellants were entitled to be acquitted.

62. The repetition of these directions was coupled with a direction in the form of a reminder of something, according to the judge, the jury had "been told", (presumably by counsel in their speeches), that the "mere presence of any of the accused is not enough" (Appeal bundle p. 53). It is true that the judge at no stage said that if D1's participation in the offences was to be established, the prosecution had to prove that his presence and/or actions were intended to lend encouragement to the common design. In all, however, the jury could not have been left in any doubt as against D1, or any other Appellant for that matter, that the prosecution had to prove against all of them, on the alternative counts of manslaughter, a joint enterprise or common design, judged by their actions and words, that thinners were to be spilt and ignited if an attempt was made to evict the protesters.

63. Accordingly, these grounds fail.

May Lam's death have been suicide?

64. Whilst the verdicts clearly demonstrated that the jury were satisfied that Lam had not committed suicide, the next consideration was whether the jury were entitled to have concluded that Lam's death was not an act of suicide.

65. In the seventh, eighth and twelfth grounds of appeal, Mr McCoy submitted that the jury's verdicts were against the weight of the evidence in that there was a "real possibility" that Lam's death was suicide. If so, on the directions given by the judge, this ought to have ruled out guilty verdicts on any of the counts on the indictment including arson. Mr McCoy further contended that a direction given to the jury, to the effect that if D1 knew of a "plan by the protesters to set themselves on fire", might have seemed to the jury to have been sufficient to establish joint enterprise when, at most, it was evidence of complicity in another's suicide. In this regard, it was submitted that the judge had erred by omitting to leave the crime of complicity in another's suicide as an alternative to the homicide charges which he would have been entitled to do under the provisions of section 33B of the Offences against the Person Ordinance, Cap. 212.

66. The specific criticism that the judge may have allowed the jury to think that joint enterprise was established if D1 simply knew of a plan by one or more of the right of abode claimants to set themselves on fire was directed at a stage in the summing up where the judge had been drawing together the various strands of evidence in D1's case. In particular, he had taken the jury through the snatches of conversation directed by D1 towards immigration officers in the corridor outside Room 1301. The judge then reminded the jury of other conversation which had occurred inside the room. Amongst these "snippets", as the judge referred to them, D1 had been heard to speak on the telephone to someone he called 'Ah Shing', saying: "people up here fight at the expense of their lives. People down there leave." Then referring to 'item' points of reference in the tape transcripts, the judge went on to say:

"At item 73, less than two minutes after this conversation, immigration officer Ho Wai-leung, who did not give evidence, asked those in the room to leave as working hours were over. And the response of the 1st accused is at item 74 when he said to Ho, 'Ah Sir, I tell you, if we are forced to leave your office, all of us will suffer a very great loss today.' This is followed at item 75 by the 1st accused saying, 'It's best for Ah Sir to make time to meet your boss down here.' Four minutes later at item 98, the 1st accused proposes to the assembled the company that he telephone the police and say, 'Almost 10 people are preparing to commit suicide.'

At item 105, the 1st accused says this: 'Do you people agree to let me start preparing to negotiate with him, to mention that if the Commissioner does not come, something will happen?' All that is said by the 1st accused must be considered in the light of the contention by Mr McNamara that the 1st accused was, at times, either warning the authorities, making insulting or tactless remarks, or keeping up the spirits of those who sought a decision by the Immigration Department by thinking of strategies to keep pressure on the authorities. Even bearing those arguments in mind, you might find it hard to see that this last item which does not suggest something serious might happen but that it will happen if the Commissioner does not come that can fall within those arguments.

The next item is at 135 and it is the 999 call by the 1st accused to the police claiming that somebody is going to die by suicide. At item 182, the 1st accused speaks again to Ah Shing below and, in part, uses the words, 'Tell the people down below there, people up here are preparing to set fire. Tell the people down below not to leave. If no negotiation, fine. That's it. Fine, fine. That's it.' That conversation is in Hoklo and not for the ears of the immigration officers.

Eleven seconds later, a uniformed police officer arrives to answer the 999 call. The 1st accused identifies him to the caller and is asked by the officer, 'How's the situation?' The answer by the 1st accused is, 'How's the situation?' People of the Immigration Department arrest our friends. My friends said they're ready to pour it over their bodies and set fire to themselves to commit suicide, once people start to take action.' By this point, if you accept the evidence, regardless of the motive of the 1st accused, he has stated that immigration officers will die that day; he has organised all the women into a section of the room that was less affected by fire; he has claimed those in Room 1301 are fighting for their lives; he has proposed to those present he should tell the authorities that if the Commissioner does not come, something serious would happen; told the police someone will commit suicide; told Ah Shing in Hoklo that the people up there were preparing to set fire and if no negotiation, 'Fine, that's it'; and then tells the officer if the immigration authorities try to arrest those present, they will pour it over their bodies and set fire to themselves." (Appeal bundle pp. 29-30)

67. Then, in the passage containing the direction which was criticised, the judge continued:

"These words may suggest, you (may) think, that the 1st accused knew at the very least, knew of a plan among those present in the room to set themselves on fire if an attempt was made to evict them. The conversations in the room to those present in Hoklo and in the telephone calls to Ah Shing, also in Hoklo, contain no condemnation of that course of action. The 1st accused does not urge them not to take that course of action. Indeed it may appear to you to be his suggestion that the authorities be threatened with the words that if the Commissioner does not come, something serious will happen." (Appeal bundle pp. 30-31)

68. The judge's comment as to what these passages might "at the very least" suggest was a statement of the most obvious kind. However, as I have already indicated when dealing with the joint enterprise directions considered in previous appeal grounds, the judge had repeatedly made it clear to the jury that if Lam committed suicide or may have done so, D1 and all his co-defendants should be acquitted of both homicide alternatives. It could be said that this direction was more beneficial to the defence than it should have been as the further alternative suggested by Mr McCoy was never left to them to consider. There had been some evidence that suicide was possibly within the contemplation of the claimants in Room 1301 but, realistically, the jury had to decide on this issue whether the threat of suicide was merely being used, as the prosecution suggested, to keep the immigration officers at bay by frightening them into leaving the protesters alone. None of the Appellants had put forward a defence of complicity in suicide and it follows that none of them could conceivably have been prejudiced by the absence of a direction that they could convict of such an offence as an alternative to manslaughter.

69. One possibility which the jury no doubt considered was that the Appellants had misjudged the volatility of thinners when, in a split-second, the fire enveloped Lam. In any event, the issue relating to a possible act of suicide was left to the jury to decide. If the jury had taken the view that this tragedy had resulted from an act of suicide, all the Appellants would have been acquitted. I do not consider that the jury's rejection of Lam's death as an act of suicide was against the weight of the evidence.

Manslaughter directions

70. Ground 1 was not pursued by Mr McCoy. The fourth of his grounds, in relation to the direction on intent, I have not had to consider in the light of my conclusion that the murder convictions must be quashed. If I had needed to consider this ground, I would not have found that it lent weight to this appeal.

71. The grounds which remain for consideration were advanced on behalf of all the Appellants. Mr McCoy submitted in his eleventh ground of appeal that the directions given to the jury were erroneous in that they did not deal with the requirement on the part of the prosecution to prove that the act leading to the death of the victims was intentional and either that it was, when viewed "subjectively or objectively", a dangerous act or an act which carried with it an appreciable risk of serious injury. Mr Lok's submission, under his first ground, made more or less the same points. This was confined to a criticism of the direction given to the jury when they returned on the second day of their deliberations to ask the judge to "elaborate" on the definition of manslaughter.

72. The direction which is usually given to a jury, in trials where manslaughter by an unlawful act has to be considered, is set out in the 'Specimen Directions' issued by the Judicial Studies Board.

73. In effect, a jury needs to be directed in cases of this kind that a killing will amount to manslaughter if it is the result of an unlawful act by a defendant where the unlawful act is one which all sober and reasonable people would inevitably realise must subject the victim to the risk of some harm, albeit not serious, whether the defendant realised this or not. The direction should continue, adopting the wording in the Specimen Directions:

"The burden of establishing manslaughter on this basis is, [once again and as always], on the prosecution. You may not convict the defendant of manslaughter on this basis unless you are sure:

1. that the defendant committed an act which caused the victim's death;

2. that the act was intentional;

3. that the act was unlawful; and

4. that the act was one which all sober and reasonable people would realise must subject the victim to the risk of some harm."

74. This direction applies, of course, to a principal in manslaughter who is responsible for the act of killing. Other directions, with which I have already dealt, need to be given to cover accessories to the offence where joint enterprise is alleged. When dealing earlier with joint enterprise, I set out in full the judge's directions on manslaughter which included the following:

"Where a person commits an unlawful act without the intent to kill or seriously harm someone, but death does result from that unlawful act, he is guilty of manslaughter......if you are sure that (t)here was an agreement that flammable liquid be spilt and then lit, but there was no intention in that agreement to kill or cause serious harm to any person in that room, then those who were party to that agreement would be guilty of manslaughter and not murder." (Appeal Bundle p. 34)

75. When the jury returned on 2 February 2002 requesting an elaboration on the definition of manslaughter, the judge gave the following direction to the jury:

"Manslaughter is where a person is killed in the course of an unlawful act being committed by the person who causes the death, and it is not proved that the person who kills intended to kill or cause really serious harm." (Appeal bundle p. 71)

76. It can readily be seen from the two definitions which the jury had been given that the 'Specimen Directions' for manslaughter by an unlawful act had not been followed. In particular, the jury were not told, in terms, that they had to be sure that the unlawful act had been committed "intentionally" or that the unlawful act was one which "all sober and reasonable people would realise must subject the victim to some harm".

77. This oversight on the judge's part was unfortunate but not necessarily fatal. The question which needs to be asked is whether, in the circumstances of this case, these were material omissions. Throughout the summing up, the judge had emphasised in D1's case that the prosecution had to prove that the group's actions amounted to the "fulfilment of a plan to which (D1) was a party" and that D1 was "acting in concert with others." These and other references were to the prosecution's central allegation that a flammable liquid was intended to be "spilt and lit".

78. Similar directions were given in respect of the other Appellants. It was plainly implicit in these directions that the act had not only to be unlawful but also intentional.

79. The same rather obvious point can be made about the complaint that the judge failed to direct the jury that the prosecution needed to prove not merely an unlawful act but one which all sober and reasonable people would realise must subject the victim to the risk of some harm. In my view, there can be few cases in which injury would so obviously flow from an unlawful act as from the facts disclosed in the present case. Several bottles containing thinners were being held up and spilled over people, and the ignition of that liquid could only realistically have led to harm being caused to others. For those Appellants (D4 to D7) against whom there was no conclusive evidence that they held bottles containing thinner, some of whose cases had been that liquid only came accidentally from the bottles they carried, the judge gave specific directions to take these issues into account.

80. The judge gave careful and individual attention to each of the Appellants when dealing with the salient points raised by them in their defence. In every case it was emphasised that the jury had to be sure that Lam was not killed "by his own hand" or "did not kill himself". Equally, in every case, the judge directed the jury that if they were not sure the defendant whose case they were considering had done the unlawful act himself or had been a party to it, they should acquit. Specifically, for each of the Appellants who had been identified as having held a bottle in the events at about 6.00 pm, the jury received a direction in more or less identical terms to this effect:

"If (the accused) intended or could have intended or might have intended to do no more than intimidate the officers and had, or may have had no intention that a fire be started, then you will acquit......" (Appeal Bundle p. 40)

81. The judge reminded the jury that only in the cases of D2 and D3, apart from Lam, had there been direct evidence of anyone in the group possessing thinners. In the cases of D4, D5 and D6, each of them had said that they believed they had been holding a bottle which contained water. This evidence was summarised by the judge. D7, who did not testify, stood in a slightly special category in that not only was he holding a bottle as everyone, except D1, stood up when the immigration officers moved in to eject them from the room, but there was also the evidence that he had uttered the words: "Pour and light the fire." However, these words were not heard by PW3 who had been in a good position to have heard them, assuming they were said. Again, all these matters were fully and fairly summarised by the judge.

82. In all the circumstances, it is plain that whilst the judge's directions on manslaughter should have included precise words to indicate that the unlawful act had to be intentional and that it carried with it an appreciable risk, when viewed objectively, of harm being caused, these missing directions were implicit in everything which the judge had said. Accordingly, the omission was not, in my view, one which amounted to a material irregularity.

Inaccuracies in video-tape transcripts

83. The next grounds, the tenth and second, put forward by Mr McCoy and Mr Lok respectively, related to the video-tapes recorded in Room 1301 and to the transcripts of what could be heard on these. It was submitted that as a result of the enhanced quality of the audio recordings subsequently achieved on digitalised video discs (DVDs), which were made during the course of a later trial involving the remaining fifteen protesters taken from Room 1301 on two charges of manslaughter and one charge of arson, additional words could be ascertained to those which could be heard on the inferior video-tapes. These, it was asserted, revealed material inaccuracies and omissions, exculpatory in nature, when compared to the evidence before the jury. It was submitted that if the jury in the present case had been able to consider the material now available, this may have led them to a different conclusion about the Appellants' activities and their intentions.

84. At the outset of these proceedings, we granted an application, which was unopposed, to introduce revised transcripts as further evidence under the terms of section 83V(2) of the Criminal Procedure Ordinance, Cap. 221.

85. The two issues of concern, when looking to see whether important evidence was denied to the jury were, firstly, the alleged intention of the participants that thinners would be ignited and, secondly, the extent to which suicide may have been contemplated. Both topics were before the jury but the question for us has been whether the new material might have made any real difference to the evidence upon which the jury were asked to rely in the court below.

86. Mr Lok concentrated in his written submission upon just one additional reference in the transcript (at p. 1130 in Exhibit CK-2a) which was admitted as fresh evidence. In the moments before the fire started, this transcript shows the following passages, spoken in Hoklo dialect and timed at about 5.56 pm, which did not appear in the version before the jury:

"(Voice of an unknown male):	'Get the lighter, do not ignite'.
(Voice of an unknown male):	'Lighter'.
(Voice of an unknown male):	'Just hold it and it will be alright, do not ignite, open the cap, let the smell spread out...'
(Voice of an unknown male):	'Pour it out, do not ignite, let the smell spread out'.
(Voice of an unknown female):	'We should not take action first, open the cap.'
(Voice of an unknown male):	'Pour it out, do not ignite it ... don't ignite it yet... let the smell spread out.'"

87. Similar words were to be found on a DVD recording of earlier events where, at about 5.29 pm (Exhibit CK-3a p. 1167), the fresh evidence showed an unknown male's voice as saying:

"No need to ignite, pour out but do not ignite, no ignition needed."

This was followed by an unknown female's voice saying:

"We should not take action first."

After that, there were other unknown male voices saying:

"Open the cap, let the smell spread out..." and "we just want to commit suicide".

88. However mixed in with these words, on the most recent transcripts, were words to the same effect, insofar as there was no need to set light, uttered by unknown males which were picked up from the video recordings on the original transcripts (Exhibit CK-3a p. 1167) including:

"No need to light ...... Mind your words ... Well that's criminal intimidation."

89. On the closely related issue of suicide, there were various references in the newly prepared transcripts which had not appeared in the original transcripts before the jury. However, these references also added very little to the material already before the jury as the threat of suicide had been recorded on the video tapes on a number of occasions. Mr McCoy referred to five passages in the recently amended transcripts between approximately 4.40 and 5.29 pm. The words, spoken by unknown persons in the room, were in these terms:

"(4.40 pm):	...if splash, splash more...
	I prepared to bring the thinner for the purpose of being dead...
	Bringing the thinner ready to die...
(4.46 pm):	This guy deserves more to die...
	Shouldn't splash it on them? Don't splash it on him...don't splash it on him, should I splash it on myself?...
(4.49 pm):	Someone is going to commit suicide...Cops dare not do anything...
(4.51 pm):	Someone might commit suicide...committing suicide, where?...Here?...Here...Possibly, someone wants to commit suicide here...Possibly...Well, possibly, I let you know in advance..."

90. There then followed the passage at 5.29 pm with which I have already dealt in paragraph 87 above.

91. The jury were aware from the telephone call to the authorities which D1 had made at about 4.55 pm that the possibility of suicide had been mentioned. Afterwards, at 5.05 pm, when apparently addressing a police officer in uniform, D1 said:

"If people of the Immigration Department arrest them, they will then set fire." (Exhibit CK-1a, p. 1101)

92. A male responded:

"That is to say if somebody...arrest the people inside, they will pour kerosene and set fire to commit suicide, is that correct(?)"

93. There were other references to suicide with which I have already dealt.

94. It is apparent that the jury were fully aware of these issues and, in my view, the additional passages did not add materially to any of the matters already before them. These grounds, therefore, fail.

Burden of proof direction

95. Mr McCoy's second ground of appeal, echoed in Mr Lok's third ground, complained that the judge had "erred in law by directing the jury that only evidence from an accused which the jury is 'sure is true' may be taken into account by it in deciding whether the prosecution case has been weakened or undermined by that defence evidence".

96. The passage which is criticized appeared early in the summing up where the judge was dealing with the burden of proof. He said:

"Now, to put that in context I come to the two most important matters that you have to have in mind. Counsel have mentioned it. The first is the burden of proof. Whose job is it? Whose task is it to prove the guilt of the accused? Well, that task lies with the prosecution Mr Luk, Mr Sham and Miss Lai. They have made on behalf of the government in this court the allegations against the accused that they have committed offences. It is for them to prove it by the evidence if they are to obtain a conviction.

An accused has to prove nothing. Any accused who gives evidence is not proving his innocence. What he is doing is providing you with information which, when you look at it and then look at the prosecution evidence, without comparing them but looking at what you are sure is true, might assist you in finding doubts in the prosecution case. He is not proving his innocence. He is pointing to flaws in what the prosecution produces. So the burden of proof lies at all times, even where an accused gives evidence, on the prosecution." (Appeal bundle p. 5)

97. This passage was, as Mr Arthur Luk, SC, on the Respondent's behalf, understandably described it, "unhappily worded", and it once again demonstrates the considerable danger inherent in the abandonment of a time-honoured direction in favour of a self-made formula which, although designed to be helpful, is less than clear. Save where an issue arises on which the defence shoulders the burden of proof, when a special direction will be required, juries have traditionally been directed as to the burden of proof in words to the effect that:-

"It is for the prosecution to prove that the defendant is guilty. The defendant does not have to prove his innocence. In a criminal trial, the burden of proving the defendant's guilt is always on the prosecution. There is no burden on the defendant to prove his innocence."

98. Mr McCoy described the judge's direction on the burden of proof in the present case as "intrinsically confusing and uncertain". Whilst D1 did not give evidence, Mr McCoy asserted that such a direction might have affected the jury's approach to evidence favourable to D1 given by other co-defendants. In particular, he criticized the sentence, taken from the passage we have cited:

"What (the defendant) is doing is providing you with information which, when you look at it and then look at the prosecution evidence, without comparing them but looking at what you are sure is true, might assist you in finding doubts in the prosecution case."

99. Mr McCoy stated that this unambiguously proclaimed to the jury the precise opposite of what was contained in the remainder of the direction on the burden of proof, particularly the phrase, relating to defence evidence, "what you are sure is true" which the jury could take into account when identifying "doubts in the prosecution case". He contended, therefore, that the jury would have been left with an overriding impression that only defence evidence which the jury were sure was true, would assist in pointing to weaknesses in the prosecution's case. He also referred to the judge's description of the defence evidence as "information" as having denigrated its status.

100. I have considerable doubt that a jury, hearing the passage about which particular complaint is made, would have understood what the judge was saying. If they did so, I think it is just as likely, if not more so, that the impression created in their minds would have been that the jury could look at the defence evidence as information which might assist them in finding doubts in the prosecution's case when looking at what they were sure was true in the case presented by the prosecution.

101. Whatever the case may be, Mr Luk pointed out that there was effectively nothing in the evidence given by any of the co-defendants which directly assisted D1. Furthermore, he submitted, that it must have been plain to the jury, that no defendant had to prove anything when the judge had immediately followed the direction which is criticized by saying that this burden "at all times" lay on the prosecution. Mr Luk submitted that the judge's meaning was clearly enough intended to convey the message that a defendant does not have to prove his innocence or, indeed, anything at all.

102. Despite my acceptance of counsel's criticism that these directions were somewhat muddled, I have concluded that they were not so unclear as to have amounted to a misdirection. Throughout the summing up, the judge repeatedly reminded the jury where the burden of proof lay. The jury, by the end, could not have laboured under any misapprehension.

103. I would, however, in the light of what has occurred in this case, wish, with respect, to remind those who are tasked with the responsibility of summing up to a jury, to have resort to the 'Specimen Directions' which have been specifically designed to deal with issues of law which are likely to arise in most criminal trials. Although many of the directions given to a jury will need to be adapted to the circumstances of the case being tried, the directions on the burden and standard of proof are intended to be, in view of their obvious importance, extremely straightforward and easy to understand. They do not usually require any adaptation or further amplification.

104. Mr Lok did not attach weight to this ground of appeal, describing its terms as "not fatal but unhappily phrased". However, it was a concern that whilst the summing up, taken as a whole, unmistakably reminded the jury where the burden of proof lay, there was a particular difficulty in respect of D3 which, although it was not specifically argued by Mr Lok, was directly related to this issue.

105. D3 had, as I have already said, made a statement to police at his own request. The judge directed the jury about their approach to the statement saying:

"But the statement itself is a matter which you have to consider. Your approach to the statement should firstly be to decide what of it is true from all you have heard of its making. Secondly, to determine to what use you can put, if any, what you find to be true in the statement. Now, let me emphasise and it is particularly important anything that you use this statement for, you can only use in respect of the 3rd accused. The reason for that is that none of the other accused were present when it was made and they were not in a position to test it by cross-examination. It is evidence for and against the 3rd accused and the 3rd accused only. Nothing can be used in any fashion in respect of any other accused.

What the 3rd accused said about other accused when he gave evidence is, of course, evidence that can be used because it was given in their presence and they could cross-examine on it. But the statement is not in that position and is evidence exclusively in the case of the 3rd accused.

Much of the statement, other than two matters, the 3rd accused accepts in his evidence." (Appeal bundle pp. 41-42)

106. I can leave aside the judge's misdirection that D3's statement could only be used for or against him when plainly he had adopted most of it in his evidence. This caused no one any prejudice and, no doubt for this reason, it is not the subject of any complaint.

107. The judge then went on to deal in detail with the two disputed issues which arose on D3's evidence when compared to his statement.

108. Later the judge went on to direct the jury that:

"What you do is, having decided what of the statement you can accept as true, you discard anything you are not sure about. Anything in the statement you are not sure is true, throw it away. It is out of your consideration. You then use what you are sure is true in your deliberations." (Appeal bundle p. 43)

109. After this, the jury were reminded of various pieces of evidence concerning D3 before the judge said:

"What conclusion you reach as to what facts are true and what inferences you draw, are for you. The 3rd accused said he had no intent to pour the liquid or have it set alight. He said PW6 is mistaken or wrong and that, far from splashing out the liquid, he placed the bottle on the ground and left." (Appeal bundle p. 45)

110. These directions could well, in my opinion, have given the jury the impression that they had to decide which of D3's answers given at his interview were true before utilising any of the answers in his favour. The judge omitted to use the formula which is usually given in such circumstances that the jury could use such answers in his favour that were or may have been true. However, the judge's directions about how D3's statement should be approached have to be viewed also in the context of other directions given in D3's case. The judge summarized the salient parts of the prosecution and defence evidence relating to him and reminded the jury about the alternative verdicts open to them together with what had to be proved if they were to find him guilty of either murder or manslaughter. As to Counts 1 and 2, the jury was separately reminded that they had to be sure about the ingredients of the offences which the prosecution had set out to prove and that, in the final analysis, D3 should be acquitted:

"If the 3rd accused intended or might have intended to do no more than intimidate the officers by waving a bottle and had, or may have had, no intention that a fire be started..." (Appeal bundle pp. 45-46)

111. I am satisfied that, taken in overall context, the burden of proof in D3's case would have been properly understood by the jury.

112. These grounds, therefore, fail.

Arson

113. Although Mr McCoy submitted in his thirteenth ground that there was insufficient evidence against D1 of joint enterprise to convict him even of arson, I do not consider that this was a well-founded submission having regard to my earlier conclusions on this ground regarding joint enterprise.

Conclusion

114. In the case of D1, for the reasons I have given, I am satisfied that his convictions for murder on Counts 1 and 2 cannot stand. However, contrary to Mr McCoy's invitation to this court to have the case sent back for re-trial on the charges of manslaughter, it appears to me that the jury must have been satisfied of facts which proved D1 guilty of manslaughter and, accordingly, pursuant to the provisions of section 83A of the Criminal Procedure Ordinance, Cap. 221, I consider that there should be a substitution, for the verdicts found by the jury, of verdicts of guilty of manslaughter on Counts 1 and 2.

115. In my opinion, the appeals by the remaining Appellants against their convictions for the two counts of manslaughter should be dismissed.

116. I consider, also, that the appeals by all the Appellants against conviction on Count 3, arson, should be dismissed.

Hon Stock JA:

117. I have had the advantage of reading in draft the judgments of Stuart-Moore VP and Yeung JA. Whilst I agree with them that all applicants should be given leave to appeal against their convictions, and that the murder convictions in D1's case must be quashed, I respectfully otherwise disagree with them as to the proper disposition of these appeals.

118. I would allow the appeals of all the appellants upon each count of the indictment upon which they were convicted. I would not substitute verdicts of manslaughter in the case of D1. I would in respect of each appellant quash his convictions, and order each appellant (including D1) to be retried for manslaughter in relation to the deaths of Lam and Leung, and for arson.

D1 and the murder convictions

119. I agree that the murder convictions of D1 cannot stand, but I must add to and comment upon the reasoning already provided in that particular regard, for these additional comments are relevant to other aspects of this appeal which I shall later address.

120. It is said at [37] above that it was the prosecution's ill-advised inclusion of a count of murder which may explain the difficulties faced by the judge and the jury - ill-advised particularly, it is said, because it was odd to have postulated the murder of Lam who was himself a party to the right of abode protests and on the side of the applicants. I do not think that this is an accurate assessment of the root of the jury's difficulties, and of the inconsistency between the murder verdicts in the case of D1, and the manslaughter verdicts in the case of the other applicants. It is important to recognise what those difficulties truly were, for that recognition impacts on much else.

121. The inclusion of a murder count was hardly curious, for it was the prosecutor's case, as expressed in the opening - such as it was - that all the applicants went to the Immigration Department on 2 August 2000 "for just one purpose ... to stage a violent protest by pouring thinner on persons inside the office and setting fire. By setting fire ... they must have intended to kill or to inflict very serious injuries on the people there." There was no suggestion in that opening of guilt of manslaughter by gross negligence, and the case was never left to the jury on such a footing. It was not suggested by the prosecutor that there was a suicide pact as, by reason of the provisions of section 5 of the Homicide Ordinance, Cap. 339, would give rise to the offence of manslaughter; and that too was never left to the jury as a basis for a manslaughter verdict. In his summary to this Court of the prosecution's case, Mr Luk SC, said:

"It was the Prosecution case that all the applicants committed each of the three offences on the indictment together in a joint enterprise. As a group they brought with them bottles of thinners and cigarette lighters to the Immigration Office to stage a violent protest by pouring thinners on people inside the office and setting fire."

It is noteworthy that the prosecutor did not specify, either to the jury or in that summary, the people whom they suggested it was intended to set alight, whether the protestors themselves, or the immigration officials; and the summing-up is noteworthy for the same rather important omission. One assumes, however, from the thrust of the case, that the assertion was of an intentional setting alight to immigration officials. That being so, it is difficult to see how the prosecutor could have justified an indictment which did not allege murder. By reason of the doctrine of transferred malice, the fact that one of the persons who died may not have been someone whom the attackers wished to die is irrelevant to the issue of culpability for the offence of murder.

122. Nonetheless, I tend to agree that the jury's conviction of D1 for the offences of murder, in the face of the acquittal of the other applicants of those charges, is attributable to the facts that:

(1) the judge did not tell them that if the principal actors, those who lit the thinner and thereby caused the injuries which in due course resulted in death, did not intend to kill or cause grievous bodily harm, then those who encouraged or assisted the principals, whatever intention those secondary participants may have nursed, could not be guilty of murder; and

(2) the jury heard words uttered by D1 and not by the others, which seemed, or could be said, to evidence an intention on his part that serious harm or death be caused.

Indeed, the summing-up had attached importance to the words D1 had used as evidence of his intentions. Yet, in contrast to the approach adopted in the case of the other appellants, the jury was not invited to address the question whether by his conduct he had actually participated in the acts which caused death. The judge, having instructed this jury time and again that it sufficed to constitute D1 guilty of murder if they were sure merely that he intended and had agreed that the contents of the bottles be spilled so as to kill or cause really serious bodily harm, then said this:

"If you accept the utterances of the 1st accused to the officers in the corridor concerning the anniversary of their deaths, as Mr McNamara seems to do - that they actually were said - that even without the reference to 'roast pork', there is a suggestion that the 1st accused knows that the officers are to be at risk. If you are sure the additional reference by 'roast pork' was used by the 1st accused, then the risk he refers to may, you might think, be one of fire. If you think those words could or might be or were a warning to the officer, or could or might be or were an insult or tasteless remark, then ignore them. But if you were sure that they were a threat, then they may assist you in determination of this matter." (Appeal bundle, page 27E-L).

In the context of the preceding passages of the summing-up, the "matter" to be determined, to which reference is there made, must have been D1's intention. Since intention, according to the judge's directions, sufficed regardless of what intentional act of assistance or encouragement D1 may or may not have rendered, and since intention was evidenced by the words he used, it is not surprising that the jury convicted D1 of murder.

123. I agree, in the circumstances, that the murder verdicts in relation to counts 1 and 2 cannot stand.

The Question of D1's participation

124. But my agreement is not founded upon the fact only that those verdicts were inconsistent with the acquittals of the others. In my judgment, those verdicts could not have withstood the directions which the judge gave as to what constituted the first appellant a party to whatever crime was committed. My conclusion in this regard carries over to the issue of manslaughter, (as well as arson). In my judgment, there were material misdirections in relation to participation in so far as D1 is concerned which, independently of my other misgivings about the directions and verdicts relating to the other appellants, render it impermissible to substitute in the case of D1 verdicts of manslaughter.

125. I note at [44] above the comment that the words used by D1 were important "regarding what may have been in D1's mind when carrying out his actions"; and at [45] the comment that "the acquittals for murder of the other appellants meant that D1's participation in the form of the encouragement he may have lent by his actions and presence in the room, was limited at most to manslaughter on which all the others were convicted." (My emphasis). Those comments are significant, for they illustrate the material lacuna in the directions in the case of D1.

126. I can fully appreciate the actions and the encouragement which my learned colleagues have in mind: the action of leadership; organizing the others to sit in certain positions which might render resistance to eviction more likely to succeed; encouragement by presence; and so on. But the fact is that it was for the jury to determine whether or not this appellant was or was not a participant in whatever criminal acts were perpetrated that afternoon at the Immigration Tower; whether D1 intentionally lent assistance to those acts. And what this jury was told as to what sufficed to prove him to have been a criminal participant was, in my respectful judgment, lacking in a material degree.

127. The jury was not told that intentional assistance by D1 was a condition precedent to guilt. They were not told that, if not physical action, then encouragement or some other form of intentional assistance was a condition precedent to guilt. They were not told what suggested actions on his part, or what suggested acts of encouragement by him, might render him a participant. They were not told in what circumstances, despite his absence from the room at the time the fire was started, he could nonetheless be a party to such crime as that ignition might represent. The directions, in their true effect, did not explain to the jury that mere intention did not suffice; that before D1 could be convicted of such offence as they might find was committed by the others, it had to be shown that he intentionally assisted the actual commission of that offence, by himself pouring liquid or lighting it or, if not that, then by encouraging the offence through words or conduct. This was particularly important in the case of D1 because it was common ground that he did not pour thinner; that he did not carry a lighter; that he did not light anything; that he was outside the room when the fatal act or acts took place; and that such threatening words as were used by him were uttered outside the hearing of the other applicants. And it is not just that no direction was given that some form of encouragement was a sine qua non of guilt, but the effect of the following comments and directions from the summing-up was to tell the jury, incorrectly, as it happens, that there was in fact no material evidence of encouragement or advice or instructions, and that that did not matter:

"Much has been [said] whether the 1st accused was the leader of the group. I do not think it really matters. What you have to do in respect of the 1st accused is draw what inferences you can properly draw given the manner that I have told you you must approach him, for instance, to ascertain what was the intention of the 1st accused. It does not matter if it was he a leader; it does not matter if he was one of the group. What matters is what he intended and what he agreed, if he did agree with others should happen." (Appeal bundle, page 31D-I). (Emphasis added).

"... he uttered no words of instruction, advice, or encouragement to the others. He took no physical part in the resistance to eviction." (Appeal bundle, page 26J-K). (Emphasis added).

and then, immediately after those words at page 26, the following:

"If the 1st accused is to be found guilty of any of the offences on the indictment, it can only be because he was part of an agreement to commit those offences." (Appeal bundle, page 26K-M). (Emphasis added).

I say that this is a material misdirection. It cannot be that if this appellant took no physical part and offered no encouragement and no advice and no instructions, that he is nonetheless guilty of the substantive offence, whether murder or manslaughter or arson, by mere reason of some prior agreement. That there was evidence of encouragement by conduct is clear enough, and there was ample material upon which a jury could have decided that D1 intentionally assisted the others in the acts which followed. But, as I say, that was a question of fact which they had to address, and it was not left to them to address it.

128. I am conscious of the instances which my learned colleagues have emphasized in which the judge told the jury of the need to be sure that D1 was "acting in concert" with others (see [57] and [59] above); and I note their view that in reality the summing-up in its overall effect invited the jury to decide "whether D1 had in fact acted by his words and his deeds as participant in the common design to ignite thinners in the event that immigration officers tried to evict them" ([60] above). This is a matter of judgment as to the true effect of the summing-up, but it is not a judgment which I feel able to share.

129. Time and again, as I shall illustrate in the passages which follow, the judge told the jury that it sufficed to establish guilt on the part of D1 that he had been a party to an agreement and that he nurtured an intent for the agreement to be executed and, as we have seen, he told them in terms that D1 had taken no action, and that none was needed; that if guilt was to be established, it could only be because he was party to a culpable agreement. The fact that we find buried here and there, in the course of a necessarily long summing-up, references to "acting in concert" does not cure the defect; and I note that the judge did not even explain to the jury what in this case "acting in concert" meant. Since it was not, according to the judge, encouragement or advice or leadership, which he told them did not come into play, what then was it?

130. The passages I have in mind are these:

(1) "If the 1st accused is to be found guilty ... it can only be because he was part of an agreement to commit those offences." (Appeal bundle page 26L).

(2) "Before you can be sure of the guilt of the 1st accused in respect of any offence on the indictment, you would have to be sure that he intended that the contents of the bottles of flammable liquid be splashed out by someone and lit so as to kill or cause really serious harm to the people in the room, or damage to the property; that the inference that led you to be sure of that intent was a compelling one, the only inference, and one that no reasonable man could fail to draw from the facts and that he entered into an agreement with those who spilled the liquid and lit it, to carry out that agreement. Nothing less than that will do." (Pages 26S-27D).

How he may have been party to carrying out the agreement, or the fact that it was necessary to show that he was party, is not stated.

(3) "These words may suggest, you think, that the 1st accused knew at the very least, knew of a plan among those present in the room to set themselves on fire if an attempt was made to evict them. The conversations in the room to those present in Hok Lo and in the telephone calls to Ah Shing, also in Hok Lo, contain no condemnation of that course of action. The 1st accused does not urge them not to take that course of action." (Pages 30S-31B).

What, one asks, was the jury to make of this reference to D1's failure to dissuade the others?

(4) "Much has been [said] whether the 1st accused was the leader of the group. I do not think it really matters. What you have to do in respect of the 1st accused is draw what inferences you can properly draw given the manner that I have told you you must approach him, for instance, to ascertain what was the intention of the 1st accused. It does not matter if it was he a leader; it does not matter if he was one of the group. What matters is what he intended and what he agreed, if he did agree with others should happen.

If you are sure that he intended that flammable liquid be spread in the room and lit, you must ask yourself what was his intention in that being done. You have seen the room and you know that there were 23 abode seekers and a number of Immigration officers present in that room at the very least. If you found you were sure that the 1st accused intended flammable liquid be spread and lit, you must consider whether he must have realized such as an act must almost inevitably cause really serious harm or death to persons in that room. In considering that, you would be entitled to take into account all he said that afternoon, including his reference to the anniversary of the deaths of the Immigration officers if you considered that relevant.

If, having considered all those matters, you are sure that he must have thought about it - that is, whether it was almost inevitable someone would be killed or seriously injured - and realized death or serious injury was inevitable, then you might conclude as an inference, so that you are sure, that he did intend that persons be killed or really seriously injured by the lighting of that liquid. If you reach that point, then you have done no more than to ascertain what you are sure was his intent. You must still decide whether there was an agreement and whether he entered into an agreement with one or more persons who agreed with him to carry out the same intent." (Pages 31D-32C).

(5) "... it would be open to you to infer if it were the only reasonable inference, that the action of this group was fulfilment of a plan to which the 1st accused was a party." (Page 32H-J).

(6) "So if there was an agreement to kill or seriously harm persons in Room 1301, you are sure that agreement existed; if you are sure that the 1st accused was part of that agreement and had the necessary intent to kill or to cause serious harm to persons in that room, and you are sure that Lam did not take his own life but died as a result of the agreement, then you would be entitled to convict the 1st accused of his murder." (Page 33).

The formula "died as a result of the agreement", which in its effect is repeated elsewhere in the summing-up, illustrates the difficulty into which the learned judge was driven by the failure to address the acts to which D1 may have been party and which caused death. That failure then necessarily compelled a concentration on culpability by reason, not of participation, but by reason of mere agreement.

(7) "If you are sure there was a plan to set fire in the room with the intent to kill or seriously harm people in that room and you are sure that the 1st accused was part of that agreement or a necessary intent, then he will be guilty in respect of that count." (Page 34E-H).

(8) As to manslaughter itself, the misdirection was repeated:

"If, in respect of the 1st count, you are sure that Lam did not kill himself - you are sure that it was not suicide - as an independent act, not being part of any agreement, but if you are sure that here was an agreement that flammable liquid be spilt and then lit, but there was no intention in that agreement to kill or cause serious harm to any person in that room, then those who were party to that agreement would be guilty of manslaughter and not murder." (Page 34L-P).

Note the words: "... those party to the agreement would be guilty ...." With respect, the words one would expect to find are: "... those party to the act or acts which caused death ...."

(9) "So if you are sure the 1st accused intended that flammable liquid be still and lit and agreed with others that it be done, but did not intend or may not have intended that death or really serious injury be caused, and you are sure Lam did not act on his own in taking his life, then the 1st accused would be guilty of manslaughter in respect of the 1st count.

Similarly in respect of Count 2, if you are sure that the 1st accused was a party to an agreement to set fire in the room, to spill flammable liquid but did not intend or may not have intended anyone to be killed or really seriously injured but that Mr Leung died as a result of that unlawful act, then the 1st accused would be guilty of manslaughter. The third scenario is this: if the 1st accused was party to an agreement to only spill the liquid and not set fire to it or to wave bottles and not spill the liquid, in other words to frighten the Immigration officers with those actions with no intent that anyone be killed or really seriously injured, then he is not guilty of anything in respect of the 1st and 2nd counts.

The reason for that is that if the agreement only went to the holding-up of bottles or spilling of liquid without the liquid being lit, or that may have been the case, then the deaths were not caused by that agreement. And if that was the agreement to which the 1st accused was party, then the lighting of the liquid was outside his contemplation and not part of what he had agreed. It was then done by others, or another outside what his intention was and he has no part of it." (Pages 34R-35M).

One observes that if D1 had agreed that liquid be spilled and lit but in the event the disaster was occasioned by, say, accident, then on the judge's directions D1 would still be guilty because he intended that flammable liquid be lit and agreed with others that it be done.

(10) "If you are not sure that he had the intent but you are sure that he was part of an agreement that the flammable liquid be spilled and lit, which was an unlawful act, and Mr Lam and Mr Leung died as a result, then he would be guilty of manslaughter. If he had no intent to be party to an agreement that the liquid be lit and no intention, or may have had no intention, or you cannot be sure that he had an intention that they kill or cause really serious harm, then he will be acquitted of both counts." (Pages 35S-36C).

The emphasis in each paragraph above has been added.

131. These passages each represent comments made by the judge when dealing with D1. One notes that immediately upon turning to D2, in the very next paragraph of the summing-up at page 36, the judge says this:

"The 2nd accused. Starting with Count 1, the same direction applies to this count in respect of the 2nd accused and all accused that applied to the 1st accused. If you are of the view that Lam Siu-sing took his own life or may have taken his own or could have taken his own life and that his death may not have been as a result of acts or intents of the other accused, then you will acquit the 2nd accused of the 1st count. If, however, you are sure that the 2nd accused intended by his actions in that room that day that people be killed or really seriously injured and Lam died as a result of acts by either the 2nd accused alone or taken in joint agreement with others with that intent, then the 2nd accused would be guilty of the murder of Lam." (Page 36C-J) (Emphasis added).

We see here reference to acts and to death resulting from acts, a notable difference repeated in the case of each of the other defendants, from the directions given in the case of D1. Whether the jury appreciated the distinction and its significance, it is not possible to say.

D1: Conclusion

132. For the reasons which I have provided, I do not see how it can reasonably be said that this jury was given an adequate direction on the law of participation as it affected D1, a matter of particular importance in his case given his absence from Room 1301 at the moment it was set ablaze; or, to put the matter more accurately, how it can reasonably be said that the directions as to what sufficed to prove guilt did not amount to material misdirections. One might add that the inconsistency of the jury's verdicts is perhaps a signal pointer to their lack of appreciation of the law which they ought to have applied; but that apart, I am not satisfied that D1 has been the beneficiary of a proper determination of the issues as they affect him. These misdirections affect all three counts upon which he was arraigned, and I would allow his appeal on all three counts, and order a retrial of D1 on an indictment alleging the manslaughter of Lam and Leung, and arson.

D2 to D7: The manslaughter verdicts

133. There are several features of this case which give me cause for material concern in relation to the verdicts of manslaughter. They are:

(1) the directions as to manslaughter;

(2) the directions as to what evidence the jury was entitled to act upon; and

(3) the additional evidence which has emerged since trial.

(1) The directions as to manslaughter

134. On the facts of this case, on the evidence which emerged, there were several bases upon which a manslaughter verdict might have been justified:

(1) that the death of Lam and Leung resulted from an intentional (as opposed to accidental) act (or acts) which was (or were) both unlawful and dangerous.

(2) that the deaths followed the execution of a suicide pact (see section 5 Homicide Ordinance, Cap. 339).

(3) that the acts causing death constituted gross negligence.

The case was not left to the jury on either the second or the third premise. Indeed, as to the third, the judge told them that:

"Recklessness has no part in your consideration of Counts 1 and Counts 2" (page 18G).

As is clear from the terms of the summing-up, the jury was invited to consider manslaughter on the basis only of an unlawful act.

135. There was, as we shall shortly see, an assumption that no matter the circumstances in which, or the end to which, or the purpose for which, thinner was spilled and lit, such an act was unlawful. I am of the view that that assumption - indeed, that direction - was not accurate.

136. The judge directed the jury that:

"... the word 'unlawful' need not concern you. If there were killings here, they were unlawful" (page 16O-P).

That was not correct. An accidental ignition resulting in death would not have been unlawful. More particularly in this case, since it may be said that the remainder of the summing-up by clear implication excluded accidental ignition (although the word "accident" never featured), an act of attempted suicide by any one or more of the applicants would also not have been unlawful, and would not have been rendered unlawful by the ensuing death of Lam or Leung. Suicide is not unlawful. It follows that attempted suicide, also, is not unlawful and

"... there is no room for the doctrine of transferred malice where D kills P in the course of trying to kill himself, for there is no 'malice' to transfer. In the latter case, D's liability depends on the general principles of murder or manslaughter. Thus if the death of P was utterly unforeseeable, it would be accidental death; if there was gross negligence as to causing death or recklessness whether death or serious bodily harm be caused, it may be manslaughter; and if D foresaw death or serious bodily harm as virtually certain, it may be murder."
(Smith & Hogan "Criminal Law" 9th ed. pages 382-383).

137. What the judge in this case did was to exclude a suicidal act or intention as a basis for murder (and manslaughter) in the case of Lam's own conduct only; and even then only in relation to count 1. So, for example, at page 32:

"You could not convict any accused on [count 1] if you found Lam might have or could have or did commit suicide as a decision of his own and not as part of an agreement to cause death or really serious injuries to persons in Room 1301. If he independently ... went his own way and killed himself, not as part of an agreement with [D1] or any other accused, or might have done so, then [D1] is not guilty of his murder."

In the case of D2, we see this, specifically in relation to manslaughter:

"If you are of the view that Lam Siu-sing took his own life ... and that his death may not have been as a result of acts or intents of the other accused, then you will acquit [D2] of the 1st count." (page 36D-F).

"... In respect of both Counts 1 and 2, if you are sure that [D2] committed the unlawful act of setting fire to flammable liquid in Room 1301 either on his own account or ... in pursuance to a plan of which he was part and to which he had the same intent and in the 1st count, Lam, and in the 2nd count Leung were killed by that unlawful act, but ... you cannot be sure that he intended that anyone be killed or suffer really serious harm, then you will convict him of manslaughter." (Page 36N-S) (Emphasis added).

And in relation to all these appellants, the judge said, at page 63:

"If you are sure that any accused - the accused when you consider each of them in turn - intended that liquid be splashed and lit so that a fire resulted, either alone or in agreement with others who had the same intent and the same agreement, but you are not sure if his intent was to kill or to cause really serious harm, then that accused would have committed the unlawful act of splashing out and lighting the flammable liquid but would not have the intent necessary for murder. Where you found those facts proved so you are sure in respect of any accused, you would find him guilty of manslaughter and in respect of the first count of course that Lam died as a result of that fire and not by his own hand." (Page 63D-K) (Emphasis added).

(One notes that sometimes the word "splash" is used and sometimes (for example page 50E) the words "pour out").

138. Those passages - and there are quite a number along the same lines - repeatedly:

(i) show an assumption that whatever the circumstance or motive, and against whatever person intended, the use of thinner and its ignition was an unlawful act; and

(ii) say that Lam's death did not attract criminal liability so long as his act of suicide, and that act alone, was or might have been responsible for his death.

139. It was in the circumstances of this case important, and incumbent upon the prosecutor, to identify the criminal act, and its appropriate mens rea, upon which it relied as the unlawful act, and then to prove it (see Smith & Hogan "Criminal Law", 9th ed., page 370); and it is noteworthy that the summing-up does not specify the crime which is said to be the unlawful act. What was not addressed was the end, the purpose, to which thinner was poured, (if deliberately poured), and what the ramifications were of each variant - whether in suggested resistance of eviction; whether self-immolation; whether assisting the suicide of another; or a pretence at suicide; or a mere act of gross negligence; or an assault on the immigration officers. In particular, the effect in law of an attempted suicide, or a pretended attempt, by the appellants, either as a group or individually ought to have been addressed, and the jury told in what circumstances such conduct justified, or did not justify, a manslaughter verdict, for it was not in every such circumstance that a verdict of manslaughter by unlawful act properly followed. Even a group decision that each individual should self-immolate was not in my judgment necessarily unlawful, since a suicide pact, which is unlawful, presupposes an agreement to kill another, not oneself; and complicity in another's suicide contemplated by section 33B of the Offences Against the Person Ordinance requires proof - which may have been easy to cull from the evidence - of at least counseling the commission of the act.

140. There was an evidential basis for a scenario of attempted, or a pretended attempt at, suicide by persons other than Lam. There was evidence that D2 splashed liquid onto himself. We see from the prosecutor's summary of the case that PW20 said that D2 splashed liquid on himself and that he saw a flame near D2's thumb. There was evidence from D3 that he poured liquid over himself. The comments made by D1, as well as comments heard on the tapes, are redolent with suggestions, or threats, of suicide. This jury was not directed to that issue in the specific terms that were required, and the direction that any act of spillage and ignition was an unlawful act was a misdirection. The fact that the appellants were convicted of arson is of no significance in this context, for an act of attempted, or a pretended attempted, suicide which goes wrong remains consistent with the direction, which we see at page 18 of the appeal bundle, that arson is committed by an act which creates an obvious risk that property will be destroyed by fire.

141. There is another aspect of the directions as to manslaughter which is addressed in the majority judgment, namely, the directions given on the second day of the jury's retirement, after they had submitted a note to the judge. Whilst questions from a jury after retirement are not unusual, the very fundamental nature of the questions posed in this case tend, I would suggest, to underscore my misgivings about the clarity of the summing-up in this very difficult case. I note that in the instructions which were given after the jury's note, the judge told the jury again that they "... need not be concerned with the word 'unlawful'." (page 71). Whatever other directions were given in the course of the summing-up which had ended the previous day, the jury on this occasion wrote down what the judge said. We see from the bundle, at page 70:

"Court: The jury are to be supplied with plain paper and pens ...."

And we see also that both the judge and counsel were then concerned to ensure that each juror was thus supplied. So, thus armed the jury must also have written down the judge's definition of manslaughter:

"Manslaughter is where a person is killed in the course of an unlawful act being committed by the person who causes the death, and it is not proved that the person who kills intended to kill or cause really serious harm." (Page 71).

142. That was not an adequate definition to a jury demonstrably anxious after one day's deliberation to know what it is that constituted the elements of an offence upon which they could properly return a guilty verdict. On the basis of the definition thus given, following an instruction, which had moments before been repeated, that any act of spillage and ignition was unlawful, a definition bereft of any reference to an intentional act, let alone to the act's potential for causing harm to third parties, the jury could do nothing else but return a guilty verdict. I do not in those circumstances think it right to permit these verdicts to stand.

(2) The evidence on which to act

143. Stuart-Moore VP has at [98] above recited the passage which appears early in the summing-up in which the trial judge, having told the jury that an accused had nothing to prove, said that in giving evidence what a defendant was doing was:

"... providing you with information which when you look at it and then look at the prosecution evidence without comparing them but looking at what you are sure is true might assist you in finding doubts in the prosecution case." (Page 5) (Emphasis added).

It is said at [100] above that there is doubt that the jury would have understood what the judge was saying but that if they did understand it "the impression created in their minds could have been that the jury could look at the defence evidence as information which might assist in finding doubts in the prosecution case when looking at what they were sure was true in the case presented by the prosecution." (My emphasis). That, I suppose, is a possibility, but it is not what the judge said; and the problem is this, that in directing the jury as to its analytical task, the judge regularly exhorted the jury to reach its verdict based upon such evidence as was established to be true, an analytical method to be adopted equally to defence evidence as to evidence adduced by the prosecutor. If I am correct, that the judge more than once led the jury, or may well have led the jury, to believe that the evidence upon which they were to act was only evidence the truth of which was established to their satisfaction, what then were they to make of such a direction in their approach to defence evidence and its role in their ultimate task? More pertinently, how can this Court be confident that the jury has not taken the judge literally and discarded such defence evidence the truth of which was not established to the jury's satisfaction? It is suggested that since the judge has regularly used formulae to the effect that the jury could only convict if sure that an appellant did such and such an act, and to acquit if it may be the case that Lam committed suicide, or that no more than intimidation may have been intended, this cures any "unfortunate" impression created by suggestions that they could only act on defence evidence if established to be true. I do not, with respect, think that that is logical. If these fact finders were told to ignore such evidence as they could not be sure was true - and I think it is clear that they were told that - by what token or upon what evidence might they have given any weight to suggestions, for example, by some appellants that they thought that they were carrying mineral water; or to D4's contention that he told the officers to stand back; or to evidence that there was no intention to set fire? Might they not then have said to themselves that, not being sure about such suggestions, they were to look only to the undisputed fact that all but one bottle contained thinner, to the undisputed fact that flames were ignited, to the undisputed video evidence that thinner was thrown, and to the evidence of the witnesses who were officials, and then act only on such evidence?

144. In addition to the passage at page 5 of the bundle, I have in mind the following further passages. The emphasis in each instance is mine.

(1) The judge opened those passages in the summing-up which first addressed the evidence in the case, as follows:

"Now, the evidence. I will perhaps take a slightly different approach than has been dealt with by counsel, at least initially, which I hope will be of some assistance to you.

Some of the evidence you will be able to take as true without giving it much thought, which does not mean that you are not going to deal with it seriously but you will not have to analyse it deeply to be sure that it is true." (Page 19L-P).

No doubt, the judge's mind was directed to prosecution evidence. Yet he did not say so, and my point is that the same theme, directing the jury only to evidence which they could be sure was true, was repeated.

(2) In dealing with D3's statement, which contained some exculpatory assertions - for example, that the idea mooted by D2 had been that they should pour thinner over themselves; and that he D3 had not poured thinner (I acknowledge that elsewhere he said that he had) - the judge said:

"But the statement itself is a matter which you have to consider. Your approach to the statement should firstly be to decide what of it is true from all you have heard of its making. Secondly, to determine to what use you can put, if any, what you find to be true in the statement." (Page 41J-M).

The fact that the judge said that D3's statement was available for and against D3 only is not to the present point. By that very comment, the judge acknowledged that there was material there for D3. Yet by telling them that they might use from it what they found to be true repeats the earlier refrain, and does so in the case of a statement by a defendant, not by a prosecution witness. Then, at page 43, the judge said this, again referring to D3's statement:

"You must determine whether or not there is any value in the words 'poured it out' in item 70; 'so by oneself poured' in item 258; or whether his denials for the rests of the statement are the truth. I cannot help you with that. That is a decision that you make as a jury. What you do is, having decided what of the statement you can accept as true, you discard anything you are not sure about. Anything in the statement you are not sure is true, throw it away. It is out of your consideration. You then use what you are sure is true in your deliberations." (Pages 42-43).

In so far as the direction instructed the jury to utilise only such of D3's statement as they were sure was true, with no distinction made between inculpatory and exculpatory content, the direction constituted a fundamental misdirection.

(3) When he moved on to address the evidence in the case of D3, which included evidence for the prosecution and D3's own oral testimony, the judge said:

"What conclusion you reach as to what facts are true and what inferences you draw, are for you. The 3rd accused said he had no intent to pour the liquid or have it set alight. He said PW6 is mistaken or wrong and that, far from splashing out the liquid, he placed the bottle on the ground and left.

It will be for you to consider his actions on the tape, his involvement in the course of the afternoon, and the attitude that he displays from what you can see on the tape. It was not put to him by the prosecution as Mr Tolliday-Wright points out, that he had splashed the liquid from the bottle and whether that makes any difference to what you find to be true, is a matter for you." (Page 45A-H).

(4) In addressing the case for and against D4, the judge referred to D4's suggestion of an agreement that the group would pretend to pour liquid on themselves merely "to frighten the Immigration people" (page 47A). He invited the jury to consider what was the agreement of which D4 seemed to be aware, and the elements of such an agreement which seemed commonly to emerge from the evidence of the defendants. Then, this:

"All those common elements, you might think, were in the minds of at least five people on the evidence as presented from various accused. This may assist you in determining whether or not you can be sure there was some agreement at all. You will of course then have to go on and decide what you are sure was the nature and terms of that agreement and who was involved in it." (Page 47Q-T);

with no caveat or qualification of the benefit to D4 (and others) that followed if they found that D4's suggestion might be true.

(5) D5's case was that he brought with him a bottle of mineral water and that when the immigration officers rushed in, he held it aloft as a gesture, hoping to frighten the officers so as to prevent arrest, but that he was then jostled, and when the fire erupted he dropped the bottle. If that evidence was true or might have been true (assuming that it might have been the case that he did not know others had thinners; or did not, even if he so knew, assist any offence by them), he would have been entitled to acquittal. Despite a direction shortly afterwards, to acquit if D5 could have intended no more to intimidate the officers or may have had no intention to start a fire, this is what the judge said, (starting, one notes, with the same formula which in the case of D1 I have argued was not acceptable):

"Of course, as I pointed out in respect of the 1st accused, it is not necessary an accused have or pour thinners. If you are sure he had the necessary intent for murder and entered into an agreement, then in accordance with that intent the thinners be poured and set alight by others, and that occurred causing the death of Lam whom you are sure did not die by his own hand, then you would find the 5th accused guilty of the 1st count.

Mr Hagon argues that from the presence of the 5th accused with his bottle among the other abode seekers with liquid jostled from his bottle, there is insufficient to draw an appropriate inference that he intended to kill or cause really serious harm or that he did any act that resulted in the death of Lam or was party to an agreement that led to someone else causing his death with a common intent with the 5th accused. His argument is the same with respect to the 2nd and 3rd counts. I cannot help you further.

The law is clear and you must decide what facts are true and what proper inferences you are prepared to draw given the manner in which you are permitted to draw them." (Page 54G-R).

(6) D6's defence was also that he carried a bottle which he thought contained mineral water. He too said that he was jostled. He denied removing the bottle's cap. The judge said this:

"Again, that is a matter of fact for you - a matter for you to look at what his actions are at the top of the bottle. He then, you will see, moves his right, the bottle being in his left. The right hand goes down to his side and then is brought up again and placed on the side of the bottle. It is a matter for you to decide, given his denial that that was a removal of the cap, what he actually was doing. Unless you can be sure of what he was doing, you of course cannot rely upon the evidence. Such matters are for you." (Page 56M-R).

145. One notes throughout these passages the emphasis on acting on evidence which is shown to be true, with no distinction drawn between defence and prosecution evidence. I have not rehearsed the many passages of the summing-up in which the judge has told the jury not to convict unless sure of certain facts, or the passages in which he tells them to acquit if it may be the case that a defendant intended no more than to intimidate. In my judgment, they do not cure the impact, which at the least is uncertain, of the passages which I have highlighted, and which render it difficult to be assured that the jury's analytical approach to the evidence, and to the burden of proof, was correct.

(3) The new evidence

146. I accept that the comments of the group, amongst whom the appellants were numbered, which were heard by the jury, on the video tapes, and the transcripts of which were provided, contained several references to suicide, although I do not agree, as is suggested in [85] above that suicide was properly put as an issue before the jury - a point which I have already developed. More relevantly, however, to the issue which I now wish to develop, I cannot agree that the additional words revealed by the enhanced recordings do not materially add to what was before the jury.

147. What was already before the jury were comments made as the afternoon of 2 August 2000 progressed, that suicide was threatened. There is however new material of which the appellants might, quite reasonably, have sought to make use, particularly:

(1) where that new material shows what was said, not as the afternoon progressed, but at the time, or very shortly before, the intended eviction of the appellants;

(2) where what was said by one or more of the group at that highly material time - and was said more than once - was that the liquid be poured not for its ignition but in order for its smell to spread; - comments that could have been used in support of evidence that the intention was merely to let the officers know that thinners were in the room, and that the earlier threats of suicide were, perhaps, serious; and

(3) in so far as the enhanced recording supported D4's case, that he had told an officer or officers not to approach. This suggestion had been challenged as untrue by a prosecutor whose case, it seems, was that the appellants went to the Immigration Tower specifically intending to set fire to officers there.

148. The additional or new evidence which has impressed me as relevant to the appellants' defence is as follows:

(1) Much was made, quite understandably, by the prosecutor, of D1's instruction to the group at about 4.30 p.m. that men should come to the front of the room. As is clear from the summing-up, the suggestion was that this evidenced the plan to kill or cause harm to persons in the room - presumably to immigration officers; and in suggesting to the jury what evidence they might wish to examine as to "what was in the mind of the 1st accused that afternoon" (page 26), the judge invited them to consider two matters in particular: first, D1's utterances in the corridor to the officers and, secondly, "... item 44 of tape 1 ... where the 1st accused initiates the movement of the women present to the back of the room" (page 27M-N). The comment, made at 16.39, to which he thereby referred, identified on the original transcript as from the voice of D1, is: "Sit at the front, let the girls sit at the back." What we see from the new material is that at 16.40 a male says: "Who's got the stuff sit in the front" - "stuff" being a reference to thinner, and then someone says: "Indicating are ready to die by bringing thinner, die for sure". (My emphasis). Here, then, was an intimation, made at the very time the men moved forward, as to why they moved forward and with what intent they held the thinner; a comment which might have been used to support the case of mere intimidation, or desire to avoid eviction, which the judge told the jury would entitle the appellants to acquittal.

(2) The original tapes and transcripts - that is, the tapes and the transcripts which were before the jury - of which there were four, contained a comment by an unidentified person shortly before the conflagration: "No need to light", followed by the comment: "Pour it over". That cautionary note: "No need to light" was, as far as I can tell, the only reference to that particular effect. Yet the new material shows that comment repeated - the emphasized passages are the newly revealed passages:

(i) Transcript of Exhibit P17; at item 167:

"No need to light. Pour it over. Open and then pour. No need to ignite, pour out but do not ignite, no ignition needed. Female: we should not take action first. Male: open the cap, let the smell spread out."

(ii) Transcript of Exhibit P16, at items 1 and 2, timed at 17.56; in other words, only minutes before the conflagration:

"Just hold it and it will be alright. .. Get the lighter, do not ignite. Pour down .. open and pour. Male: Just hold it and it will be alright, do not ignite, open the cap; let the smell spread out, do not ignite it, don't ignite it, let the smell spread out; do not ignite it, don't ignite it, let the smell spread out.

[Another speaker]: Really have to die. Female: we should not take action first, open the cap."

I do not imagine that these passages from transcripts P16 and P17 are of different conversations, but that taken together, they indicate what was said at about 17.56. One notes that the evidence of D2 was that he told Lam not to light the thinner. Whether these newly revealed passages were or were not his comments, here is possible support for him, or for the general defence, that the pouring of the thinner was with no intention to cause harm, but rather ("let the smell spread") to alarm.

(3) In the course of his testimony, D4 said that he had held up a bottle merely to frighten and that he then said to the immigration officer in front of him, who was stretching out an arm: "Don't come over" because he, D2, did not want the bottle snatched from his hand; and with that in mind he, D2, retreated and then bumped into other people, and was jostled, and that at that juncture there was a sudden eruption of fire in the middle of the room (page 1298, transcript: appeal bundle, page 312). In the course of cross-examination of D6, Mr Luk SC, on behalf of the prosecution put this:

"Q.	Nobody said anything like, 'Don't come near us or else we're going to pour thinner on ourselves.' Nobody said anything like that.
A.	Well, I did not notice whether it was said or not.
Q.	Did anyone say, 'Don't remove us from this room' or 'Don't evict us' or 'Don't take us away' - words to the same effect - to the immigration officers?
A.	I did not hear it. At that time it was very noisy.
Q.	All right. So in other words, no one gave any warning or threat or uttered any threat to the immigration officers." (Page 1462, transcript; page 359 appeal bundle).
...
"Q.	From what you could hear at that time, nobody uttered any threat to immigration officers nor gave any warning to them. Is that right?" (Page 1463 transcript; page 360 appeal bundle).

The fact of the matter, as we now know, is that words to that precise effect were used, and were used immediately before the fire started. The words "Don't come over" were used, it appears, by a female; and we see also that a male did ask an officer not to snatch. We see this, which tends to support D4's evidence, from transcript P18, at items 34 to 37 inclusive:

"Female: Stop there! Don't come over! ...
....
Male: Don't snatch!
[Another] Call an ambulance.
... fire alarm ringing"

All this is new evidence revealed by digital enhancement since trial.

149. These various passages were all, in my judgment, material to issues in the case and could reasonably have been used by defence counsel to support the case advanced by their clients. Whether in the event this new material would have made any difference to the result I cannot say. What I am not prepared to say, however, is that the effect of these 'new' passages was already before the jury or that if they had been presented, it would inevitably have made no impact. In short, I do not think it safe or proper to permit these verdicts to stand when the fact-finding body was deprived of the benefit of this material.

Conclusion

150. The task presented for the purpose of summing-up in this case was as complex as one might envisage. It was a case in which there were no fewer than seven defendants. Some gave evidence; some did not. Each defendant offered a defence which was different. The events which lay at the core of the case were themselves complicated, spanning some hours and culminating in a confused and confusing finale, which presented a number of alternative scenarios as to what caused the conflagration and what the intent of the group and of individuals amongst the group might have been. Each variation had its own ramification in law. Any tribunal tasked with summing-up in such a situation will wish to avoid overcomplicating the directions given; whilst at the same time fulfilling the need to ensure that the alternatives are indeed covered, both as to fact and as to law. That is an enormously difficult exercise. In this case, that exercise was in my judgment made the more difficult by the prosecutor's opening. An opening is supposed to be an aid to a jury as well as to a judge. It is intended to set the scene and in a complex case such as this to specify precisely what the case is against each defendant, and how it is said that each defendant is rendered culpable. We see in this case an opening which suggested, quite unrealistically, that all the defendants went to the Immigration Department with a view to setting fire. The prosecutor did not say whether this was to set fire to the immigration officers; whether only in certain circumstances; whether possibly to commit suicide; and if so, in each instance, with what consequence; or whether to intimidate, and if so with what consequence. The judge's conduct of the trial was described by leading counsel in this appeal as the personification of fairness, as from the material we have seen it was clearly intended to be. With the benefit of hindsight and detailed scrutiny, we are now able to see that the failure adequately to identify those many issues has resulted in shortcomings which I have specified. In the event, and for the reasons I have given, I am unable to say that the verdicts were safe and satisfactory and, accordingly, I would allow the appeals, quash the convictions in relation to all the appellants, and order each to be retried for manslaughter in relation to the deaths of Lam and Leung, and for arson.

Yeung JA:

151. To decide if the summing up by the judge is adequate, it must be borne in mind the nature of the prosecution case against the Appellants.

152. The prosecution case does not rest on any suggestion that the Appellants encouraged, advised or instructed others to commit the offences at or about the time when the offences were committed. The prosecution case is that the Appellants were acting in concert with one another. They committed the offences either on their own or did an act or acts as part of a joint plan or agreement with others to commit the offences. The judge referred to it in these terms:

"Now, Mr. Luk rather pitched the prosecution case that there had been, prior to anyone going to Room 1301 on 2 August, a plan to set fire and to kill or seriously harm persons in Room 1301 later that day." (Appeal bundle p.13)

153. The act or acts include, inter alia, abusing and threatening the Immigration Officers, carrying the bottles of thinner and/or lighters, uncapping bottles and splashing liquid around or encouraging others to do the same and flicking lighters to cause ignition.

154. If two or more people go out together in joint possession of items such as bottles of thinner and lighters and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to start a fire to cause fear in another, the contemplated act is unlawful. Bearing in mind the intention is to use the bottles of thinner and lighters in a confined and small area; the act must be a dangerous act.

155. The judge had given repeated direction on joint enterprise throughout the summing up as set out in the judgment of Stuart-Moore VP.

156. In relation to the arson charge, the judge directed the jury that an accused could only be guilty if he intended that a fire be lit either by himself or in agreement with others.

157. On each of the homicide charges, the judge used the same formula, namely "if an accused was a party to an agreement to set fire in the room, to spill flammable liquid but did not intend or may not have intended anyone to be killed or really seriously injured but that [the deceased] died as a result of that unlawful act, then the accused would be guilty of manslaughter".

158. The judge emphasized that if "an accused intended no more, or might have intended no more, or could have intended no more than to intimidate the officers by waving the bottle or even pouring out the liquid, but not by setting fire to it, had no intention or might have no intention that fire be started", then he should be acquitted.

159. On the background of the case, the direction by the judge is adequate and correct.

160. The jury must at least have found that the Appellants had started out on a joint enterprise which envisaged the starting of a fire in the office of the Immigration Department, albeit with a view to cause fright only. On such finding, convictions on the arson charge and on manslaughter on the homicide charges against each of the Appellants are inescapable.

161. I have the benefit of reading the draft judgment of Stuart-Moore VP with reference to each of the Appellants. I agree entirely with his conclusion and his reasoning. I too, would make the order he has set out.

Stuart-Moore VP:

162. It follows from the judgments which are set out above that D1's convictions for murder on counts 1 and 2 are unanimously quashed and that by a majority, D1's murder convictions are substituted by verdicts of manslaughter and that his conviction for arson is upheld. Also by a majority, all the convictions of the remaining Appellants on counts 1 to 3 are upheld.

163. There remain for our consideration the applications for leave to appeal against sentence. Although, of course, D1 has not made such an application, we shall, at the same time, hear submissions on his behalf before deciding the sentence to be imposed in substitution for his life sentences on counts 1 and 2. In the meantime, he will remain in custody.