Mr Rushford
CONFIDENTIAL
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CAPITAL CASES: HONG KONG
LAM PO
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1 The Governor warned us (Hong Kong telegram No 1125) that this case was likely to prove very difficult. He said that he was arranging for the psychiatric examination of the prisoner and would telegraph again thereafter. Meanwhile he has sent us the records for advance examination. The Governor also referred to the previous case in 1972 in which Lam Fo was convicted of murder and reprieved. I attach a copy of the relevant ExCo minute of 25 August 1972.
2. Before the case records were received I sent a telegram to the Governor (FCO tel No 994) suggesting that it would be helpful if the Governor could comment on the questions of provocation or self-defence, which would be relevant to the consideration of a possible miscarriage of justice under the Creech-Jones formula. I also pointed out that, of course, we would have to consider the latest case in isolation from the earlier one.
3. Having now read the court records my own doubts about the case remain. Lam Po was not represented, albeit by his own choice. The prosecution case negativing provocation and self- defence, as well as showing motive, rests to some extent on the statement made by the accused to the prison officers that he had killed in revenge. This statement was not part of the act itself; it was made to a person in authority; and there was no caution. There might be some doubt as to whether it was admissible. It also seems possible from the recorded evidence that only one of the prison officers was fluent in Cantonese, in which case the other's account of the prisoner's actual words would have been hearsay. The trial judge in his summing up and in his report to the Governor does not refer to any of these points as possible reasons for the jury to consider carefully the weight which should be put on this evidence. Instead he said only that the accused did not cross- examine the prison officers, which is not surprising as, being unrepresented, the accused clearly had little idea what cross- examination means. If one can assume that the jury were properly cautious, though uncautioned, about this part of the prosecution evidence, then the evidence proving the absence of provocation or self-defence must be that of those prisoners who said that the accused rushed upon the deceased, as against that of the single prisoner who said that there was a fight. We obviously cannot compare the credibility of the witnesses at this distance, but the judge appears at one point in his summing up to direct the jury that the evidence of the witness who supported the accused must have been false.
CONFIDENTIAL
14.