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assisting the causing of that harm by somebody else the person you may call
in short an 'encourager'
may also be
convicted, as charged for doing grievous
bodily harm with intent."
The learned commissioner then went on to explain to the jury the alternative possible finding of inflicting grievous bodily harm under s.19 of the Offences Against the Persons Ordinance.
We do not consider that there is any merit in the various grounds of appeal which relate to the direction upon common intent.
A ground peculiar to the 5th appellant was the learned commissioner's refusal to hear his counsel upon a submission of
-no case to answer. The matter arose thus: at the conclusion of the
.
case for the Crown no attempt was made by counsel for the 5th appellant to make such a submission and it was only after the evidence of the first three appellants had been heard (the 4th appellant did not give cvidence) that counsel for the 5th appellant attempted to make a submission. The learned commissioner declined
to hear such submission at that stage saying it should have been
made at the conclusion of the prosecution's case.
That, as we
understand it, is certainly the practice in England and has been the practice in Hong Kong, although Mr. Leung was able to cite
an Australian authority supporting the course which he wished to
adopt. For our present purposes the point is academic for, upon a
careful consideration of the evidence which existed with regard
to the 5th appellant at the close of the prosecution's case, it
is clear beyond a peradventure that any such submission must have
failed.
A further ground of appeal common to the first four
appellants was that at one stage of the summing-up the learned
commissioner employed the phrase "this makes the burden on the
accused somewhat lighter"; it was said that this may have led the
jury to think that it was for the accused to prove their innocence. The phrase occurred after the learned commissioner's comment, already quoted, to the effect that the jury should deal with the matter on the basis that the beatings were not something which were really
pre-arranged.
In its context, the phrase complained of appears
thus:-
"But this case we are dealing with is
a different sort of case, and I think
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