TNAG-0487-FCO40-552-Review-of-death-sentence-in-Hong-Kong-1974 — Page 121

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you can safely dismiss from your minds any consideration of whether there was a pre-arranged boating or pre-arranged killing. I think you should deal with the matter on the basis that the beating was something which was not really pre- arranged but arose, probably when it proved impossible to produce the girl or return the money. That, to some extent, makes your task rather simpler and makes the burden on the accused somewhat lighter".

Admittedly the reference to making the burden on the accused somewhat lighter was unfortunate; we are at a loss to understand what the learned commissioner had in mind at that point in his suming-up. However, the summing-up must be read as a whole and, if that be done, it becomes clear that the jury could not have been left with any impression that it was for the appellants or any of them to discharge any burden of proof. Thus, although we have not the advantage of a transcript of defence counsel's final speeches to the jury, it is apparent from the judge's summing-up that these speeches had contained references to the burden of proof; for at an early stage in his summing-up the learned commissioner

said:

"As you have been told several times already the burden of proof is on the Crown and the degree of it is beyond reasonable doubt in relation to each accused on each charge."

Two-thirds of the way down the same page of the transcript of the

summing-up there occur the words:

"If any reasonable doubt remains in your minds he must be acquitted simply because the case has not been proved, and it is for the Crown to prove it.""

We have provided the underlining.

the learned commissioner said:

Immediately afterwards

"You were told by Mr. Lawrence Leong in his speech on behalf of the 4th accused that it was not for an accused person to prove his or her innocence, and of course that is perfectly right".

Here, in the space of one page of the transcript of the

summing-up, occur three distinct references to the burden of proof

and we are unimpressed by the suggestion that since there was an

overnight adjournment in the course of the summing-up, and since