TNAG-0487-FCO40-552-Review-of-death-sentence-in-Hong-Kong-1974 — Page 229

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jury thought the Appellants' story, that they went to the flat merely

to reason with Tai Pau, might possibly be true they would in all the

circumstances of the case inevitably have acquitted.

The second part

What we think

of this argument necessarily depends upon the first.

we have to ask ourselves here is whether there is a real danger that

the jury returned their verdict on the murder count upon any basis

other than that of a common intent: unless we can be sure that there

is no such danger we cannot say that they would inevitably have come

to the same conclusion had they been correctly told that their

decision must rest upon a common intent. Looking at the case as a

whole, and particularly bearing in mind that the case for the

prosecution was never presented on the basis that the Appellants struck

the fatal blows, we have come to the conclusion after most anxious

consideration that no substantial miscarriage of justice has

occurred as a result of the misdirection.

The other matters advanced on behalf of the Appellants can be disposed of quite briefly. It is said that there are passages in

the charge to the jury which tended to negative the general direction,

which it is conceded was correct, concerning the onus of proof. The

complaint rests upon the use of the phrases "if you accept" the story

of the Appellants and "if you thought" and "if you felt".

In some

contexts the words "think" and "feel" can undoubtedly have a

connotation totally inconsistent with proof beyond reasonable doubt,

but they do not necessarily bear such a connotation. Again, there

may be cases where express reference to a condition that the jury

accepts the story of an accused without mention of the possibility

that, although not believing the story, the jury might be in doubt

whether it was true or false would tend to suggest it was for the

accused to prove his innocence. It is sufficient for us to say that

in the present case we are satisfied that when the summing-up is looked at as a whole there is no ground for complaint of misdirection as to the onus of proof.

Next it is said that the jury were insufficiently warned of the danger of believing the evidence of Miss LAI Mei-lin as to

the identity of the persons she saw at the scene.

No reliance was,

in the event, placed on the fact that the identification parade record book was admitted in evidence. However, counsel did suggest that some similarity of build and features between the two Appellants and some suggested discrepancies in the evidence of various witnesses