Documents are material to the matters in question in the action within the meaning of Order XXXI., rule 12, if it is not unreasonable to suppose that they may contain information directly or indirectly enabling the party seeking discovery, either to advance his own case, or to damage the case of his adversary.

The plaintiff company sued the defendant company for breach of contract: the defence to the action was that no contract had been concluded, and that only negotiations had taken place between the parties. The defendants having obtained an order for an affidavit of documents, the plaintiffs set out, amongst others, their minute-book, which referred to certain documents and letters; the entries as to these documents and letters were of a date subsequent to the date of the alleged breach of contract; the documents and letters were not set out by the plaintiffs in their affidavit. The defendants claimed a further and better affidavit from the plaintiffs, setting out the documents and letters above-mentioned, on the ground that they might show that after the alleged breach the parties were still negotiating, and might tend to disprove the plaintiffs’ allegation that a contract had been concluded:-

Held, that the plaintiffs were bound to make a further affidavit of documents.

Dec. 16, 20. Shiress Will, for the defendants. The defendants are entitled to an order for a further affidavit as to documents on the part of the plaintiffs. The affidavit which has been made has disclosed certain entries in the minute book of the plaintiff company, and amongst these is one of the 2nd of November, 1881, which refers to a letter and two telegrams, and there are others of the 3rd, 8th, and 16th of November, 1881, also referring to telegrams and letters. If the minutes themselves are relevant, so must be the matters which are therein referred to, and the right of the defendants to a further affidavit and discovery as to these documents comes within the rule laid down by

BRETT, L.J. In this case the defendants under the rules and orders took out a summons requiring the plaintiffs to make an

(1882) 11 Q.B.D. 55 Page 61

affidavit of all documents in their possession or under their control relating to any matter in question in the action: thereupon the plaintiffs made an affidavit setting out many documents, which they admit to be in their possession and under their control, and which they admit, in some sense, to relate to matters in question in the action. The defendants have taken out another summons, which calls upon the plaintiffs to shew cause why they should not make a further affidavit. The meaning of that summons seems to me to be this, that the plaintiffs did not in their affidavit set out all the documents which they ought to have set out in that affidavit. Upon this second summons of the defendants the first question raised is, what must the defendants shew in order to support it. It seems to me that they must shew necessarily that the plaintiffs had not set out in the affidavit all the documents which they ought to have set out. Before Jones v. Monte Video Gas Co. (1) was decided, uncertainty was felt as to the sources from which the Court might derive information in order to determine whether the party, against whom the application was made, had given a proper answer. In this case the plaintiffs in their affidavit set out all the documents which in their view they ought to set out. It was decided in Jones v. Monte Video Gas Co. (1) that a contentious affidavit, as it was called, of the party making the second application, can not be looked at, that is to say, that if nothing appeared in the affidavit made on the first summons, and if nothing can be gathered from other sources which I will presently mention, the party taking out the second summons cannot be heard to say in opposition to the affidavit of his opponent that he believes, and has good grounds for believing, that that opponent has other documents material to the question in the action. It was held in Jones v. Monte Video Gas Co. (1) that the only sources into which the Court could look in order to ascertain whether the first affidavit was sufficient or not, was the affidavit itself, or the documents referred to in that affidavit, or the pleadings which had been delivered between the parties, and that in order to justify an order upon the second summons the Court must be satisfied from one of those sources that the party

• (1)     5 Q.B.D. 556.

(1882) 11 Q.B.D. 55 Page 62

making the first affidavit had omitted to set out in it some documents which are material to the question in dispute in the action. The case of Jones v. Monte Video Gas Co. (1) did not enter upon the question as to the nature of the documents, which may be required to be produced. In the present case the sources from which the defendants say that they can shew that the plaintiffs have not set out all the material documents, are the documents mentioned in the plaintiffs’ affidavit. Therefore the question in the present case is not governed by Jones v. Monte Video Gas Co. (1); it goes beyond the decision in that case. The question is not as to the sources to which the Court must look, but as to the nature of the documents which ought to be set out in the affidavit. The nature of the documents, which ought to be set out in the affidavit, may be gathered from the rules and orders of the Judicature Acts. The party swearing the affidavit is bound to set out all documents in his possession or under his control relating to any matters in question in the action. Then comes this difficulty: What is the meaning of that definition? What are the documents which are documents relating to any matter in question in the action? In Jones v. Monte Video Gas Co. (1) the Court stated its desire to make the rule as to the affidavit of documents as elastic as was possible. And I think that that is the view of the Court both as to the sources from which the information can be derived, and as to the nature of the documents. We desire to make the rule as large as we can with due regard to propriety; and therefore I desire to give as large an interpretation as I can to the words of the rule, “a document relating to any matter in question in the action.” I think it obvious from the use of these terms that the documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action; and the practice with regard to insurance cases shews, that the Court never thought that the person making the affidavit would satisfy the duty imposed upon him by merely setting out such documents, as would be evidence to support or defeat any issue in the cause.

The doctrine seems to me to go farther than that and to go as

• (1)     5 Q.B.D. 556.

(1882) 11 Q.B.D. 55 Page 63

far as the principle which I am about to lay down. It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these twa consequences: the question upon a summons for a further affidavit is whether the party issuing it can shew, from one of the sources mentioned in Jones v. Monte Video Gas Co. (1), that the party swearing the first affidavit has not set out all the documents falling within the definition which I have mentioned and being in his possession or control. I agree that the party issuing the summons for a further affidavit is bound by the description given in the sources of information mentioned in Jones v. Monte Video Gas Co. (1): that is to say, he is bound to a certain extent: I do not think that he would be bound absolutely by every description of their contents if the Court can see, from the nature of them, that the description of them is not or may not reasonably be correct. I do not think that the Court is bound any more on the second summons than on the first to accept absolutely everything which the party swearing the affidavit says about the documents, but the Court is bound to take his description of their nature. The question must be, whether from the description either in the first affidavit itself or in the list of documents referred to in the first affidavit or in the pleadings of the action, there are still documents in the possession of the party making the first affidavit which, it is not unreasonable to suppose, do contain information which may, either directly or indirectly, enable the party requiring the further affidavit either to advance his own case or to damage the case of his adversary. In order to determine whether certain documents are within that description,

• (1)     5 Q.B.D. 556.

(1882) 11 Q.B.D. 55 Page 64

it is necessary to consider what are the questions in the action: the Court must look, not only at the statement of claim and the plaintiffs’ case, but also at the statement of defence and the defendants’ case. In the present action it is true to say that the contention of the plaintiffs is that there was a concluded agreement, and that there was a breach of that agreement on a particular day. I quite agree that these documents, which are referred to in the minutes to which our attention has been drawn, cannot affect the plaintiffs’ case if it be true; for the documents, of which production is now sought, came into existence after the alleged breach. But the defendants’ case is that there never was a concluded agreement, and of course there never was or could be a breach of an agreement which never existed. The defendants’ case is that, from the beginning to the end of the whole transaction, even up to the time of bringing the action, the whole matter was in negotiation – there was one unbroken series of negotiations. Therefore, if the defendants can shew that there are documents in the possession of the plaintiffs which, it is not unreasonable to suppose, do contain information which may support the defendants’ case, those documents, as it seems to me, ought to have been set out by the plaintiffs in the original affidavit, and must be set out by them in a further affidavit. That drives us to the question whether the documents are such as do contain, in our opinion, matters which may support the defendants’ case that there were merely continuing negotiations. Take the minute with regard to documents No. 2, according to which the president read a letter and two despatches received from Mr. Adam, and setting forth to the company the new difficulties which the Peruvian Guano Company were raising. It is said that these documents cannot be material because they are subsequent to the date when the contract is alleged to have been entered into; but as the case for the defendants is that there were continuing negotiations, new propositions in a continuing negotiation are part of the negotiation; and therefore it seems to me that the defendants do shew that the plaintiffs have documents in their possession which may reasonably be supposed to support the defendants’ case, if the defendants’ case is true. I have felt very great difficulty in differing from Pearson, J., because there is no

(1882) 11 Q.B.D. 55 Page 65

judge whose opinion I should more anxiously regard: but as to No. 2, I am bound to say that I think he gave too minute a construction to rule 12 of Order XXXI., and that he insufficiently considered not only what was the plaintiffs’ case, but also what was the defendants’ case. With regard to the other documents, except No. 3, to which my learned Brother has alluded, it seems to me that they are in the same category as No. 2, unless they are attempts to negotiate a settlement or a compromise. If I thought that they did appear to be attempts at negotiation for a settlement, I should be clear that no affidavit ought to be made with regard to them, because negotiations to effect a settlement cannot be material with regard to matters in dispute in the action. I may be wrong, but I have come to the conclusion that it is not unreasonable to suppose that these are not negotiations for a settlement, but that they do contain information which may shew that there were continuing negotiations, and therefore they seem to me to be within the same category as documents No. 2. It may turn out that my view is wrong, and that these documents are attempts to negotiate a settlement, and if that is so, they will be properly rejected if they are offered in evidence at the trial; but what I say is, the rule which governs us at this moment is that they appear to be documents which, it is not unreasonable to suppose, do contain information which may support the defendants’ case. Therefore I think that the further affidavit must be made with regard to them.

This judgment does not at all determine whether the defendants can have inspection of them after the further affidavit has been made, for after the affidavit has been made and privilege in respect of them has been claimed, on the ground that they are sworn to be matters of negotiation for a compromise, it may be that the defendants will have no right to inspect them. That is a matter as to which I say nothing; I give no opinion about it. The further affidavit must be made on the ground which I have mentioned; but with regard to documents No. 3, I think it impossible to say that the plaintiffs ought in their first affidavit to have set forth documents which are not in either their power or their control, and therefore, on the ground that the defendants, who now ask for a further affidavit with regard to them, fail to

(1882) 11 Q.B.D. 55 Page 66

shew that they are documents which ought to have been mentioned in the first affidavit, no further affidavit is to be made as to them. I repeat that our present judgment does not convey any opinion as to the effect of the documents when they have been disclosed, and when they are offered in evidence at the trial.

Solicitors for plaintiffs: Freshfields & Williams.

Solictors for defendants: C. & S. Harrison & Co.

J. E. H.

*134 Walter Gibbins and Edith Rose Proctor

Court of Criminal Appeal

22 April 1918

(1919) 13 Cr. App. R. 134

Mr. Justice Darling , Mr. Justice McCardie and Mr. Justice Salter

April 22, 1918

The discretion of a judge at the trial whether defendants jointly indicted should be tried separately must be judicially exercised. The head-note to Lee and Parkes, above, p. 39, is too widely stated.

The neglect by a father of a child living with him may be so great, even though he provides the funds for the child’s maintenance, as to amount to murder, if through neglect the child dies. A woman living with a man in such circumstances, if she has accepted charge of the child, may also be guilty of murder.

These were appeals against conviction on matters of law. Appellants were convicted, on the 18th March, 1918, at the Leeds Assizes, before Roche J., of murder, and were sentenced to death.

R. A. Bateman for appellant Gibbins (under s. 10 of the Criminal Appeal Act ), who was not present. The appellants were convicted of the murder of Gibbins’s daughter Nelly, a girl of seven, it being alleged that she died of starvation as the result of a long course of cruelty and neglect at the hands of both appellants. Before the trial opened application was made on behalf of both prisoners that they should be tried separately; this application was refused, and I submit that Gibbins’s trial was prejudiced thereby, especially as this was a case of mutual recrimination, each prisoner seeking to put the blame on the other: Lee and Parkes, 13 Cr. App. R. 39, 1917 .

[ Darling J.: The head-note there goes beyond the decision of the Court, which laid down no rule of general application.]

Moreover, evidence of statements and conversations was given *135 which were admissible against one appellant and not against the other.

[ Darling J.: The matter is one for the discretion of the judge and unless the discretion is not exercised judicially this Court will not interfere: Yousry, 11 Cr. App. R. 13, 1914 .]

The evidence was not sufficient to support a verdict of murder; it should have been manslaughter only. Gibbins was in regular employment earning good wages, and he gave evidence that he gave the whole of them to Proctor. It was his duty to provide the money; it was hers to provide food. The child was not hers, but she was living with Gibbins, and no doubt had assumed some duty towards the deceased child, which might justify a verdict of murder against her; seeSaunders, 7 C. & P. 277, 1836 . Gibbins was out at work all day, and was told that the child was all right. The prosecution must prove that he knew of the child’s condition, and, to justify a verdict of murder, that he took an active part. On the evidence the verdict should have been guilty of manslaughter: Bubb and Hook, 4 Cox C. C. 457, 1850 . No intent to kill was proved.

[ McCardie J. referred to Conde, 10 Cox C. C. 547, 1867 .]

A photograph of the deceased child was put in evidence which was taken after the child had been buried for a month. It was said that there had been no decomposition, but the evidence was most prejudicial to the prisoners, and therefore should have been excluded: Christie, 1914, A. C. 545; 83 L. J. K. B. 1097; 111 L. T. 220; 78 J. P. 321; 24 Cox C. C. 249; 58 S. J. 515; 30 T. L. R. 471; 10 Cr. App. R. 141 .

F. J. O. Coddington for appellant Proctor (under s. 10 of the Criminal Appeal Act ), who was present. A separate trial was especially necessary in the interests of Proctor, and the refusal to grant a separate trial amounted to a miscarriage of justice.

The judge misdirected the jury on the distinction between murder and manslaughter. There must be a positive withholding of food which is available to found a verdict of murder here. If money is given and not food, a verdict of murder would only be *136 justified where the money is ear-marked for the particular person. The legal obligation to maintain is on the husband, and therefore Proctor could not be convicted of manslaughter: Forsyth , Russell on Crimes, 7th ed., 671, in 1899. She was de facto the wife of Gibbins, and in such cases the wife has been held to be the servant of the husband. Unless she withheld food actually supplied she cannot be convicted of manslaughter, and probably not of murder: Squire , 1 Russ. Cr., 7th ed., 668, 670, in 1799; Saunders , above; Instan, 1893, 1 Q. B. 450; 62 L. J. M. C. 86; 5 R. 248; 68 L. T. 420; 41 W. R. 368; 17 Cox C. C. 602; 57 J. P. 282; C. C. R. ; Lee and Parkes , above.

Shortt, K.C. and Sir Robert Aske for the Crown, were not called upon.

Darling J.:

The two appellants were indicted and tried together for the wilful murder of Nelly Gibbins, the daughter of Gibbins. The facts were that Gibbins’s wife had left him, and he was living in adultery with Proctor. There were several children, one of whom was the child of Proctor, in the house. He earned good wages, which he brought home and gave to Proctor to maintain the house and those in it. There is no evidence that there was not enough to keep them all in health. And all were looked after except one, namely Nelly, who was starved to death. Her organs were healthy, and there was no reason why she should have died if she had been supplied with food. She was kept upstairs apart from the others, and there was evidence that Proctor hated her and cursed her, from which the jury could infer that she had a very strong interest in her death.

When they were put on their trial both counsel applied that the prisoners should be tried separately. Thereupon Roche J. said, in answer to the suggestion that it would be impossible to separate the evidence against the two, “I have no doubt it will be done, and can be done without any detriment.” The trial proceeded after that. The rule is, that it is a matter for the discretion of the judge at the trial whether two people jointly indicted should be tried together or separately. But the judge must exercise his discretion judicially. If he has done so this Court will not interfere, but that is subject to this qualification. If it appeared to this Court that a miscarriage of justice had resulted *137 from the prisoners being tried together it would quash the conviction. Here it is clear that Roche J. exercised his discretion; he separated the defences carefully, pointing out what was evidence against one prisoner, and not against the other. It is not enough to say that counsel could have defended them more easily if they had been tried separately. There is no ground for thinking that there was any miscarriage of justice. There may have been many things made clear to the jury which would not have been made clear if the prosecution had been embarrassed by having to deal with the two cases separately. The whole story was before the jury of what went on in the house where the two appellants lived together. There is no ground for thinking that either of them was improperly prejudiced by their being tried together.

Several small criticisms have been made which it is not necessary to consider, since there is nothing to lead us to suppose that the verdict was arrived at wrongly in consequence of these matters. There remains the question whether the judge misdirected the jury on a point of law. Had he done so on a really material point we should quash the conviction, unless it came within the proviso to s. 4 (1) . But the misdirection here complained of is on a crucial matter, where he told the jury what they must find in order to convict either prisoner of murder. He said, “The charge against the prisoners is, in the first place, that they killed this child Nelly, or caused her death, by malice aforethought. That means they intended she should die and acted so as to produce that result.” If that is a misdirection it is one in favour of the prisoners. “In dealing with that you will of course remember, and it is my duty to tell you, that very rarely will people say when they do such a thing that they intended to produce such a result. Sometimes they do say that they killed a person and intended to do so, but rarely, and as a rule you have to judge of persons’ intentions from their acts, they being reasonable persons, and there is no suggestion here at all that either of these prisoners was in any way insane, being reasonable persons you have to deal with, you must judge of them as understanding the nature of the act they are doing, and if you think that one or other of those prisoners wilfully and intentionally withheld food from that child so as to cause her to weaken and to cause her grievous bodily injury, as the result of which she died, it is not necessary for you to find that she intended or he intended to kill the child *138 then and there. It is enough if you find that he or she intended to set up such a set of facts by withholding food or anything as would in the ordinary course of nature lead gradually but surely to her death.” In our opinion that direction simply fulfils the conditions which a judge should observe in directing the jury in such a case as this.

There are other places where this is alluded to; for instance, where the judge said: “As she could see it,” that is Nelly’s condition, “and as no steps were taken by her it is consistent, and only consistent—that is the submission—with the intention to work most grievous bodily harm to this child, and to bring about her death. If you think so, gentlemen, serious as it is, it will be your duty to find a verdict of murder.” Now for this there is ample authority. It is sufficient to refer to Bubb and Hook , where Williams J. said: “It remains for me to explain to what extent she is responsible. If the omission or neglect to perform the duty was malicious, then the indictment would be supported, and the crime of murder would be made out against the prisoner; but if the omission or neglect were simply culpable, but not arising from a malicious motive on the part of the prisoner, then, though it would be your duty to find her guilty, it should be of manslaughter only. And here it becomes necessary to explain what is meant by the expression malicious, which is thus used. If the omission to provide necessary food or raiment was accompanied with an intention to cause the death of the child, or to cause some serious bodily injury to it, then it would be malicious in the sense imputed by this indictment, and in a case of this kind it is difficult, if not impossible, to understand how a person who contemplated doing serious bodily injury to the child by the deprivation of food, could have meditated anything else than causing its death.” The word used is “contemplated,” but what has to be proved is an intention to do grievous bodily injury. In our opinion the judge left the question correctly to the jury, and there is no ground for interfering with the convictions for those reasons.

It has been said that there ought not to have been a finding of guilty of murder against Gibbins. The Court agrees that the evidence was less against Gibbins than Proctor, Gibbins gave her money, and is far as we can see it was sufficient to provide for the wants of themselves and all the children. But he lived in the house and the child was his own, a little girl of seven, and *139 he grossly neglected the child. He must have known what her condition was if he saw her, for she was little more than a skeleton. He is in this dilemma; if he did not see her the jury might well infer that he did not care if she died; if he did he must have known what was going on. The question is whether there was evidence that he so conducted himself as to shew that he desired that grievous bodily injury should be done to the child. He cannot pretend that he shewed any solicitude for her. He knew that Proctor hated her, knew that she was ill and that no doctor had been called in, and the jury may have come to the conclusion that he was so infatuated with Proctor, and so afraid of offending her, that he preferred that the child should starve to death rather than that he should be exposed to any injury or unpleasantness from Proctor. It is unnecessary to say more than that there was evidence that Gibbins did desire that grievous bodily harm should be done to the child; he did not interfere in what was being done, and he comes within the definition which I have read, and is therefore guilty of murder.

The case of Proctor is plainer. She had charge of the child. She was under no obligation to do so or to live with Gibbins, but she did so, and receiving money, as it is admitted she did, for the purpose of supplying food, her duty was to see that the child was properly fed and looked after, and to see that she had medical attention if necessary. We agree with what Lord Coleridge C.J. said in Instan , above: “There is no case directly in point, but it would be a slur upon, and a discredit to the administration of, justice in this country if there were any doubt as to the legal principle, or as to the present case being within it. The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her; that legal duty the prisoner has wilfully and deliberately left unperformed, with the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty.” Here Proctor took upon herself the moral obligation of looking after the children; she was de facto , though not de jure , the wife of Gibbins and had excluded the child’s own mother. She neglected the child undoubtedly, and the evidence shews that as a result the child died. So a verdict of manslaughter at least was inevitable.

But it is necessary to go further and see whether it was murder. *140 The evidence is that she had plenty of money; that she kept the child upstairs insufficiently supplied with food; that she hated the child and hit her. There is also evidence that when the child died of starvation both appellants took part in hiding the body and preventing the death from being known. They concocted a story that she had been sent away and was still alive. There is evidence that Proctor told Gibbins to bury the child out of sight, and that he did so in the brickyard where he worked. The jury came to the conclusion that she had done more than wickedly neglect the child; she had deliberately withheld food from it, and therefore we come to the conclusion that there was evidence which justified the jury in returning a verdict against her, not merely of manslaughter, but of murder. The appeals are therefore dismissed.

Appeals dismissed .

A. L. B. T.

*141

Permanent Stay

• Connelly v DPP [1964] AC 1254
• Lee Ming Tee (No 1) (2001) 4 HKCFAR 133; Yip Kai Foon [1999] 1 HKLRD 277; Ng Chun To Raymond [2013] 5 HKC 390
• Shum Chiu [2011] 2 HKLRD 746 [deliberate infringement by ICAC of co-defendant’s legal professional privilege]
• Ng Wai Man [1998] 2 HKLRD 1 [accomplice’s pre-trial conduct and general unreliability – delay – adverse publicity]
• double jeopardy – Yeung Chun Pong & Ors v SfJ (2009) 12 HKCFAR 867 [a magistrates’ court has no jurisdiction to entertain autrefois pleas – it only has an implied power to stay committal proceedings to prevent abuse of process – the autrefois pleas are preferably made before the High Court where stay of proceedings under rule against double jeopardy can be applied – Yeung Chun Pong & Ors v SfJ (2006) 9 HKCFAR 836]

Prohibition of reporting the proceeding

• R v Mohamed Hashim Shamsudin (unrep., HCCC 262/1986, Roberts CJ, 14 January 1987)

Disclosure

• Lee Ming Tee (No 2) (2003) 6 HKCFAR 336
• Chan Kau Tai [2006] 1 HKLRD 400

Agreed Facts

• should be read out – silent trials are not permitted – R v Kwok Chi Kwan [2003] 1 HKC 696

Cross-examinations

• antecedent statement by accused – co-accused entitled to cross-examine accused on statement – prosecution counsel not entitled to do so – Law Chung Ki & Anor (2005) 8 HKCFAR 701
• vulnerable witnesses – Harjani, Kishore Mohanlal [2017] 3 HKLRD 1
• as to veracity – Wong Sau Ming (2003) 6 HKCFAR 135
• confessions – co-accused – prosecution sought to compare differences in confessions for purpose of refuting allegation that confessions concocted – not permissible – Wong Wai Man & Ors (2000) 3 HKCFAR 322

Closing speeches

• Leung Chun Kit Brandon [2018] HKCFA 30

Directions

• Summary of overall principles – Lin Ping Keung (2005) 8 HKCFAR 52; 譚曙光 (unrep., CACC 30/2016, Pang JA, 6 September 2016)
• “Fundamental that in a criminal trial before a jury, every defendant is entitled to have his defence – however implausible, even if it appears to be an affront to common sense – fairly and accurately put to the jury for its consideration” – Hon Tsz Yin [2011] 5 HKLRD 447, para. 63
• Burden and standard of proof – Wong Wai Man (No 2) [2003] 4 HKC 517 [perhaps in many cases, the standard directions as to burden and standard of proof may be enough,” it is sometimes essential to give special directions modelled upon R v Liberato (1985) 159 CLR 507 especially when they jury is clearly in some difficulty as to the treatment of the prosecution and defence evidence] – jury should not be told in such absolute terms that it if it was not sure (that is, not satisfied) that what the defence witnesses were saying was actually true, then it hard to disregard such evidence for all purposes.
• Wrong to direct jury that the police officers are likely to be more credible and reliable than other witnesses because of the possible consequences to them – Lee Fuk Hing (2004) 7 HKCFAR 600
• Inference from circumstantial evidence – Tang Kwok Wah, Dixon (2002) 5 HKCFAR 209; Nguyen Anh Nga (2017) 20 HKCFAR 149
• When materials prejudicial to the defendant are placed before the jury – 嚴文浩 [2018] HKCA 72, para. 46
• Directions on uncharged acts – 郭慶 [2010] 3 HKLRD 761
• Direction on alternative verdicts – Ho Hoi Shing (2008) 11 HKCFAR 354
• Good character direction – Tang Siu Man (No 2) (1997-1998) 1 HKCFAR 107
• Lies direction – Mo Shiu Shing [1999] 2 HKLRD 155; Chan Chun Tak [1999] 1 HKC 169; Yuen Kwai Choi (2003) 6 HKCFAR 113; Jim Fai (2006) 9 HKCFAR 85
• Other post-offence conducts – Must the there be evidence from the defence to suggest the “other possible innocent explanations”? 藍順財 (unrep., CACC 186/2017, Yeung VP, 24 July 2018)
• Departing from specimen directions? Yeung Chun Hin [2018] HKCA 712 [per Macrae VP “19. … The danger, with respect, of judges departing from the terms of a carefully crafted Specimen Direction, particularly one which prescribes (as it does here) a structured process of analysis for the jury in its fact-finding task, is that the result risks losing both the content and the emphasis of the direction. Furthermore, where the highest courts of various common law jurisdictions, including our own, have wrestled over many years with the problem of how to direct juries where admissions are said to have come about in circumstances of oppression and have produced a Specimen Direction specifically designed to address that problem, a departure from its terms is a particularly unwise course. The suggested Specimen Direction sets out a progressive step‑by‑step approach for the jury, who might otherwise be confused by the interaction between an assessment of the truth and reliability of a confession and any circumstances of oppression which might impinge on that assessment.”] c.f. Chung Ka Lun [2018] 4 HKLRD 229 [observations that in cases involving conspiracy as opposed to substantive trafficking, para.36.1(c) of Specimen Directions in Jury Trials unnecessary and confusing – suggesting that specimen directions are not perfect and by no means straitjackets]; Tang Siu Man (No 2) (1997-1998) 1 HKCFAR 107 [“(2) Appellate courts had strained to avoid legalism in criminal practice so as not to tie up trial judges with artificial rules of practice. While such rules sometimes avoided real injustice and provided uniformity, they had not evolved simply for this purpose, nor, did they lessen the burden on appeal courts. They also tended to make the trial process mechanical. The modern tendency was to limit the range of compulsory standard directions and rules purporting to cover all cases must necessarily be scrutinised with care ( R v Hester [1973] AC 296 , Vetrovec v The Queen (1982) 136 DLR (3d) 89 and McKinney v The Queen (1990-91) 171 CLR 468 considered). (See pp.120F-121C.)”]

Jury

• No right to elect for a jury trial under Basic Law – Chiang Lily v SfJ (2010) 13 HKCFAR 208
• Sleeping jurors – R v Tam Chung Shing & Ors [1988] HKC 28
• contrary to direction of judge, jury searched Internet before returning verdict and knew defendant on retrial – unfair and prejudicial to defendant – directions regarding use of Internet – warning that court would refer jurors who carried out Internet research contrary to judge’s directions to Department of Justice for possible prosecution for contempt – Chan Huandi [2016] 2 HKLRD 384

Disposition of a criminal case

• S v Recorder of Manchester [1971] AC 481 – the two meanings of “conviction” – followed in SfJ v Yuen Lit Ping [1999] 1 HKC 476

Presumption of innocence

• Lam Kwong Wai & Anor (2006) 9 HKCFAR 574; Ng Po On & Anor (2008) 11 HKCFAR 91

Right to Silence

• Lee Fuk Hing (2004) 7 HKCFAR 600
• whether could be circumstances in which defendants’ failure to give evidence could be regarded as giving prosecution case more probative force – Li Defan & Anor (2002) 5 HKCFAR 320
• Cross-examination of defendant infringing right to silence yields inadmissible evidence – where sole and critical issue at trial and on appeal is the defendant’s credibility, that amounts to material irregularity – Ata Asaf (2016) 19 HKCFAR 225