Lord Ackner:

This is an appeal by special leave from a judgment of the Court of Appeal of Hong Kong (Yang CJ, Kempster JA and Macdougall J) given on 4 May 1988, dismissing the appellants'appeals against their convictions of murder on 13 November 1987, after a trial by jury presided over by Addison J. At the conclusion of the hearing on 2 November their Lordships agreed humbly to advise Her Majesty that the appeals ought to be allowed, the convictions quashed and that there be no order for retrial, for reasons to be given later. They now give their reasons.

The Facts

The facts out of which the prosecution arose can be shortly stated. At about 2.30 p.m. on 29 August 1989 a twelve year old boy called Kwan Ho-lun saw four men chasing the victim Peng Shao-chiang on the Yuen Chau Kok Temporary Housing Estate Shatin. At least three of the men had knives and were chopping at him as they ran. As a result he suffered severe injuries and later died on the same afternoon in hospital.

When the attack took place there were several police officers in the vicinity who gave chase. One of the men Leung Chi-fai, surrendered, but the others escaped. On 12 December 1986 Leung was indicted with murder, as was Keung Siu-ming, who had been subsequently arrested. On 20 March 1987 Leung pleaded not guilty, was convicted of murder and sentenced to death. Keung pleaded guilty to manslaughter, which plea was accepted by the prosecution.

At the appellants' trial the prosecution called Leung who, as the learned trial Judge said at an early stage in his summing-up, was "at present hoping for a reprieve of his sentence". It was essentially upon his evidence that the Crown relied. Accordingly the learned Judge, in his very careful summing up to the jury, said that if they did not believe his evidence or thought he might by lying when he said that both the appellants were present and participated in the knife attack, they must acquit. Leung was an accomplice. Accordingly the Judge warned the jury of the danger which existed in acting on his evidence in the absence of corroboration. This warning was particularly important in this case, since Leung in giving evidence had been obliged to concede that on certain important matters he had lied. His testimony which is hereafter referred to in some detail was thus highly suspect.

The Judge informed the jury that there was material which was capable of corroborating Leung's evidence. It was therefore for them to decide whether they accepted such evidence as corroboration, that is, evidence which implicated the appellants, confirming in some material particular not only that the crime had been committed, but also that it had been committed by them.

The short issue in this appeal is whether the trial Judge correctly directed the jury that there was material capable of corroborating Leung's evidence. If the learned Judge was in error then it was accepted by the Crown that the convictions must be quashed. The only remaining issue would then be - would it be appropriate to remit the matter to the Court of Appeal of Hong Kong for consideration as to whether or not there should be a new trial?

The evidence said to be capable of corroborating Leung's testimony

At the trial the following, inter alia were agreed facts and were so recorded in a written statement:

1. On 30 August 1986 the names of Chan Kwok-keung, identity card No. E456847(1) and Chan Kar-shing, identity card No. C259256(6) were placed on the Hong Kong Immigration Department Black list (the stop and detain list). All immigration counters throughout Hong Kong were informed to stop and detain either or both of the aforesaid persons. The names of both accused were on this list as at 5 June 1987.

2. At about 9.00 p.m. on 5 June 1987 the accused Chan Kwok-keung and Chan Kar-shing were located as stowaways on board a ship named Wai Hong No. 1 which was at the time on route from Hong Kong to Macau. Both accused were placed in custody and at about 11.30 p.m. on 5 June 1987 w