Poon Wen and Another v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 44 OF 1973

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Coram : Full Court (Huggins, McMullin & Pickering JJ.)

Date : 11th May 1973.

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JUDGMENT

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McMullin J. :

1.  It was the case for the Crown that the two appellants in the early hours of the morning of the 30th of July 1972 became involved, at the Heng Loong Lau Restaurant in the Castle Peak Road, in an altercation with a number of persons including the deceased and WONG Bun the complainant on the fourth charge. The quarrel had to do with a dispute between the first appellant and WONG Bun concerning a debt arising from dog racing. This episode ended after a few minutes without serious trouble. It was alleged by the Crown that the two appellants and a number of companions later in the same night armed themselves with knives and weapons of the like nature and went looking for the people who had interfered with them and that at about 5.30 a.m. they came upon the deceased, WONG Bun, and a number of persons including the complainants on the other three wounding charges in an opium divan at No. 78, Woosung Street, Kowloon. It was the prosecution case that this was a punitive raid carried out by desperate armed men against the unsuspecting smokers in that divan and it was not in dispute that the deceased received the injuries from which he died on that night at that place and that the other complainants received their injuries on the same occasion. A number of the occupants of the divan including WONG Bun gave evidence and described how the two appellants and a number of others had entered the premises armed with knives and had at once set upon the occupants without any parley. All the occupants claimed to have been themselves unarmed.

2.  The defence of both appellants was that, following upon the altercation at the restaurant described by the prosecution witnesses, they had gone joy riding in the first appellant’s motor-car and that the second appellant had invited the first appellant to go with him to smoke opium at the divan at Woosung Street. Once inside they were approached by WONG Bun who renewed the quarrel about the money which was allegedly owing by the first appellant to him and both appellants described how this quarrel developed into an attack upon them by more than ten of the occupants. The attackers used wooden poles, knives and at least one triangular file. According to both appellants, in the course of this fight the deceased, whom both of them knew, came up to intervene on their behalf and to try to pacify the assailants. According to them, he was set upon by some of those assailants who resented his interfering in a matter which was not his concern. The first appellant said that the deceased had actually managed to disarm one of the assailants and that upon being attacked himself he dropped the knife, which he had taken from that assailant, upon the floor. The first appellant then picked it up and used it to defend himself as he made his escape from the premises. A somewhat similar account was given by the second appellant who said that he had used a wooden pole to disarm one of the assailants and to possess himself of the knife held by that person. He too wielded this knife as he made his escape. Neither of them denied that some of the injuries complained of by the complainants might have been caused by them in the course of this dramatic escape. Both of them denied being at the premises in the company of any other persons armed or otherwise.

3.  A peculiar feature of the evidence was that, whereas the post mortem examination revealed that the deceased had died as a result of stab wounds in the back which had been inflicted by an implement in the nature of a triangular file, none of the prosecution witnesses referred to any weapons other than knives when describing the entrance of the appellants and their gang and both appellants were clearly described as being in possession of knives. In view of this evidence the learned trial judge carefully warned the jury that the evidence showed that neither of the appellants could have been the actual killer of the deceased. He directed them that they could not convict either of the appellants on the murder charge unless they were satisfied that the killing had resulted from the act of one or more of a gang of individuals which included the accused all of whom had gone to the divan in pursuance of a common design to attack persons therein and with the intention causing either death or grievous bodily harm to such persons. It is clear that the implications of the doctrine of common intention were very much in the judge’s mind and that he had given the most careful consideration to the manner in which that doctrine could best be put to the jury in the circumstances revealed by the evidence to avoid confusing them with hypothetical possibilities. Thus in the early part of his summing-up, having defined the crime of murder and explained the elements thereof, he went on to say:

“Neither accident nor self-defence has been suggested by the defence in this case and it has not arisen naturally from the evidence adduced by the Crown and therefore there is no necessity for me to talk to you about it. But we will perhaps in this case be more concerned with whether or not there has been a killing by these accused and whether or not the Crown has shown that that killing was accompanied by malice aforethought.”

Shortly after that, he carefully outlined the meaning of the doctrine of common intent and it need only be said that he did so in terms which are beyond criticism. Having done that, however, he went on to say:

“In our particular case, Members of the Jury, we do not know who struck the fatal blows. The evidence suggests that whoever struck the fatal blows it was not either of the accused persons so that the case for the Crown against each accused stands or falls on this doctrine of common intention and before you find either accused guilty you must be satisfied so that you are sure that that individual took part with another or others in an attack on the people in the divan, that he himself shared with the others in a common design to cause really serious hurt, that death resulted from the attack. As soon as you are – if you are – sure of that then in this case there is no room for any verdict other than murder. Such questions as questions of provocation, self-defence do not arise in this particular case because by proving the prior agreement, by sharing the common intention to cause really serious hurt, the Crown has negatived it. If the Crown fails to prove common intent the accused are acquitted without your having to examine them.”

We must say at once that this direction was clearly given after considerable thought in an effort to clarify the essential issues and to eliminate unnecessary and confusing questions. Furthermore it was no doubt the intention to indicate that the jury should not convict and ought to acquit unless they were satisfied that the story given by the prosecution witnesses was substantially correct in detail. But it would seem that the judge in a laudable attempt to see that the jury did not indulge in idle speculation may well have confused them by what is in effect a dangerous over-simplication. It was no doubt true to say that if the Crown had proved that the death had resulted from the act of one of the parties committed pursuant to a prior agreement by which all shared in a common intention to cause really serious hurt, then, in those circumstances, provocation and self-defence could not arise. They could not arise because the accepted evidence would have negatived them. But if there was anything on the evidence which could conceivably give rise to any such defence the jury were in duty bound to consider such evidence before coming to a conclusion as to whether or not the death had resulted from an act executed in pursuance of such common intent. Patently however, the evidence given by both appellants, while denying that they were part of an avenging gang, did specifically refer to an attack upon themselves which had resulted in their doing whatever they did out of necessary self-defence. It was not necessary for the jury either to accept the prosecution case in toto or to accept the defence case in toto; they were entitled to accept the prosecution evidence substantially while yet rejecting the prosecution witnesses’ story that nothing in the nature of a fight had occurred in the divan. Indeed, upon the evidence before them, it is difficult to see how they could have accepted the prosecution’s story in every detail since all the complainants denied being armed and it was undoubtedly the case that both appellants did receive some injuries and the doctor’s evidence showed that the injuries received by the first appellant could have been inflicted upon him by some such instrument as a triangular file. In addition it was the first appellant’s case that the deceased had actually been attacked by someone in the divan with a triangular file. That being the case it was for the jury to decide, as juries in all such cases must decide, what the factual picture was which they were prepared to accept as shown beyond reasonable doubt, due regard having been paid to any matter in the defence’ story capable of raising a reasonable doubt concerning the entire veracity of the prosecution witnesses. In order therefore that they should be satisfied that it was safe to convict the appellants on the basis of common intent with the killer it was essential that the jury should have regard to what the appellants had said in order to decide whether it was a reasonable possibility that whoever had inflicted the fatal wounds had done so out of necessity in defending himself against a counter-attack.

4.  No doubt the learned judge realised that the jury could not find that either of the appellants had struck the fatal blows without flying in the face of the evidence, both that of the prosecution and that of the defence, by indulging in speculation which was not warranted by anything in the testimony. To that extent his direction that they should disregard self-defence was, and was no doubt intended to be, favourable to the appellants. But since the jury had been told that they might only convict on the basis of common intent and only if they were satisfied that one of the appellants’ companions had struck the fatal blows, the direction on self-defence overlooked the possibility that the jury might accept in part the evidence for the prosecution and in part that for the defence. They might therefore conclude that the appellants did raid the divan with armed companions but that they encountered spirited resistance in excess of what was predictable. If they did that then, in view of the fact that the appellants actually did claim to have been defending themselves against serious attack, self-defence was clearly in the “defence picture” and, if the jury were nevertheless to convict on the basis of common intention, they could only legitimately do so having discounted as unreasonable the possibility that the unknown person who had killed the deceased had himself been driven to kill out of necessity. If the jury felt that there might be any truth at all in the story placed before them by the appellants, then, while rejecting the appellants’ disclaimers of being members of an attacking gang, the jury might, had they not been so directed, have thought it necessary to attend to the possibility that, since all the members of the gang had been surprised by armed resistance on the part of the inmates of the divan, the actual killer might have been equally hard pressed as the appellants claimed to have been. It was perhaps implicit in the direction that the possibility of a killing in self-defence must necessarily break the causal connection between the death and the common design but it would have been better if that had been made explicit. Left to them in the way that it was, it may have seemed to the jury that once they had found a common design, shared by all participants, at any stage of the attack to cause death or grievous bodily harm then all questions of self-defence became thereafter irrelevant. The jury’s primary task was to decide whether the deceased had been killed without justification by somebody who in so doing had intended either to kill or to cause grievous bodily harm and, secondly, whether at the moment that the fatal injuries were inflicted the appellants were still acting pursuant to a common design that that should be done. In this connection a further difficulty is raised by the rather perplexing fact that although there was evidence that both appellants chopped WONG Yan (the victim in count 2) and that both chopped LAM Wai-man (the victim in count 3) and that the first appellant chopped WONG Bun (the victim in count 4) and CHAN Hon (the victim in count 5) the learned judge nevertheless told the jury that they could not convict on any of those counts unless they were satisfied that the appellants had shared with all other members of the attacking group a common intention to attack persons in the divan and that as a result these woundings had occurred. Since the earlier direction had coupled the necessity for the Crown to show common intention in relation to the murder charge with the peremptory withdrawal from the jury of the need to consider self-defence or provocation it would seem that the later direction on the woundings, although it was no doubt intended to put the matter at its most favourable for the appellants, might once again have left the jury under the impression that provided the Crown had proved that a common intention to commit grievous bodily harm had existed between all the attackers at any stage then notwithstanding that the intended victims may have turned the tables on them in the later stages it was not open to the appellants to allege self-defence. Clearly, however, self-defence was an issue at least upon those charges. But if that be so upon those charges the matter does not end there. If it was a reasonable possibility that either of the appellants was legitimately defending himself against serious attack at the moment when the deceased received his fatal injuries then any common intention which may have bound them to the acts of the killer prior to that moment may have been “relegated into a matter of past history by an overwhelming supervening event” in the form of a counter-attack which introduced a wholly new set of circumstances. If that was the situation prior to the deceased receiving his fatal injuries and if thereafter either of the appellants did everything that he did in order to escape from the premises and prevent serious injury to himself it is difficult to see how he could be convicted of murder on the basis of common intent with the killer whatever the situation of the latter may have been. For these reasons we take the view that it was wrong to direct the jury that questions of provocation and self-defence did not arise in the case. Self-defence was clearly raised and ought to have been attended to notwithstanding that counsel for the appellant, who had originally made this a ground of appeal, abandoned it in the course of the hearing. We take the view that what was said amounted to a misdirection of substance. When one places that misdirection together with the failure to point out that not only did the evidence show that neither of the appellants possessed a weapon capable of inflicting the fatal injuries (this was indeed pointed out by the judge) but also that the evidence seemed to indicate that none of the persons alleged by the prosecution witnesses to have accompanied the appellants was equipped with any such weapon, we are of the opinion that the convictions on all counts are unsatisfactory and ought not be allowed to stand. Treating these applications as the hearing of the appeals we allow the appeals and the convictions are quashed.

Patrick Yu instructed by Rowdget W. Young & Co. for both appellants.

Duffy C.C. for respondent.