The Queen v. Chau Chun Wai

CACC000167/1989

BETWEEN

------------------------

Coram: Hon Silke, Atg CJ, Kempster, JA and Bewley, J

Date of Hearing: 8 February 1990

Date of Judgment: 8 February 1990

-----------------

JUDGMENT

-----------------

Kempster, JA :

1. This is the judgment of the Court.

2. On 20 March 1989 on the verdicts of a jury Chau Chun Wai was convicted by Barnes J of two offences. The first was attempted murder and the second possession of arms with intent to endanger life. Against both convictions Chau seeks leave to appeal.

3. Evidence called at trial on behalf of the Crown was to the effect that on 12 September 1988 the applicant and Yim Kwok Ming, who were well acquainted, were seated at desks opposite to each other in an office on the twelfth floor of Good Hope Building, Mongkok, which they shared. They were arguing heatedly about money. At some time between 11 a.m. and 12 noon the applicant leaned back in his chair, opened a drawer of his desk and took out a small pistol. He then stood up and discharged it at Yin. The applicant was some three to four feet from Yim but, if he had held the pistol in the particular manner which he described in relation to a different incident in the course of the evidence which he gave, the muzzle would have been only five to seven inches from Yim's chest. Yim felt pain, saw blood and moved into the adjacent sitting room. The applicant followed, saying : -

"I want to gun you down, you pig, you dog!  I'm prepared to die and I want you to accompany me!"

Yim pleaded for his life. To this the applicant agreed upon Yim's promise to pay $10,000 to his mother. The applicant then put the pistol into the righthand pocket of the white trousers he was wearing and left.

4. Yim dialled 999. A witness, Cheung Chuen, had seen Yim and the applicant emerge from the office; Yim clutching his bleeding chest and the applicant holding something white near or in the waistband of his trousers. The applicant said to him :-

"Ah Kai, don't say anything!"

5. When the police arrived, Yim identified nobody as his assailant and gave a story of having been fired at through a screen. This account was totally different from that which he gave on oath at trial.

6. The substance of the applicant's evidence was that he was not present at the material time or place.

7. Yim underwent surgery. A .22 calibre bullet which had penetrated the upper and lower lobes of his left lung was removed from a position some six inches from his heart. Its path was consistent with it having been fired by a standing man while the victim was seated.

8. The applicant was arrested in the early hours of the following morning. He was taken his home where the police took possession of the pair of white trousers which he was wearing. In the righthand pocket were found particles having the characteristics of gun shot residue. There was thus ample evidence which, if accepted by the jury, warranted the applicant's conviction on both counts of the indictment. None the less four points, perhaps deriving from observations of the Directions Judge made at an early stage, are courageously advanced as rendering the convictions unsafe or unsatisfactory.

9. The first is that the trial judge's directions in summing-up were such as to preclude the jury from considering the essential element of the first count, namely whether or not the applicant intended to kill Yim. The passages relied upon include : -

"... can you see how the firer of the weapon could have any intent other than to kill the person at whom he fires? ... if he is a sane person. .. Therefore the only real issue in this case becomes: Has it been proved beyond reasonable doubt that the defendant fired the shot?"

But the judge had introduced his comments on the evidence with an appropriate caution : -

"It is not for me to say how you should view the evidence. ... You are at liberty to accept part whilst at the same time rejecting part of a witness' evidence if your common-sense, your experience of the world and your knowledge of human nature tell you that that is what you should do.... With regard to any comments I make on matters of fact, you are not bound to adopt them at all. Quite the contrary, if you do not agree with any comment I make on a matter of fact, you are duty wound to ignore that comment".

10. To quote Lord Reading, CJ in R v O'Donnell (1917) 12 Cr App R 219 at p 221 : -

"... As this court has said on many occasions ... a judge, when directing a jury, is clearly entitled to express his opinion on the facts of the case, provided that he leaves the issues of fact to the jury to determine. ... He may express a view that the facts ought to be dealt with in a particular way, or not to be accepted by the jury at all. He is entitled to tell the jury that the prisoner's story is a remarkable one, or that it differs from accounts which he has given of the same matter on other occasions ... No doubt the judge here express himself strongly on the case, but he left the issues of fact to the jury for their decision, and therefore this point also fails".

We reach a like conclusion in relation to this ground of appeal.

11. The second submission made on behalf of the applicant is that the trial judge failed to leave to the jury the opportunity of returning an alternative verdict of shooting with intent pursuant to s 17 of the Offences Against the Person Ordinance (Cap 212) and s 51(2) of the Criminal Procedure Ordinance (Cap 221). In this regard we would observe that, according to our papers and those of Mr Plowman, who appears for the applicant, no suggestion was made at trial that the jury should consider returning this lesser verdict. Having regard to the unambiguous and complete direction with the judge gave to the jury that, if they were to convict, they had to be satisfied both that grievous bodily harm had been caused to the victim and that the shot had been fired by the applicant with an intent to kill, we incline to the view that the applicant has no legitimate grounds for complaint on this score. We would further repeat a passage mentioned in the course of argument : -

"It is of the first importance that a man charged with an offence should know with certainty what it is he may be convicted of. No court should be encouraged to cast around to see whether somehow or other the words of the indictment can be found to contain by some arguable implication the seeds of some other offence".

per Phillimore LJ in R v Woods [1969] 1 QB 447 at p 451.

12. Following an enquiry from the court Mr Plowman indicated that he proposed to invite us to substitute a conviction for the lesser count pursuant to our powers under s 83A of the Criminal Procedure Ordinance. That indication was not followed up.

13. Not surprisingly the trial judge directed the jury that though they were bound to consider each charge separately a finding of guilt on the first count of attempted murder would necessarily encompass, a fortiori, a finding that at the material time and place the applicant had been possessed of a firearm with intent to endanger life and was therefore guilty of the second and less serious count. We cannot accept the third submission made on behalf of the applicant that any confusion was caused by this direction. Again, the way the case was put by the trial judge would have redounded to the applicant's advantage because the one intent upon which the jury were invited to concentrate was intention to kill. If any attempt had been made to distinguish the states of mind requisite for a conviction on the one count rather than on the other it would, in our opinion, have been calculated to confuse rather than to enlighten.

14. Finally a complaint is made that the judge wrongly directed the jury to ignore suggestions made by counsel to witnesses with which the witnesses disagreed. What he said, correctly, was that such questions were not evidence of anything. It is however contended that to tell the jury that they should ignore the questions and answers for all purposes went too far. There is some substance in this because there may be cases in which, as a result of a question, albeit denied, the witness' credibility may be thought by the jury to be impaired and this is a matter which they could take into account. But here the applicant himself gave evidence, the jury were reminded of its substance and it was left to them to determine whether or not they were, in consequence, sure in the light of all they had seen and heard that he was present in that twelfth floor room at the time when the shot was fired which entered the victim's lung.

15. In the event we hold that the application for leave to appeal against conviction fails. It therefore falls to be dismissed.

Representation:

Gary Plowman (M/s Clifford Yeung & Co. Solicitors) for Appellant I.G. Cross for the Crown