Shum Shun Hong and Others v. The Queen

CACC000173/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 173 OF 1974

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Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 7th May, 1974.

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JUDGMENT

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1. This is an appeal from a decision of the Supreme Court. The three appellants were charged with murder, and two charges of assault with intent to rob contrary to section 10 of the Theft Ordinance. The first appellant was found guilty of manslaughter and assault with intent to rob, and the second and third appellants were found guilty of murder. The first appellant was sentenced to six years' imprisonment on the manslaughter charge and four years' imprisonment on the other charges, the sentences to run concurrently; the second appellant was sentenced to be detained until Her Majesty's pleasure be known and the third appellant was sentenced to death. All three appellants have appealed to this court.

2. The facts are simple. The case for the prosecution was that during the night-time on the 16th August, 1973, two persons, namely, LEUNG Chiu-fan and YIP So-lan, were sitting talking on a bench at Chaiwan Road outside Shaukiwan Government School, when they were attacked by the three appellants. The third appellant was armed with a knife. The other two were unarmed. As a result of this attack, LEUNG Chiu-fan was killed. He died from stab wounds inflicted upon him by the third appellant. The case for the appellants was that there was a struggle between the deceased and the appellants in which the first appellant took little if any part. The struggle was provoked by the deceased and it was as a result of that provocation that the deceased met his death.

3. Various grounds of appeal were submitted on behalf of the appellants. We consider it only necessary to deal with one of these, namely, that the summing-up to the jury contained a misdirection in respect of a confessional statement made by the first appellant.

4. The summing-up is a very lengthy document and refers to a voluntary statement made by the first appellant to the Police after caution. It is unnecessary to detail the contents of the statement which were, of course, only evidence against the first appellant himself. There are passages in the summing-up which seem to suggest that that statement of the first appellant is the keystone of the case for the prosecution against all the appellants. It may well be that the learned trial judge did not intend such an inference to be drawn from what he said and there are other passages in which he clearly states that the statement is only evidence against the first appellant himself. We think it would be dangerous to allow the conviction against the second and third appellants to stand in these circumstances. We cannot say that if the jury paid no attention to the statement of the first appellant when considering the cases against the second and third appellants, that they would have recorded a conviction against the second and third appellants inevitably. Therefore, we think that the appeal against conviction of the second and third appellants must succeed.

5. We do not think that the same applies to the first appellant. The statement in question was clearly admissible in evidence against him and we see no reason to interfere with his conviction. Therefore his appeal against conviction is dismissed.

6. In the circumstances, we think that the correct order to make is an order for retrial of the second and third appellants.

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