Li Chi Wing and Others v. The Queen

CACC000187/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 187 OF 1972

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Coram: Huggins, McMullin and Leonard, JJ.

Date of Judgment: 27th July, 1972.

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JUDGMENT

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1. The six Appellants were among seven young men indicted jointly on counts of conspiracy to wound, of murder and of wounding with intent to cause grievous bodily harm. The 1st Accused was found guilty of conspiracy, not guilty of murder but guilty of manslaughter and not guilty of wounding with intent but guilty of wounding. He has not appealed. The other Accused, who are the Appellants, were all found guilty of conspiracy: all were found guilty of murder except the 6th Appellant, who was found not guilty of murder but guilty of manslaughter: and all were found guilty of wounding with intent except the 6th Appellant, who was found not guilty of wounding with intent but guilty of wounding. The 2nd, the 5th and the 6th Appellants appeal against their convictions on all counts and the 1st, the 3rd and the 4th Appellants appeal only against their convictions on the count of murder.

2. The case for the Crown was that as a result of an alleged attack by members of the Wo Shing Wo Triad Society on the 4th Appellant on the morning of 29th August 1971 the accused persons and a number of persons who have not been arrested decided to take violent revenge and, with that object, went the same afternoon to Block 32 Tsz Wan Shan Resettlement Estate and attacked such members of the Wo Shing Wo as they were able to find, including the two victims named in the indictment. They were alleged to have gone armed with a variety of weapons, including knives and pieces of water-pipe some three feet in length. All except the 6th Appellant admitted having gone to the scene, where violence undoubtedly occurred, but they said they went there merely to parley and went armed merely for self-defence. The 6th Appellant denied having been at the scene, having, he said, parted company with the other Accused on the way.

3. The Notices of Appeal contain many grounds of appeal. The 13th ground in the Notice of the 3rd and 4th Appellants was abandoned but a 14th ground was added by leave at the hearing. In the event we think only three matters are of sufficient substance to require mention in this judgment. Of these the first relates to the issue of provocation. The complaint of the 1st and 5th Appellants is that this defence was withdrawn from the jury in so far as they were concerned and the complaint of the 3rd and 4th Appellants is that the learned judge misdirected or failed adequately to direct the jury upon the issue.

4. It is apparent that judges have had some difficulty in deciding when it is necessary to leave the defence of provocation to a jury. The general rule is well accepted, namely that where there is evidence upon which a jury can properly come to the conclusion that the accused killed as a result of provocation the defence must be left, even though counsel for the accused does not expressly rely upon it: Porritt⁽¹⁾. The difficulty arises in deciding whether on the facts of a particular case a jury could properly come to the conclusion that the accused might have killed as a result of provocation. The position is particularly complicated where it is in issue whether it was the accused himself or an accomplice of his who killed the deceased. In some cases there may be evidence which, if believed, would enable the jury to find that it was the accused who was the killer: in others there may be no evidence which would support a positive finding that the accused was the killer. Where the jury is satisfied that the accused did strike the fatal blow it is not necessary for the prosecution to rely upon common intent as against him and in such a case the jury would have to be satisfied that when he struck the blow he was not acting as a result of provocation. A jury cannot properly assume that because an accused had previously, in common with others, formed an intent to kill or to cause grievous bodily harm the fatal blow was struck in pursuance of that intent: it would be possible, though it may be unlikely, that provocation intervened between the formation of the intent and the time when the intended attack was to be carried out. The only evidence in the present case which might have supported a finding that one particular person was the killer was the statement by the 4th Appellant that he himself took the only triangular file referred to in the case and the evidence of Dr. LEE Fook-kay that the fatal wound was caused by a triangular weapon such as a triangular file. It would seem that the judge left provocation in respect of the 3rd Appellant, also, on the basis of his statement that he warded off some blows, but we think that was not sufficient upon which to base a positive finding that the 3rd Appellant was the killer. If either the 3rd or the 4th Appellant was the killer it would be open to him to allege that he was provoked, but the other Appellants could not then rely upon provocation. The reason is simple: the other Appellants could be convicted of murder only if it were proved that death resulted from execution of an intent, common to them and to the killer, to kill or to cause grievous bodily harm. If the 3rd or 4th Appellant killed as a result of provocation he did not kill in execution of such a common intent and the other Appellants would not need to set up provocation to avoid conviction for murder. If neither the 3rd nor the 4th Appellant was the killer any one of the other Appellants might have been the killer and, if one were to speculate in turn that each struck the fatal blow, then in theory provocation would be open to each of them. That, however, presupposes that there was evidence sufficient to suggest the possibility that he was provoked. In this connection it must be remembered that there are two main questions to be answered in relation to provocation: (1) whether the words and conduct with which the accused was faced could provoke a reasonable man into doing what the accused did, and (2) whether the accused was or may have been provoked. It is not enough that there may have been provocative conduct on the part of the victim if there is no evidence that the accused was provoked into killing him. As to that the jury may not speculate. In the present case it is argued that the nature of the injuries was sufficient to suggest the possibility that whichever of the Accused killed the Deceased he was acting as a result of provocation. Those injuries were three in number. There were two stab wounds and a shallow wound, all of which could have been caused by a triangular file. Even assuming that all were inflicted by the same person we do not think that is evidence suggestive of the killer's having lost control of his mind. There was no other evidence suggesting that any of the Accused lost control of his mind and it follows that in our view it was unnecessary for the judge to leave the issue of provocation at all, although he did in fact leave it in respect of the 3rd and 4th Appellants.

5. In the light of the conclusion which we have reached it is not strictly necessary to consider whether it can ever be requisite for a judge to leave the issue of provocation in a case where the defence allege what has been described as "group provocation", that is to say provocation by the deceased and his associates to the group of which the accused was a member. However, as the matter has been argued and some guidance may be of assistance in future cases we say a few words about it. It was not suggested here that "provocation" can come from a person entirely unconnected with the victim: where a victim is one of a group of persons whose over all pattern of behaviour may amount to provocation, we think, his killer may successfully set up the defence of provocation: Reg. v. Twine(2). But we are of opinion that where the killer cannot be identified beyond reasonable doubt no question of provocation can ever arise for determination by the jury. In such a case even if it were proper for the jury to speculate that a particular accused was the killer (and we think it is not) they must also consider the possibility that he was not the killer. It follows that in order to convict of murder the jury would have to find a common intent to kill or to do grievous bodily harm. More than that, they would have to find that the death was a result of that common intent. If the death was a result of that common intent it could not also be a result of provocation. In other words, the finding of death due to a common intent to kill or to do grievous bodily harm rules out the possibility of a finding that there was provocation in law which would reduce the offence to manslaughter.

6. It is also unnecessary to consider whether the complaints made of the judge's direction on provocation in respect of the 3rd and 4th Appellants were justified, though we may add that we incline to think they were not.

7. The matter which has caused us most anxiety is the verdicts returned against the 6th Appellant. Counsel does not in fact challenge the conspiracy verdict, but submits that it is inconsistent with the verdict of not guilty of murder but guilty of manslaughter on the second count and that of not guilty of wounding with intent to cause grievous bodily harm but guilty of wounding on the 3rd count. The alleged conspiracy was one "to wound such members of Wo Shing Wo Triad Society as they might meet in Tsz Wan Shan Resettlement Estate". The evidence of conspiracy was that of a girl, YU Mei-hung, who said that she saw all the Accused except the 3rd Appellant in a hut at 10 o'clock on the morning of the alleged murder and that they were talking about fighting. Later she went to another hut and while she was there all the Accused except the 1st and the 3rd Appellants came in. The 6th Appellant's trousers were torn and he told her that a fight had taken place and that someone had been injured. She could not say how he knew this but the prosecution obviously wished the jury to infer that it was a result of his own observation. There was no evidence - apart from that of his statement to the Police that he was near the scene - which could otherwise possibly connect him with the alleged murder and a fortiori none that he was there armed with a weapon more lethal than a water-pipe. On the contrary, all the other Accused said he was not at the scene. His statement put him at a distance of twenty yards from an attack on four members of the Wo Shing Wo by some of his Co-accused, who were holding a triangular file, a knife and water-pipes or similar articles. Upon this evidence it is the submission of counsel for 6th Appellant that, if the conspiracy was one to wound with intent to cause grievous bodily harm (which was not the offence charged in the 1st count) and the 6th Appellant was present aiding and abetting at the scene of the attack, then he was necessarily guilty of murder. However, if (as in fact alleged in the 1st count) the conspiracy was merely to wound and if the 6th Appellant had no reason to believe that lethal weapons would be used he was rightly acquitted of murder but he was equally entitled to be acquitted of manslaughter because the use of lethal weapons went outside the common intent evidenced by the conspiracy: see Reg. v. Anderson & Morris(3). Counsel for the Crown submits, on the other hand, that it was open to the jury on the evidence to find that the 6th Appellant was present at the scene and that he took part in the attack, although intending to do something less than grievous bodily harm. He concedes that the verdict on this Appellant is difficult to reconcile with those on the others because the 6th Appellant admitted to the Police that he had a water-pipe, but counsel relies upon the fact that in his statement the 6th Appellant said he did not know until shortly before the attack that his companions carried knives: it was possibly upon that basis that the jury thought it right to differentiate between the Appellants.

8. In a case where the prosecution relies upon common intent it is for the jury to decide whether there has been

"an overwhelming supervening event which is of such a character that it will relegate into history matters which could otherwise be looked upon as causative factors": 50 Cr. App. R. 223.

In Betty Lord Parker quoted from the judgment of Slade J. in Reg. v. Wesley Smith⁽⁴⁾, including this passage at p.602:

"It is significant ...... that [the appellant] knew that Atkinson carried a knife. Indeed, I think he knew that one of the other men carried a cut-throat razor. It must have been clearly within the contemplation of a man like [the appellant] who, to use one expression, had almost gone berserk himself to have left the public house only to get bricks to tear up the joint, that if the bar tender did his duty to quell the disturbance and picked up the night stick, anyone who knew he had a knife in his possession, like Atkinson, might use it on the barman, as Atkinson did. By no stretch of imagination, in the opinion of this court, can that be said to be outside the scope of the concerted action in this case. In a case of this kind it is difficult to imagine what would have been outside the scope of the concerted action, possibly the use of a loaded revolver, the presence of which was unknown to the other parties ......".

In the present case the learned judge said:

"          Now the ingredient of intent is satisfied if the accused person is proved to have intended to kill, but it is also satisfied if the accused person is proved to have intended something slightly short of killing, that is inflicting really serious injury. Now you may think that this is really common-sense. If an accused person takes such risks with another person's life, that intending really serious injury though not actual death, he embarked on an attack with such intent and death resulted, he is guilty of murder. He has to take the consequences if he chooses to take such risks with another person's life. If, however, a person embarked on an attack on another human being intending some harm short of serious bodily harm and death resulted he is not guilty of murder but is guilty only of manslaughter."

That might have been a proper and sufficient direction where there was no question of common intent, but this was not such a case. Later the judge went on to deal with common intent:

"The intention, as the Crown alleges in this case, is one shared amongst the accused. Now in relation to each accused, as I have said, the degree of intention need not be identical. If in respect of any one of the accused you come to the conclusion that he went to Block 32 Tsz Wan Shan with some lesser intent than causing grievous bodily harm, such as for instance taking part in a show of force by frightening and intimidating the other group, and that at Tsz Wan Shan he did just that and no more, but one or more of his fellows went beyond the common design and FUNG Yum-yue was killed then you will not find him guilty of murder but only guilty of manslaughter. To put it slightly differently, if the Crown satisfies you on the evidence that in relation to any one of the accused persons, he took part knowing that weapons were being carried for an unlawful purpose but thinking that these weapons were to be used to cause something less than grievous bodily harm, then you will find him not guilty of murder but guilty of manslaughter."

Then he said in respect of the 6th Appellant:

"          I come now to the 7th accused. He says in evidence that he was not there at all. So, as I have directed you at the beginning of my summing-up, you have to be satisfied beyond reasonable doubt in the first place that the 7th accused was there; and if you are satisfied that he was there, to be guilty of the 2nd and the 3rd charges, he must be proved to have taken part with intent to inflict at least grievous bodily harm. Again if you are satisfied that he was there, that he did take part in an attack but his intent was something less than grievous bodily harm - some harm, but something less than grievous bodily harm, or that he intended some unlawful purpose such as, for instance, to menace, to threaten, and that from the affair the deceased was killed by someone in his group going beyond that common intent, then the 7th accused would be guilty of manslaughter but not guilty of murder. To be guilty of murder, he must be proved to have taken part in the attack with intent to inflict at least grievous bodily harm."

There was a similar direction in respect of other Defendants, but as they were found guilty ff murder nothing turns upon that. In our view the direction of the learned judge did not accord with the authorities which we have cited. It would indeed have been open to the jury, as counsel for the Crown submitted, to find that the 6th Appellant took part in the attack although intending to do something less than grievous bodily harm but he could be convicted of manslaughter only on the basis that the killer did not go outside the scope of the common intent when he used a triangular file or similar weapon. The question is whether, as did the court in Reg. v. Wesley Smith we can say that "by no stretch of imagination ...... can [what happened] be said to be outside the scope of the concerted action in this case". We do not think we can and it follows that the conviction of the 6th Appellant for manslaughter cannot stand.

9. One other matter must be briefly mentioned. Part of the evidence for the Crown consisted of confessions alleged to have been made to the Police. The Appellants had challenged the admissibility of these statements and it was their case that pressure had been brought to bear upon them to induce them to make the statements. The learned judge referred to the evidence of such alleged inducement and concluded in these terms:

^{"          Now that is all I have to say, members of the Jury, with regard to the taking of the various statements, and when you retire to consider your verdicts you will have, of course, all the statements before you, and as I have said already you should give such weight to these statements as you think proper, considering the circumstances in which they were made."}

It is complained that the learned judge did not expressly tell the jury that if they were not satisfied that the statements were voluntary they should attach no weight to them. The jury was concerned with the truth of the statements and was quite well able to judge for itself whether or not the statements were true. Any reasonable jury would realise the danger that an involuntary statement might as easily be untrue as true and there was no need whatever for the judge to emphasise that danger. It would be wrong to lead a jury to believe that because a statement was involuntary it was necessarily untrue. In our view it was not necessary for the learned judge to do more than he did.

10. We dismiss the applications of all the Appellants other than 6th Appellant. His conviction on the 2nd Count is quashed and the sentence set aside, but his appeal is allowed to that extent only.

27th July, 1972.

Representation:

Mr. F. Eddis (Danny Yiu & Co.) assigned for 1st, 4th & 5th Accused.

Mr. P. Woo (Alfred Lau & Co.) assigned for 2nd, 3rd, 6th & 7th Accused.

Mr. Duckett for Crown/Respondent.

Judgment delivered by President

(1) (1961) 45 Cr. App. R. 348.

(2) 1967 Crim. L. R. 710

(3) (1966) 50 Cr. App. R. 216

(4) 1963 3 All E.R. 597.