Mau Cheung-lung and Another v. The Queen

CACC000197/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 197 OF 1970

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Coram: Rigby, C.J., Scholes, S.P.J. & Mills-Owens, J.

Date of Judgment: 11 September 1970

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JUDGMENT

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1. The two appellants, now aged 17 years and 18 years respectively, were the 5th and 6th accused at the trial and it will be convenient to continue to refer to them as such. They were two of a party of seven accused persons then aged between 14 years and 19 years, the youngest being a girl, all of whom were found guilty by the jury of a joint robbery in which a knife produced from the handbag carried by the girl was used to threaten the person robbed. The robbery was the first of a series of incidents on the day in question, the 24th November 1969. Following the robbery a report was made to a police constable who went to investigate. Omitting unnecessary detail, the point of time was arrived at when the police constable in the course of interrogating the 5th and 6th accused was attacked by them and others of the seven accused. According to the evidence the 6th accused seized the police constable by the neck whilst another of his assailants, being armed with a knife, inflicted two wounds on the police constable. One of these wounds was a cut finger sustained by the police constable in endeavouring to ward off the knife. The second was of a more serious nature being a wound to the forehead which chipped the bone. According to the police constable there was also a blow with the knife directed at his chest which, however, was ineffectual because it struck his leather cross-band. According to the evidence there was a third wound consisting of a superficial wound on the elbow which was inflicted by the 5th accused. All three wounds were inflicted whilst the police constable was being held by the 6th accused. The elbow wound, in particular, was inflicted following upon the 6th accused crying out "Take his gun quickly"; the police constable attempted to guard his gun by pressing it with his elbow whereupon the elbow wound was inflicted by the 5th accused. This enabled the 5th accused to wrest away the police constable's gun. The police constable was then propelled by his assailants towards a deep nullah and thrust into it. As he fell into the nullah the 5th accused used the gun to shoot him, firing one shot at his chest. The wound thus inflicted was a very serious one which narrowly missed being fatal. After some passage of time which the police constable, having lost consciousness, was unable to specify, he got to his feet in the nullah and saw three persons, two of them being the 5th and 6th accused, standing nearby, and he discerned the gun lying on the road. The police constable then endeavoured to climb out of the nullah with the intention of repossessing himself of the gun. Unfortunately both the 5th and 6th accused saw him. The 5th accused then picked up the gun, went up to the police constable and shot him at point blank range in the mouth as he was, in fact, in the act of climbing out of the nullah. Then, leaving the police constable, as they thought, for dead, they made their escape. In the course of their escape they compelled a car driver, one Chung Kay, to take them on board as passengers, but the details of this incident need not be related.

2. Among the counts of the indictment, arising respectively out of the robbery, the knifing and shooting of the police constable, and the incident concerning Chung Kay, there were two with which we are particularly concerned. The first count was of wounding the police constable with intent to murder him and the second count was of wounding the police constable with intent to do him grievous bodily harm. The 5th and 6th accused were both found guilty on those two counts. Having regard to the evidence and the course of the summing up it is apparent that the verdict of guilty on the first count rested upon the use of the gun and that the verdict on the second count rested on the use of the knife.

3. The 5th accused appeals against sentence only: in particular against the sentences of 9 years and 7 years imprisonment on the first and second counts respectively. The 6th accused lodged an appeal against his convictions on the first and second counts and also against his conviction on a third count in respect of the robbery and a fourth count in respect of criminal intimidation of Chung Kay. On the hearing of the appeal his counsel, quite rightly in our view, confined his argument to the first count. In support of the appeal on this count counsel argued that there was insufficient evidence upon which the 6th accused could have been convicted and that the learned trial judge was wrong in leaving that count to the jury so far as the 6th accused was concerned. In the course of his summing-up on this count the trial judge carefully directed the jury on the necessity for it to be established that each of the accused was a participant in the use of the gun, but, in important passages towards the end of his summing-up, he addressed them in the following terms:-

"Well he said, the constable said that he heard the 6th accused say "Take his gun quickly". Now that was during the struggle and there is no doubt about it the 6th accused's statements, uncontradicted statements, including one in the magistrate's court, said that he did seize the neck of the policeman. Now it is urged by the defence that "Take his gun quickly" means disarm the policeman. It may be that that is so; it may be that it means take and use his gun. That is for you to decide in the circumstances of this case and I cannot help you further on it, but there is no doubt, and I think you can have no doubt, that the victim 7744 said that he was present and assisted the others at the attack when the policeman was seriously wounded.

Now there is one other point. When the policeman had been thrown into the culvert he recovered a bit and stood up and he saw the 5th accused bring the gun towards him and fire it, and it that time the 6th accused was still present. It is for you to decide whether he was not there aiding and abetting and assisting in the commission of such crime as the 5th accused committed. You may well think, therefore, that he was as responsible as the 5th accused in respect of the first or in respect of the second charge. It is for you to decide. But unless you are satisfied beyond reasonable doubt that he was assisting the 5th accused and shared in the 5th accused's attempt to murder, you should not find him guilty of that charge, but if you are satisfied beyond reasonable doubt that he was assisting the 5th accused in wounding with the others in the party with intent to damage the police officer, then you should find him guilty of that charge."

4. As it appears to us, whatever might be said regarding the direction contained in the first passage that the use by the 6th accused of the words: "Take his gun quickly" could, in the circumstances of the case, be held to implicate him in the first count, it is clear that the conviction thereon is vitiated by the next following passage which left it open to - indeed almost invited - the jury to convict him on the mere basis of presence at the time of the second shooting. Thus, regardless of the question whether the words used by the 6th accused: "Take his gun quickly" could properly afford a foundation for a direction that the jury might treat them as words of encouragement to shoot, and to kill, on the first occasion, and therefore of participation with the necessary intent by the 6th accused in the first shooting, his appeal must be allowed on the first count on the ground that the direction given went too far in that it allowed a verdict of guilty on no more evidence than virtually that of mere presence on the occasion of the second shooting. It is idle to speculate as to the intention or feelings of the 6th accused at that stage or as to what interval of time had elapsed since the first shooting, and we cannot be made aware whether the jury relied upon the words used by the 6th accused or upon his presence at the time of the second shooting. The principle to be applied is clear, being stated in the headnote to the case of Anderson and Morris⁽¹⁾ in the following terms:

"When two adventurers embark on a joint enterprise, each is liable for acts done in pursuance of it and also for the unusual consequences of such acts, provided that they arise from the execution of the joint enterprise; but if one of the adventurers goes beyond what has been tacitly agreed as the scope of the enterprise, his co-adventurer is not liable for the consequences of that extraneous act."

As we have indicated, whatever might be said regarding the words used by the 6th accused shortly before the first shooting being capable of founding an inference of his participation therein, with the necessary intent, there was virtually no further evidence of a joint enterprise so far as the second shooting is concerned, so that it remains uncertain upon what basis the 6th accused was convicted by the jury; the second possibility being open, namely that the verdict was founded on mere presence on the occasion of the second shooting, it follows that the conviction cannot be sustained. We would, further, have been inclined to doubt whether the words used by the 6th accused were properly so capable. The case is very different for example, from the case of Craig and Bentley⁽²⁾ where the appellant, being not only present and knowing his companion had a gun, used words: "Let him have it, Chris.", of direct encouragement to shoot, whereupon the companion did immediately shoot. The case is different also from that of Mohan v. R.⁽³⁾ where at the material time both appellants were armed with cutlasses, both were attacking the victim, and both struck him, but it was impossible to determine which of them struck the fatal blow. As the Privy Council said, it could not be contended that the fatal blow was outside the scope of the common intention; each was attacking the same man at the same time with similar weapons and with the common intention that he should suffer grievous bodily harm, each being present and aiding and abetting the other of them in the wounding. The Privy Council went on to distinguish the case from, inter alia, cases in which one of the accused was not participating in the attack or not using any dangerous weapon, where it is necessary to prove that he was a party to a pre-arranged plan in pursuance of which the fatal blow was struck. With respect to the second shooting, therefore, in the absence of evidence of any pre-arranged plan, or we would add, of the use of any words or acts by the 6th accused encouraging the 5th accused to shoot the policeman for the second time, the second shooting cannot be attributed to the 6th accused jointly with the 5th accused.

5. Accordingly the appeal of the 6th accused on the first count is allowed and the conviction thereon quashed.

6. With regard to the appeal of the 5th accused against his sentences of 9 years and 7 years respectively on the first and second counts, we see no reason, despite his youth, to interfere therewith. The second shooting, especially, was deliberately murderous, the shot being directed, at close quarters, at the mouth of the police constable; only providentially did he survive. No argument has been addressed to us regarding the sentences on the remaining, comparatively minor, counts and we see no reason to interfere with them either. The application by the 5th accused for leave to appeal against sentence is accordingly dismissed.

Representation:

P. Yu (Peter Mo & Co.) for 2nd appellant

1st Appellant in person.

Corcoran, D.D.P.P. for Crown/respondent.

(Judgment of the Court delivered by Mills-Owens, J.)

(1) (1965) 50 Cr.App.R. 216.

(2) Notable British Trials (1954)

(3) (1967) A.C. 187, 194.