HKSAR v. Tang Siu Ming

CACC000217/1999

CACC 217/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 217 OF 1999

(ON APPEAL FROM HCCC 37/1998)

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Coram: Hon Stuart-Moore VP, Leong JA and Wong JA in Court

Date of Hearing: 7 March 2000

Date of Judgment: 7 March 2000

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J U D G M E N T

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Leong JA (giving the judgment of the Court):

1. The applicant Tang Siu-ming was jointly charged with the second defendant in this case with murder in the Court of First Instance of the High Court before Beeson J and a jury. After trial, both the applicant and the second defendant were found not guilty of murder. The second defendant was acquitted while the applicant was found guilty of the alternative offence of manslaughter. He was sentenced to 4 years and 8 months imprisonment. He now applies for leave to appeal against conviction.

2. The killing occurred on 13 August 1996 outside a 7-Eleven Convenience Store in Wanchai when the deceased was attacked by a group of men. The main attacker was one Ko Lo Hung and the applicant was one of the attackers. Presumably the attack was made because Ko Lo Hung suspected that the deceased had informed on him. The deceased was beaten with fist and by kicking. As a result of the injuries he suffered in the attack, the deceased died; the cause of death was certified to be a ruptured spleen.

3. The prosecution case was that the deceased was punched by Ko Lo Hung followed by punching by the applicant. The deceased then fell to the ground and Ko Lo Hung, the applicant and others continued to kick him for more than once and the kicking lasted five to six seconds. While the deceased was on the ground, the second defendant also went up to kick him.

4. The applicant in a statement he made to the police in an interview after his arrest, admitted that he helped Ko Lo Hung to punch and kick the deceased. He also admitted that after the deceased was beaten and the attack stopped, he helped the deceased to lie on a nylon bed. The applicant also said in his statement that he had told Ko Lo Hung it was enough and not to beat the deceased any more. The applicant adopted what he said in his interview as his evidence. In his defence he denied that he had kicked the deceased and said it was Ko Lo Hung who did that.

5. There are a number of grounds of appeal.

6. The first and the second ground can be taken together. The basis of these grounds is that the applicant had withdrawn from the attack on the deceased before Ko Lo Hung attacked the deceased the second time, when he delivered hard kicks to the chest of the deceased while the deceased was lying on the ground. The applicant did not take part in the second attack and on that basis, the applicant would only be guilty of the offence of assault occasioning actual bodily harm. The complaint is that the Judge had failed to direct the jury as to his withdrawal from the joint enterprise and failed to leave the alternative verdict of assault occasioning actual bodily harm to the jury. The result, the applicant submitted, could be that the jury convicted the applicant of manslaughter out of reluctance to let the applicant get away despite his admission that he only took part in the initial unlawful assault on the deceased.

7. As Mr Bruce SC, for the respondent had pointed out in his submissions, the first ground was based on the assumption that there was a distinct pause in the assault and that the applicant was not a party to a joint enterprise to beat the deceased in the second attack. However, there was no real evidence which would suggest that there was any basis for the proposition that there were two separate incidents of attack.

8. The Judge at page 22 of her summing up summed up accurately the evidence of the eye-witness, PW1, as follows:

"... He said he saw the deceased coming from the direction of Hennessy Road towards the 7-Eleven and Ah Sai went out from his group and spoke to him. He said that all of a sudden, Ko Lo Hung and the 1st defendant rushed towards the deceased. At that point, Ah Sai moved away. And he said that Ko Lo Hung hit the deceased very fast, pushing and punching, and the deceased fell to the ground where he was kicked, according to this witness, by Ko Lo Hung and Mr TANG, and it took about five or six seconds approximately.

He said Shu Tau then rushed to the man and kicked him as he lay on the ground, while Ko Lo Hung and the 1st defendant were still nearby, and he confirmed that the 2nd defendant gave one kick. ..."

9. The evidence of the applicant on the attack which he adopted from his cautioned statement was also summed up accurately by the Judge at page 37 at line Q onwards:

"... Between 90 and 95 - when I refer to the numbers, I am just referring to the items in the statement. At 90, he says that Shu Tau called out 'That's him, that's him'. Well, actually, he says he suddenly 'said'; he does not say 'shouted' 'That's him, that's him'. Ko Lo Hung then gives his handbag to Shu Tau who holds it. He does not give any information about what happened. He just says that Ko Lo went out and grabbed the man from behind and hit him. At that point, at item 100, he gives his reason for joining in. He said, 'I intended to help Ko Lo Hung in the fight. I did not know what the matter was, but when a friend is involved in a fight, I intuitively intended to help him', and it was then that he says that 'I hit him with a fist twice on his head', and he said at a later point that it was a hard hit on the head.

And then at 102, he refers to about four or five people coming up, possibly people coming up to see what was happening. There is a suggestion that some people may have joined in the kicking, but it is not clear, of the number who went up, how many were involved in that kicking. He confirms that he did not know Mr YIP. At 110, he says that he was still next to Ko Lo Hung and the people were shouting at Mr YIP to go away, and that the people dispersed from around Mr YIP, apparently, but they were still in the vicinity of the 7-Eleven store. And at that point, at 112, he says that Ko Lo Hung stood there, obviously after a pause, and then kicked Mr YIP on the chest twice. At the time, Mr YIP was still sitting on the ground.

At 124, he describes what he did not know before the incident, according to him. He says he heard Ko Lo Hung speaking to him and demanding to know why he had been phoned by YIP, and that was denied, according to him, by Mr YIP, and he could not make out what he said. Now, after that, Ko Lo Hung again kicked him. At that point, according to Mr TANG, he was kicked to the position of the hoarding, to the wooden board, and it was at that point that he noticed he was in great pain. He then told Ko Lo Hung, 'Enough.' He said he noticed at that point that he was at an advanced age, and he said, 'I was afraid that he might be beaten to death.'

At that point he said that he was the person who helped him to a nylon bed - or the nylon bed outside the shop. Presumably that is the nylon bed where he was eventually found by the police. He then went off to gamble. ..."

10. The Judge further referred to the evidence of what happened at the scene at p. 40:

"Nobody had seen him apparently take this deceased to the bed. But he refers much later - at 259, he refers to a woman that he refers to as 'Ah Fan' seeing him carry the person to the bed. But obviously she has not been a witness in the case. At 261 he repeats what he did. He just says, 'I spontaneously punched him on his face, punched twice and then he fell on the ground', after, probably, Ko Lo Hung caused him to trip over. He said, 'I then stood by them and stood there to watch them kick.' Now, Mr LAU has given evidence that he saw him taking part in the kicking. So that is a matter that you have to consider in respect of the evidence."

11. It can be seen from the above evidence of the prosecution as well as the applicant that there was no significant gap in time during the beating as to suggest there were two separate incidents of attack. The evidence showed a continuous attack on the deceased by Ko Lo Hung together with the applicant and others during which there was a lull to enable Ko Lo Hung to question the deceased. The applicant was there throughout the attack assisting Ko Lo Hung albeit the applicant himself only inflicted two blows on the deceased. The applicant was part of the joint enterprise to beat up the deceased and the beating only ended when the applicant told Ko Lo Hung that the beating was enough. The applicant wanted the beating to stop because he saw the deceased was advanced in age and he was afraid that the deceased might die if the beating continued. The calling of a stop to the beating may indicate some repentance but this does not in any way suggest that the applicant had withdrawn himself from the earlier attack which he had participated. There was no evidence to suggest that at any time before the beating came to an end, the applicant might have withdrawn himself from the joint enterprise or might have communicated to the others that he abandoned the joint enterprise. On that state of the evidence, the complaint in the first ground is not justified. The Judge had correctly stated on page 11 of the summing up the principles as to joint enterprise and had illustrated with examples on the pages that followed. The Jury were left in no doubt as to the correct approach in law to the issue of joint enterprise. The first ground must fail.

12. On the second ground, while it was open to the Judge on an indictment for a murder to leave to the jury a charge of occasioning actual bodily harm as an alternative verdict, the Judge was not obliged to do so and failure to do so does not vitiate a verdict returned on the indictment where there is evidence to support that verdict. In the present case, had there been evidence supporting the applicant's case that there were two separate incidents of attack and he might have withdrawn from the joint attack after the first where the blows inflicted on the deceased might not have resulted in injuries causing the deceased's death, then it might be necessary for the Judge to leave the verdict of occasioning actual bodily harm to the jury as an alternative. But as we have pointed out in relation to the first ground of appeal, the evidence does not suggest that this was the case here. In any case, the jury had been properly directed on the alternative verdict of manslaughter in the Judge's further directions where she said this:

"In respect of the manslaughter by an unlawful act, which it suggested that it - which is - there is no dispute that this (is) an unlawful act. If the act which a person does is unlawful and deliberate, and at the same time it is an act that is likely to injure another person, then if that act causes the death of another person as a result even though that person may not intend the death as a result, he can be guilty of manslaughter."

13. On the applicant's own admission, the evidence was that he participated in a joint enterprise to beat up the deceased which resulted in injuries causing the deceased's death. This supports a verdict of manslaughter. The second ground must also fail.

14. The third ground complains that the Judge had failed to take adequate steps to reduce the risk of prejudice to the applicant arising from the allegations contained in the caution statements of the second defendant.

15. The Judge in her careful summing up time and again took steps to warn the jury against using one defendant's statement as evidence against the other and specifically using the statement of the second defendant as evidence against the applicant. Her general direction in this regard is to be found on page 16 of the summing up where she said this:

"There have been statements made in this case. I will refer to them later when I am dealing in particular with the case of the defendants separately. But the rule is that a statement implicating one defendant made by another defendant which is made out of court and not in the presence of that defendant is not evidence against him. So in this case, where the 2nd defendant has given a statement and he has implicated the 1st defendant, you must ignore all the comments he makes about the 1st defendant in his statement. The 2nd defendant's statement is relevant only to his own position. However, what a defendant tells you about another defendant in the witness box is evidence against that defendant."

16. Later at page 45, the Judge said this:

"So the statement which Mr CHAN gave to the police, or the statement that he gave to the police in which he mentions the 1st defendant, cannot be evidence against the 1st defendant. The 1st defendant was not present. He had no opportunity to contradict what was being said by the 2nd defendant at the time he was interviewed by the police. So you must disregard what he says in his statement about Mr TANG."

17. Further at page 52, the Judge again emphasized to the jury the importance of disregarding the statement of the second defendant in assessing the case against the applicant. She said this:

"Now, those are the parts of Mr CHAN's various statements that are important in relation to him and, as I say, what he says about the 1st defendant, Mr TANG, cannot be taken into account when you are considering the case against Mr TANG. ..."

18. The jury must have been left with no doubt that they should not take into account the statement of the second defendant in their consideration of the case against the applicant. As can be seen from the evidence summarised by the Judge which has been referred to earlier in this judgment, the jury was fully directed as to the evidence of the circumstances of the attack and was aware that the only prosecution evidence of the applicant kicking the deceased came from PW1 and the applicant had denied that he had done so. As the evidence was before the jury to assess, no specific direction in this regard need be made.

19. The fourth ground is that the Judge used the words "murderous attack" in various parts of her summing up. The Judge did refer to the attack on the deceased as "murderous attack" by Ko Lo Hung together with the two defendants in a number of places in her summing up but this was done in the context of the prosecution case. That was the case which the prosecution had sought to prove against the defendants i.e. an attack with intent to kill or to cause serious bodily harm which resulted in the death of the deceased and this was murder. The Judge was cautious to add that this allegation was vigorously denied by the defendants and in particular she said this in relation to the applicant at page 15:

"... That, of course, is vigorously denied by the defendants. Because although the 1st defendant says that he, as he said, 'intuitively', he says that he had no idea what Ko Lo Hung was intending or could not be expected to realise that Ko Lo Hung was going to launch such a murderous attack."

20. This was a well balanced summing up and the references to "murderous attack" did not cause the applicant any prejudice.

21. The fifth ground complains that the Judge decline to direct the jury that there was a difference between the use of fist initially and the use of feet subsequently which would indicate that there were two incidents of attack and the scope of the enterprise which the applicant had taken part. Complaint is also made of the examples given by the Judge in her directions to the jury.

22. This may be disposed of shortly. The examples given by the Judge might have been less than relevant having regard to the circumstances of this case. Nevertheless the Judge, as we said earlier, had given a correct and proper direction on joint enterprise and on manslaughter and these examples did not detract from what the jury had been properly directed. The evidence, as we have said, indicated a continuous attack with fists and by kicking on the deceased and whether the applicant used fists or feet in the attack was of no significance because in a joint attack resulting in death, each participant is liable for the death and it does not matter who inflicted the fatal blow. The refusal by the Judge to give the example as suggested at the trial by counsel for the applicant does not assist the applicant. There was ample evidence for the jury to arrive at the verdict of manslaughter.

23. For the reasons stated above, we refuse the application for leave to appeal against conviction and the application is dismissed.

Representation:

Mr A A Bruce SC, SADPP and Mr Martin Hui Siu-ting GC, of the Department of Justice, for the respondent

Mr John Haynes, of the Legal Aid Department for the applicant