Siu King Him and Others v. The Queen
|
CACC000222/1979 [Gang murder - common intent - Are provocation and self defence open to armed killer.]
-----------------
----------------- Coram: Roberts, C.J., McMullin, J.A. & Leonard, J. Date of Judgment: 13 March 1980 ----------------- JUDGMENT ----------------- Roberts, C.J.: Introduction 1. The four appellants, who were respectively the first defendant (D1), the second defendant (D2), the fourth defendant (D4) and the sixth defendant (D6), were charged with two other men, NG Wai-por, the third defendant (D3) and LAW Wing-shun, the fifth defendant (D5) with the murder of LAU Chak-mo on the 2nd March, 1978 (Count 1). 2. Count 2 charged D1, D2, D4 and D6 with robbery of a number of persons on the same occasion. 3. Counts 3 and 4 charged D2 only with possession of arms and ammunition without a licence. Counts 5 and 6 charged D3 only with possession of arms and ammunition without a licence. Count 7 charged D5 with possession of arms without a licence. 4. D1, who took part in the planning of the robbery but was not himself present at it, pleaded guilty to manslaughter (Count 1) and robbery (Count 2) during the trial and was sentenced to eight years' imprisonment on each count, the sentences to run concurrently. He has sought leave to appeal against sentence and we shall deal separately with his application in due course. 5. D2 pleaded guilty to robbery (Count 2) and to possession of arms and possession of ammunition without a licence (Counts 3 and 4). He was sentenced to twelve years, five years and five years' imprisonment, the sentences to run concurrently. He sought leave to appeal against his conviction for murder (Count 1) but not against any of the sentences imposed. 6. D3 was convicted on Counts 5 and 6 and sentenced to three years' imprisonment concurrent on each. He has not sought leave to appeal against conviction or sentence. 7. D4 pleaded guilty to robbery and was sentenced to twelve years' imprisonment (Count 2). He has sought leave to appeal only against his conviction for murder (Count 1). 8. D5 was tried separately and is of no concern in this appeal. 9. D6 pleaded guilty to robbery and was convicted of murder (Counts 1 and 2). He has sought leave to appeal only against his conviction for murder. Summary of facts 10. The killing of the victim, Sergeant LAU Chak-mo of the Royal Hong Kong Police Force, took place during the course of an armed robbery carried out against an illegal gambling "stall", early in the morning of the 2nd March, 1978. 11. On 26th or 27th February, 1978, D1, and a friend of his (SUEN Chi-keung) had a chance meeting in the street with D6, who was the leader of a gang which was in possession of three hand-guns. This gang included D2, D4, D6, YU Wing-sang, who was called as a witness by the Crown (PW3) and SHUM Sik-chang, known as "Ah Hang". 12. D6 asked D1 if he knew of a suitable target for the gang to rob. D1 replied that he knew of a gambling stall in Shamshuipo. This had only recently opened and operated at night in premises used during the day as a workshop for calico printing. It was arranged between them that there should be a meeting to discuss the matter further that same evening. 13. Present at this later meeting were D1, D6, Yu (PW3), Suen and Ah Hang (who took part in the raid and was tried and convicted of the murder of Sergeant LAU Chak-mo in a separate trial, which took place after that with which we are concerned). At this meeting, D1 agreed to inspect the premises, to see if they were a suitable target for the robbery. 14. On the afternoon of 1st March, the same five persons met again. On this occasion, D1 said that he thought the stall would be worth raiding. There was some discussion as to the possibility of the presence of members of the C.I.D. D1 replied that he did not think that there were any of them there yet, as the stall had only been operating for a short time, but that he thought that a police raid was imminent. 15. D6 thereupon said, according to PW3, "What the fuck are you afraid of, we have three cannons. When we hit the joint, as soon as we enter the premises, we will shoot once or twice towards the ceiling. I don't think the people up there would be so foolish as to fight it out." 16. D1, who knew KWOK Shan-sai, the landlord of the premises in which the gambling stall was operating, undertook to secure a set of keys. 17. It was agreed that D1 and Suen should divide between them one share of the proceeds and that each man who took part in the raid itself should get a similar share. 18. During the afternoon of 1st March D1 managed to obtain from Kwok the loan of the keys to the premises; these were handed by D1 to Suen, who arranged for them to be duplicated before they were given back to Kwok. 19. Suen, D1, PW3, D2, D6 and Ah Hang, met about 6 p.m. in a restaurant. D1 handed over the keys to the premises. It was agreed that he should lure Kwok away from the premises so that the gang could enter and inspect them. He left the restaurant; a few minutes later, he phoned to say that the coast was clear. Suen, PW3, D2, D6 and Ah Hang walked to the premises, which were on the other side of the road, and entered, using the duplicate keys. They remained there about 20 minutes, discussing how they should conduct the raid and each person's part in it. 20. It was arranged at the 6 p.m. meeting that the raid would take place on the following morning, but that D1 and Suen would check that the stall was operating and that there were no police officers there and would let the others know. About 11 p.m., Suen reported to Yu by phone that the stall was operating and that no C.I.D. men were present. Yu asked him to check again later. He did so and at about 2 a.m. passed a further message to Yu that gambling was continuing. Yu passed this information to Ah Hang, who procured a stolen car for the purposes of the raid. After Suen's report at 11 p.m., Yu had got in touch with D4, telling him that D6 wanted D4 to take part in a robbery of a gambling stall, which D4 agreed to do. He was told to be at 444A Nathan Road at 3 a.m. 21. D2, D4 and Suen duly met at this address, where they were joined by Ah Hang who took them to his flat in the same building. D6 had three revolvers, one of which he retained in his own possession. He gave another to D4 and the third, a palm gun, to Ah Hang. All three weapons were loaded. D2 had a knife. However, on the way to the gambling stall, D2 handed his knife to PW3, saying that he would be the 'bag' man, that is to say, he would collect the money and valuables to be taken from the gamblers. 22. When the group reached the premises, they opened the metal and wooden doors with their keys. Inside was another door. They pressed the buzzer, the door was partly opened, whereupon the gang pushed it open and rushed in. Inside, a number of men were gambling, sitting at a table in the main room. As the gang burst in, a shot was fired by Ah Hang into the ceiling and the gamblers were told to lie on the floor. 23. However, one of those present and taking part in the gambling was Sergeant Lau, a C.I.D. officer. He ran towards the wash-room in order to take cover. As he did so, he took out his service revolver, which he was carrying with him, and fired twice, hitting D6 in the left hand with one of the shots. D6 fired two shots, one of which hit the Sergeant in the head and killed him. There was an interval of only seconds between the first shot fired by Ah Hang and the exchange of shots between D6 and Lau. 24. The medical evidence was that D6 had an injury to his finger which was consistent with a bullet wound, though D6 was only arrested by the police about three months' later and consistently refused to allow the doctors to carry out tests which could have been conclusive that he had not suffered a bullet wound though they might not have been capable of establishing that he had. 25. When Lau fell to the floor, D6 shouted "See if he is dead. If not, give him one more shot." D4 retrieved the Sergeant's gun from underneath his body and put it on the table where the gamblers had been playing. It was subsequently removed by the gang when they left. 26. In spite of what had happened, the gang continued to rob the players of their cash and valuables, before leaving the premises and returning to 444A Nathan Road, where the proceeds of the robbery, amounting to about $28,000 in cash and various personal items, were distributed among the gang in the agreed shares. Case for the defence 27. D2 gave no evidence, called no witnesses and made no statement to the police which was put in evidence. 28. D4 called one witness, the effect of whose evidence was that D4 had intended to surrender himself to the police in relation to the robbery, but was arrested before he was able to do so. 29. D4 did not testify, but made a statement to the police on the 31st March, 1978, which was put in evidence. In this statement he admitted that he took part in the robbery; that he was armed with a gun; that he attempted to fire it at the ceiling of the casino, though he asserted that the gun did not go off, when he pulled the trigger; and that he received a share of the proceeds. 30. D6 gave evidence on oath. He admitted that he had taken part in the planning of the robbery; explained that he had done so because he was a police informer and was hoping to trap the others into taking part in a robbery and getting caught; conceded that he had provided the others with guns; insisted that he had not been present himself and had had nothing to do with the killing; but admitted that he had received part of the proceeds of the robbery. Burden of proof in case of manslaughter 31. The first of the two main grounds of appeal argued on behalf of D2 and D4 was that the judge had misdirected the jury as to the burden of proof which applied in relation to a possible alternative verdict of manslaughter. 32. The passage in the summing-up, at p.459, to which objection was taken, reads as follows-
33. It is said that the words at the beginning of this passage "If you think it probable" may have misled the jury into believing that an evidential burden lay upon D2 and D4 to show that firearms would only be used for firing warning shots, if they were to be acquitted of murder and convicted of manslaughter. 34. This short passage should not be taken by itself. It is necessary to look at such other parts of the summing-up as deal with the burden of proof; to see whether, taking the judgment as a whole, this passage could reasonably be said to have been likely to have misled the jury into a wrong approach to the evidence. 35. The judge dealt with the general burden of proof in the following terms-
36. Near the end of his summing-up, at page 465, the judge again reminds the jury that-
37. It is apparent, however, that counsel for the Crown considered that there was a possibility that the jury might have been misled by the use of the phrase referred to above. Therefore, at the conclusion of the judge's summing-up, he suggested that the judge might care to clarify the matter, in the following passage-
38. There was an error by the judge, in the passage to which exception was taken; but we do not consider that, in view of the correctness of his general directions as to the burden of proof and to the exchange with Crown Counsel at the very end of his summing up, that the jury could reasonably be thought to have been under any misapprehension as to their correct function, which was to be sure that the Crown had satisfied them as to all the principal elements which constitute the offence of murder. 39. Furthermore, even if it were accepted that the jury might have been misled, we are satisfied that, if the jury had been properly directed in the passage which has been criticised, to the effect that if they thought it reasonably possible that D2 and D4 believed that the firearms would only be used for warning shots, or if they were left in reasonable doubt as to that, they would, in the face of the evidence, have come to the same conclusion, for reasons which are set out in our later passage dealing with common intent. Direction on common intent 40. The second main ground of appeal advanced on behalf of D2 and D4 was that the judge failed to give an adequate direction as to the meaning of "common design" or "common intent". 41. The judge deals with this question in the following passage of his summing-up-
42. He considers the same question again when dealing with the evidence of YU, PW3. He comments as follows-
43. He also dealt with the matter in the passage from p. 459 which is quoted above. 44. The effect of R. v. Anderson and Morris (1) and R. v. Lovesey(2) is that, where there is a killing in the course of an expedition by several persons, one of whom went further than was contemplated by the common design, the others-
45. These cases did not deal with the intermediate situation, in which (unlike Anderson) the others knew that the killer was armed. In such circumstances, the others will be liable to be convicted of murder or manslaughter according to their own mens rea - i.e. the use to which they intended that the weapons would be put. If they thought it would be used only to frighten, this would be manslaughter. See R. v. Reid(3) in which Lawton L.J. dealt with the law relating to the liability of members of an armed gang in the following terms-
46. The intent with which D2 and D4 took part in the robbery has to be inferred from the circumstances. On any reading of the evidence, any jury must have come to the conclusion that there was a common design to use the firearms to intimidate. The Crown's case, however, was that the possibility of resistance was within the minds of the gang, on the evidence of PW3. They had specifically discussed the possibility of resistance from C.I.D. officers, though they did their best to minimize the dangers of meeting them. Certainly they would not have gone there if they had known the Sergeant was present, but they took loaded firearms, each containing several rounds. The Crown argued that this indicated that more than the firing of one or two warning shots was contemplated and suggests that they were prepared to fire other shots if necessary. Nor was there any evidence of any agreement that the guns would not be fired to overcome resistance, if this were encountered. 47. The Crown argued that there was no evidence that D6 went beyond what was tacitly agreed should happen if necessary and that all members of the gang were prepared to use whatever force was necessary to achieve their object, and to effect their escape. 48. At page 451 the Judge deals with the liability of a person who is party to a common design. He warns the jury that they must weigh the evidence against each accused separately and that they must consider the contention of the Crown that all three were "equally guilty because they were party to a common design to rob and to take any violent steps that were necessary to succeed in this robbery and to get away." 49. At page 458, the judge reminds the jury that "the question really is what design did the robbers have in carrying loaded firearms? He then summarizes the Crown case and such evidence as suggests that D2 and D4 did not contemplate that more than warning shots would be fired. 50. At the top of page 459, he reminds them that, if firearms were to be used at the most for warning shots the accused should be acquitted of murder and convicted of manslaughter only. He emphasizes that "the important point is what was in their minds as to what was going to happen immediately before the fatal shot was fired; what were the weapons for; what could reasonably be expected they would be used for?" 51. In the final passage of the summing-up already quoted, counsel reminded the judge that, if the jury were of the view that the gang shared an intent less than that of using whatever force was necessary, they could be properly convicted of manslaughter. The judge indicated to the jury that this accorded with his view of the law. 52. The judge did not specifically direct the jury to the effect that, if they were satisfied that D6 went beyond what was expressly or tacitly agreed, it would be proper for D2 and D4 to be convicted of manslaughter only. It would have been clearer if he had done so. But we do not think that the jury can have been under any misapprehension as to the law, in view of the passages quoted above. 53. He made it abundantly clear that if D2 or D4 believed that the firearms were to be used at the most for firing warning shots, they should be acquitted of murder, though they could be convicted of manslaughter. This is correct and we do not consider that they can have suffered any prejudice because the judge did not refer in terms to what is no more than the reverse side of the same argument. What is important in deciding upon the guilt of D2 and D4 was their intention, rather than that of D6. 54. Even if the judge's direction as to common design had been inadequate, which we do not accept, could it be said that any reasonable jury would have reached a different conclusion? 55. YU (PW3) was the vital witness for the Crown. As one of the robbers, he was an accomplice. The judge delivered a full and careful warning of the danger of accepting his evidence and there was no criticism of this part of his direction. By convicting D2, D4 and D6; the jury must have accepted the substance of PW3's evidence, which is of great importance in deciding the common intent of the members of the gang. 56. His evidence showed that the robbery was planned with the greatest care and that all those taking part in it knew that three members of the gang were armed with loaded firearms and another with a knife. 57. He described the discussions during the planning stages as to whether there would be any resistance and as to the likely presence of C.I.D. officers on the premises, on the realistic assumption that their presence would mean that there would be a risk of firearms being used against them. 58. According to PW3, D1 warned the gang that, although the casino had only been operating for two or three days, it would probably not be long before the police would discover it, at which point the likelihood of the police being present was greatly enhanced. 59. It was beyond dispute that the plan agreed by all those who took part was that revolvers would be carried and should be used to induce fear among the gamblers. Yu's evidence as to this is confirmed by D4 in his statement to the police. The only real issue for the jury was whether there was a common intent to do serious bodily harm. 60. Objection was taken by counsel for the appellants to the references by the judge to the conduct of the gang after the killing. We regard this objection as without substance. 61. What is material, for the purpose of gauging common design, is the intention which was in the minds of those who took part before the expedition began. However, in order to decide what this may have been, it is perfectly proper to look at the way in which those concerned behaved during and after the raid. If, for example, D2 and D4 had, immediately after the killing, disassociated themselves from all further action, this would have been cogent evidence that the killer had exceeded the common design. (See Cross on Evidence 4th Ed., p.39, "a person's anterior intention may also be proved by his subsequent acts".) 62. But, it is apparent that the killing of the Sergeant did not deter any of them. They continued with the robbery exactly as planned. They returned to their base in Nathan Road, and distributed the loot as agreed. 63. Against this background, it is hardly surprising that the jury should have concluded that this was a case in which those taking part intended, if necessary, to do more than use their guns for the purpose of inducing fear. Sixth defendant-provocation 64. Counsel for D6 submitted that the judge erred in not directing the jury that they must consider the possible justifications of provocation and self-defence. For convenience we shall refer to them as "defences", though they are not defences in the sense that any onus rests upon the accused to establish them since it is for the Crown to disprove them before a verdict of guilty of murder is justified. 65. The defence put forward at the trial by D6, and rejected by the jury, was that D6 was not present at all. Nevertheless, in R. v. Chan Ming(4) in which the defence of provocation, as in this case, was never raised at the trial, it was made clear that it is the duty of a judge "to direct the jury as to the possibility of a verdict of manslaughter if there is any material which would justify that verdict, even though the defence has not been raised by the defence and even though it may be inconsistent with the defence which actually has been raised" - per McMullin, J. at p.674. Thus it was argued that, even though the defence of D6 was one of alibi, the judge ought to have asked the jury to consider self-defence and provocation. 66. Counsel for D6 conceded that the only evidence on which a defence of provocation could conceivably have been based was a passage in the evidence of PW3, who testified that D6 described to him, after they had returned to the Nathan Road flat after the raid, how he (D6) had felt a hot sensation on his finger that he thought that he had been hit and that that is why he fired two shots in succession. This, it was submitted, was sufficient evidence of provocation to have obliged the judge to leave that defence to the jury. 67. Some reliance was placed on R. v. Edwards(5) in which the accused gave evidence that he had blackmailed the deceased, whereupon the deceased attacked him with a knife. The accused wrested this from the attacker and stabbed him to death. 68. Lord Pearson, delivering the opinion of the Board, said-
69. In the present case, an armed gang had burst into private premises in the small hours of the morning. They had made it clear, by the firing of weapons, not only that they were armed but that the weapons were loaded. It was surely a "predictable result" of the conduct of this armed group that their victims should retaliate with whatever force was available to them, including the use of firearms if they had any in their possession. 70. Applying the principles set out in Edwards, therefore, the judge was entitled to come to the conclusion that D6 could not rely on the use of a firearm by the victim as conduct constituting provocation sufficient to reduce his killing from murder to manslaughter. 71. Section 4 of the Homicide Ordinance (Cap. 339) which is in the same terms as section 3 of the U.K. Homicide Act 1957 requires that on a charge of murder, the question of whether the provocation was enough to make a reasonable man act as he did, shall be left to be determined by the jury "where there is evidence on which the jury can find that the person charged was provoked to lose his self-control." 72. We think that it would be a perversion of common-sense to say, as we were invited to do, that a member of an armed gang, some of whom had fired their revolvers, could assert that he was provoked to lose his self-control when one of the victims of his own unprovoked assault fired back. 73. Furthermore, there was not the slightest evidence to the effect that D6 was provoked to lose his self-control. He gave no such evidence himself. There is nothing in the testimony of PW3 to suggest that D6 ever asserted that he lost control of himself, as a result of anger which he felt when he was hit by a bullet fired by Sergeant Lau. 74. The judge did not put the question of provocation to the jury. He does not mention it in his summing-up. In our view, he was perfectly entitled to come to the conclusion that there was no evidence fit to put before the jury on the question of provocation. Sixth defendant and self-defence 75. Counsel for D6 complained of the judge's comment that the Sergeant "was fully entitled" to open up on the robbers and that if any of those robbers had been injured or killed, it would not have lain in his mouth to complain. It was argued that the victim went further than was necessary to defend himself and that D6 was therefore entitled to fire his own revolver in order to save his own life. 76. We were referred to Sees and Another v. R., a Privy Council decision reported in "The Times" of the 21st April, 1961. 77. The appellant, Sees, armed with a revolver boarded a boat owned by Captain Boatwright, seized the only weapon on board, a rifle, and fired a shot from his revolver to attract the attention of an accomplice ashore. Thus Captain Boatwright knew that the revolver was loaded. The appellant then went to the front of the boat, leaving the rifle behind. Captain Boatwright picked up the rifle and pointed at the appellant, saying "I'm going to kill you." The appellant immediately fired his revolver killing the Captain. 78. The Board refused to grant leave to appeal to the applicant. The reasons were not given. However, it must be presumed that the arguments advanced by counsel for the Crown, which are summarized in the report, prevailed. The Crown's submission was that Sees never had any right of self-defence. He was doing a criminal act from the moment he drew the gun. To establish self-defence, it was incumbent upon him to show that he was justified in causing some harm and, of course, he never had any such justification. 79. The trial judge had put it to the jury that the Captain was entitled to shoot and kill Sees and that Sees had no right to react and was bound, in those circumstances, "to accept execution". He directed the jury that what they had to decide was whether the Captain was entitled to kill Sees, to protect himself and his passengers or to prevent the theft of the ship. If he was, Sees could not plead self-defence. The judge left the matter to the jury because that was the defence put forward by Sees. There was thus, unlike the present case, evidence from the accused himself to go to the jury. 80. In determining what it is permissible for an accused person to do in self-defence, it is necessary to look at the circumstances in which the killing occurred and, in particular, at the conduct of the victim. 81. Common-sense suggests, and the law appears to conform, that if the victim reacts in a justifiable manner to an attack by the accused, the accused cannot be heard to say that he was entitled to retaliate in self-defence. 82. In this case, an armed gang broke into private premises in the small hours of the morning brandishing revolvers. Immediately after they entered, one of them fired a shot. The victim can hardly, in the confusion and terror of the moment, have been expected to gauge where the shot went, what its purpose was, or whether there would be further shots. 83. It is not necessary for us to consider whether any additional obligation lay on a police officer, even if not on duty, to do what he could to frustrate a violent crime in the course of its commission. For we consider that he was, as the judge said, entitled to oppose the armed incursion by a proportionate degree of force; and the use of a revolver is a proportionate reply to the use of a revolver. 84. A person actively engaged in a felony of violence can have no lawful excuse for committing further violence under the guise of self-defence. 85. Self-help is justifiable only when the wrong threatened or committed is of such a violent or imminent danger that immediate action is necessary to protect life and property. In the heat of the moment, fine judgments are not to be expected. It is lawful for the person in danger to act in a way which is reasonable in the circumstances as then believed by him, even if his belief was not correct. 86. If the victim acts reasonably, the assailant cannot plead, if he kills the victim, that he has himself acted in self-defence. This would be an outrage to good sense and is not the law. 87. We are satisfied that Sergeant Lau acted entirely reasonably in his self-defence, and in the defence of the others present. Therefore, the judge was correct not to put this defence to the jury since, in our view, no reasonable jury could have concluded that D6 was justified in killing Sergeant Lau in the name of self-defence. 88. Leave to appeal against conviction is refused to D2, D4 and D6. Representation: 1st appellant in person Downey (W.K. Lore & Co.) for 2nd & 3rd appellant Faulkner (Poon & Sum) for 4th appellant Chandler for the Crown/Respondent (1) (1966) 2 Q.B. 110. (2) (1970) 1 Q.B.D. 352. (3) (1976) 62 Cr. App. R. 109 at p. 112. (4) [1975] H.K.L.R. 666 (5) [1972] H.K.L.R. 301 P.C. |