Case Document

CACC000231/1988

IN THE COURT OF APPELL	1988, No. 231
	(Criminal)

BETWEEN

	THE QUEEN	Respondent

	and

	HUI CHI MING	Applicant
	_____________

Coram: Hon. Cons, V.-P., Kempster & Clough JJ.A.

Date of hearing: 30th December, 1988.

Date of delivery of judgment: 30th December, 1988

_______________

J U D G M E N T

_______________

Cons, V,-P. delivered the judgment of the Court:

1. On the 27th April this year, the Applicant Hui Chi Ming ("the Defendant") was convicted by a jury before de Basto J. of the murder on the 2nd November 1985, of one Lee Wing Chiu. He now seeks leave to appeal against that conviction.

2. Having regard to the grounds which are put forward in support of the application it is not necessary to go at length into the details of the evidence It is sufficient to say that the Defendant was one of a number of men who, from a misguided sense of chivalry, set out to teach a lesson by way of physical assault to a man whom they believed to have humiliated the girlfriend of one of their number .In the course of the assault the man received some 63 individual injuries of one kind or another in particular a fracture of the skull inflicted by a metal water pipe, which caused his death 4 days later.

3. In passing we may observe that, sadly, it was a case of mistaken identity. The victim was completely innocent of interference in the love life of the girl in question. He met his death simply because he had the misfortune to run for a bus at the wrong moment.

4. The group which attacked the victim numbered 6 men in all, but the Defendant stood his trial for murder alone. The others involved had all been dealt with in earlier proceedings, in particular the principal offender, that is the principal in the sense that he was the instigator of the attack, being the boy friend of the girl whom they thought had been humiliated. It was he who carried the water pipe with which the fatal blow was inflicted. We understand that at his trial he was found guilty only of manslaughter.

5. In 1984 the Governor referred to this Court a situation which in some ways was not dissimilar from the present and which is ported as The Queen v. LuK Siu Keung [1984] H.K.L.R. 333, to which we were referred this morning. There two men were involved in a robbery. The victim of the robbery was fatally wounded by a knife. The principal offender, that is the man who actually carried the knife was convicted of robbery and manslaughter. At a separate and later trial the man whose case was subsequently referred to this Court was convicted of robbery and murder. The Court was referred to the English case of Quick and Paddison [1973] 57 CAR 722 to support an argument that the conviction for murder was in the circumstances unjust. The Court expressed no opinion as to that but contented itself by saying, in effect, that the intention of the man before them, the crucial question in the circumstances was a matter for the jury and the Court would not usurp the functions of the jury.

6. The first ground of appeal relies upon those two cases and is in these words -

" The learned Trial Judge ought note to lave prevented Defence Counsel from adducing evidence that the principal offender had been found guilty of manslaughter since the fact of that conviction was relevant the jury's decision to finding what was the nature of the attack the Appellant intended to participate in and the Court of Appeal will be invited find that on the facts of this case the decision of the English Court of Appeal in R. v, Quick and Paddison [1973] 57 CAR 722 is more relevant than the decision of the Hong Kong Court of Appeal in R. V. LuK Siu Keung [1984] HKLR 333."

The facts of Quick and Paddison were most unusual. Both defendants were male nurses in a mental hospital. Quick eventually pleaded guilty to assault upon a paraplegic patient. For reasons which it is not necessary to go into now, the conviction was quashed by the Court of Appeal. Paddison was convicted after trial as an aider and abetter of Quick. The prosecution case was that he encouraged Quick, in that knowing what Quick was going to do, he got the other patients in the room out of the way.

7. In the particular circumstances forced upon the English Court of Appeal by reason of the course taken at the trial below, the Court felt that it was "most unlikely that Paddison would have known what Quick intended to do" and that the quashing of Quick's Conviction had introduced an element of unreality into the verdict against Paddison" Which had therefore to be quashed as well. That situation is totally divorced from the present. The Defendant here knew full well what Ah Po intended to do. He acknowledged that in his evidence and in the cautioned statement that he gave to the police when eventually he came into cheir custody. The fact that another jury on a separate occasion, and for reasons which we do not know, may have come to a different conclusion with regard to the man himself is neither here nor there. It is a matter that may well be of importance and be taken into account in another quarter, but so far as he courts are concerned it was not a relevant matter for the jury's consideration. It could in no way have assisted them to decide what intention was held by the Defendant. We find no merit on this ground of appeal.

8. The second ground of appeal is in these words-

" The learned Trial Judge failed to direct the Jury properly as to the law relating to 'presence' at the steno of a crime, and the need for 'participation' in a common design."

Ground 7 must to a large extent be taken together with Ground 2 -

" The learned Trial judge failed to correlate important aspects of the Defence case with the law pertaining to them and instead merely related the evidence of each witness in turn."

In pursuance of that ground, Mr. Eddis has drawn our attention to several instances in the summing-up where he suggests that the judge could appropriately have expounded the law and made reference to the Defendant's assertion that he went there, as he said at one stage, merely to watch and later, to prevent if possible, the fighting that he suspected would take place.

9. The way in which any summing-up is framed and the details of its Contents must depend of course upon the circumstances of the particular case. The judge must give the jury the assistance that is appropriate to the particular question that the particular jury has to decide. In the present case the judge gave full directions as to what was necessary to be proved in order to found convictions of murder or manslaughter and as to factors which, if so found by the jury, would lead to acquittal. He repeated himself more than once, using different words in order to drive home his message to the jury. We do not propose to repeat all those passages. It is sufficient to draw attention to one or two.

10. Speaking of the possibility of murder he said -

"The Crown may establish the offence charged against the accused by proving that the accused was present when the victim was attacked in accordance with an understanding or arrangement to which the accused was a party, and that understanding or arrangement included the intent either to kill or to cause grievous bodily harm,"

He dealt with manslaughter and acquittal on the following page of his summing-up -

" If on the other hand, you are satisfied that the accused was present and that he shared an intention with his companions that the victim should be assaulted and caused some injury, but some injury less than some really serious bodily injury, then he would not be guilty of murder but he would be guilty manslaughter.

If you conclude that it was a reasonable possibility that the accused though present did not share any intention with the others that the victim should in any way be assaulted, then he would be entitled to an acquittals."

Earlier in his summing-up he had dealt, as he said, briefly with the defence put forward on behalf of the accused -

" The defence, very briefly, is that the accused though present at the bus stop, did not take any part in assaulting the deceased and that he never intended that anyone should be assaulted,, and he said that he left the pier to stop Ah Po from causing trouble."

Later he went into the Defendant's evidence in detail.

11. In our view these directions were sufficient having regard to the particular circumstances and questions raised.

12. The remaining grounds are riot put forward in themselves as serious failures or omissions but is suggested that taken together they lead to the conclusion suggested in the 8th Ground that the conviciton was, as a whole, unsafe and unsatisfactory.

13. Ground 3 argues that "the learned trial judge, whilst informing the jury that the accused gave evidence and had no previous convictions, failed to inform and direct the jury of the effect of these facts on their assessments of his evidence." It is quite true that then judge did not do so. He mace a curt and almost passing reference to the Defendant's lack of convictions.

"He has no previous convictions and whilst that is a factor that you will take into consideration, it is of course not a defence."

He could instead as has been suggested by various authorities have expressly related the lack of convictions to the question of the Defendant's credibility. Nevertheless in the circumstances it is difficult to think how else the jury could have taken them into account, assuming they heeded the judge's direction.

14. Ground 4 is that "the learned trial judge failed to give any direction at all on the effect of the accused's own cautioned statement which included admissions and explanations." That again is quite true. He made only casual reference to the Defendant's having made a statement. But he did deal fully with the Defendant's evidence, which itself was an amplification of the cautioned statement and did not differ in any way in substance. The fact that the statement was given as soon as he was taken into custody would have carried little weight with the jury, because by then it was some two years after die incident itself.

15. Ground 5 is that "the learned trial judge failed to give any direction regarding the effect of lies on the jury's assessment of the accused evidence." A summing-up will sometimes include a direction as to what value, if any is to be attributed to the fact of a defendant's telling or having told lies; and a jury will often be reminded that there may be reasons other than quilt for a defendant's telling lies.

16. In the present instance however the truthfulness of the Defendant's evidence was inextricably bound up with the question of his intent, and a direction in such teems would not have helped the jury. On the contrary it may perhaps have led to some confusion.

17. Ground 6 was premised upon a favourable answer from the Defendant's point of view, to Ground 1 in the circumstances it need detain us no longer.

18. Ground 7, we have already read. Further matters raised in relation thereto resolve themselves into either more "lost opportunities" where the judge could, or should, have made comments favourable to the Defendant when recounting the evidence of other witnesses in particular those present at the time of or just before the assault, or instances where the judge had in fact made comments, but gratuitously unfavourable to the Defendant.

19. We suppose that there is no summing-up which could not, upon subsequent reconsideration, be improved by a different choices of words or by the re-phrasing of particular passages, or by the inclusion or exclusion of comment upon some particular aspect of the evidence. But this Court is not concerned to see whether perfection was attained. It is concerned to see that the summing-up gave adequate and fair assistance to the jury. Having considered ail the matters that have been raised, we have come to the conclusion that in the present case it did.

20. For these reasons we refuse the application for leave to appeal.