Kwan Suen-fu v. The Queen
Read the full judgment text of CACC 233/1972 on BabelCite. This Court of Appeal judgment.
1. The appellant, a youth aged 16 1/2 years, was convicted of murder. He appealed against his conviction and on the hearing of the appeal we quashed the conviction saying that we would give our reasons for so doing at a later stage. We now do so.
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CACC000233/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 233 OF 1972 -----------------
Coram: Rigby, C.J., McMullin and Leonard, JJ. Date of Judgment: 27th September, 1972. ----------------- JUDGMENT ----------------- 1. The appellant, a youth aged 16 1/2 years, was convicted of murder. He appealed against his conviction and on the hearing of the appeal we quashed the conviction saying that we would give our reasons for so doing at a later stage. We now do so. 2. The facts before the trial court were briefly as follows. At about 1 p.m on the 14th November, a man named Leung Sang was sitting at a coffee stall in Pokfulam Village with his 20 year old son Leung Chung Pang and an adopted son, aged 19 years, called Lam Yiu Kam, three other persons and an elderly man. They were sitting at two separate tables: Leung Sang with the elderly man and Leung Chung Pang, the adopted son and the three other persons at another table. Of these three other persons two were, in fact, police constables. Whilst they were so sitting there a quarrel arose over some entirely trivial matter between Leung Chung Pang and a group of four youths who were also in the coffee shop. It would appear that Leung Chung Pang thought that he was being stared at by one of the young men in the opposite party, a person named Fuk Chai, and he resented it. Angry words were passed and it became evident that a quarrel was imminent. At this stage the two police constables, instead of making any attempt whatsoever to placate the rival parties, apparently regarded discretion as the better part of valour and they got up and left. Their conduct does little credit to them. The situation deteriorated and there is some suggestion that other persons, friends of Fuk Chai and his party, arrived on the scene. Seeing that the situation was worsening Leung Sang, his son, his adopted son and the one or two persons still remaining in his party, took to their heels and ran. However, before leaving the coffee shop Leung Sang and his son had armed themselves with bottles. The route they took through Pokfulam Village before coming out of the village on to the narrow pathway leading up to Pokfulam Road was, of necessity, through narrow and twisted streets or paths. On the way through the village they again encountered their assailants who, it is said, not only outnumbered them but some of them were armed with pieces of iron piping. The relatively narrow path out of Pokfulam Village leading to Pokfulam Road has a fairly steep upward gradient. It was the case for the prosecution that when Leung Sang and the three companions - one of whom was his adopted son Lam Yiu Kam - got to this path they were rapidly being overtaken and they had to turn and defend themselves. It was further the case for the prosecution that whilst they were so defending themselves the appellant managed to get behind Leung Sang and quite deliberately stabbed him in the back. The fight abruptly ceased; Leung Sang was taken to Queen Mary Hospital and he died within a few minutes of being admitted. The cause of death was shock and haemorrhage directly resulting from the stab wound in the back. 3. The appellant was arrested at a small knitting factory at Kwun Tong in the early morning hours of the 21st November. At the time of his arrest he made a statement under caution in which he said this:-
Ko Tai Sang is apparently another name for Leung Sang and Tai Kau Chung is a nickname for the son Leung Chung Pang. Chong Fuk is the real name for the young man Fuk Chai to whom we have earlier made reference. 4. Later that same day the appellant was formally charged with murder and in answer to the charge he said:-
5. At the trial the appellant confirmed that he had been present at the quarrel at the coffee shop but he said that so far from he and his party chasing Leung Chung Pang and his friends it was Leung Chung Pang and his associates who chased after him and his party. He described the route he took when running through the village until he emerged from the entrance to the village up to the fairly narrow path leading up to Pokfulam Road. On that path in front of him, armed with two bottles (one of which was broken) and blocking his way, was Leung Sang, a big man very much broader and taller than he himself - indeed, his nickname 'Ko Tai Sang' apparently means 'tall big Sang'. Then further up the path and behind Leung Sang was a man named Kwong Wah. According to the evidence given by the appellant at his trial this man, Kwong Wah, was being beaten up by four or five other persons. Kwong Wah was a man whom the appellant knew previously although he had not seen him earlier at the coffee stall where the quarrel originated. Running alongside the appellant was a fellow companion, Lo Chi-kwan. Seeing that Kwong Wah was both unarmed and heavily out-numbered and anxious to assist him the appellant, who was at that time himself entirely unarmed, called out to Lo Chi-Kwan to give him a knife. Lo did so. The appellant said that his purpose in asking for the knife was that he might get it to Kwong Wah, if necessary by throwing it to him, the more readily to assist him in his defence. By that time another man, Liang To by name, who had originally been with Fuk Chai and his party arrived at the scene. Liang To was armed with a piece of water piping. The appellant called to Liang To to jab at Leung Sang to divert his attention so that he himself might be able to slip past Leung Sang and throw the knife to his friend Kwong Wah. Leung Sang lashed out at Liang To with his bottle. The appellant attempted to divert the blow with his hand holding the knife. The knife was knocked out of his hand. He stooped to pick it up and regained hold of it but as he did so, Leung Sang swung round at him aiming at his head with the bottle in his right hand. At this time the appellant was slightly to the left and slightly behind Leung Sang. He ducked and swung upwards with his right hand holding the knife; his intention was to divert Leung Sang's arm upwards. Unfortunately, and quite unintentionally, the avoiding blow struck not Leung Sang's arm but his body and the knife penetrated his right side. That was the story put forward by the appellant. 6. Any really reliable and accurate assessment of what actually took place was rendered all the more difficult by the fact that, subject to one exception to which we will later refer, no other witness - other than the appellant - as to the incident itself was called either by the prosecution or by the defence. Secondly, although it was the case for the prosecution that it was Leung Sang and his party who were the pursued and not the pursuers, it was clear that at any rate in one instance the position was reversed since Leung Chung Pang, the son of the deceased, himself admitted at one stage that he himself, still armed with a bottle, was chasing after two persons along the Pokfulam Road to the bus-stop. It was only when he was unable to catch them that he turned and retraced his steps towards Pokfulam Village, and it was then he saw his father on one pathway leading from Pokfulam Village to Pokfulam Road. According to his evidence his father was with two of his comrades, and he also saw the appellant standing nearby with a bloodstained knife in his hand. The defence put forward was, in effect, a combination of accident, self-defence and, indeed, some evidence - albeit slender - on which the issue of provocation might be left to the jury for their consideration. 7. The main ground of appeal put forward by Mr. Patrick Woo, who appeared for the appellant, was that the learned trial judge had failed properly to direct or, alternatively, misdirected the jury on the burden of proof. The direction of which Mr. Woo complains is to be found in the following passage of the learned trial judge, and we think it desirable to set out the whole of the passage of which complaint is made, underlining those parts to which objection is taken.
8. Although the whole passage could have been very much more happily phrased we have no doubt whatsoever that what the learned judge was trying to tell the jury was that mere possibility had no part in a criminal trial and that all they were concerned with was probability. The use of the word "probability" or "probabilities" in directing a jury is always a dangerous expression - unless, of course, one is dealing with the onus of proof cast upon the defence in certain circumstances. The word itself clearly implies something less than certainty of conviction. However, if the learned judge had concluded his direction with the words:
we would have taken the view that although the direction might have been more happily worded there was no serious defect in it. Unfortunately, however, the learned judge having used the words "You're sure." went on to say in what must have been in practically the same breath:-
9. In the cases of R.v. Law(1). and R. v. Woods(2) the Court of Criminal Appeal commented adversely on the expressions "pretty certain" and "pretty sure" used respectively by Chairmen of Quarter Sessions in summing-up to the jury. In the former case they allowed the appeal and quashed the conviction on the ground that "The danger of importing such an expression was that the jury might feel that it was not necessary for them to be sure of the prisoner's guilt but it was enough if they felt 'pretty certain'." In the latter case, they dismissed the appeal and allowed the conviction to stand on the ground that the Chairman's direction, read as a whole, made it clear that "feeling pretty sure" was to be assimilated to "not having any reasonable doubt." and they went on to say that they felt that, in the context, the expression 'pretty sure', though unfortunate, could not give any wrong impression to a jury. The appeal was accordingly dismissed. 10. Undoubtedly there is a passage towards the end of the summing-up in the case in which the trial judge directed the jury that:
Again, almost at the conclusion of his summing-up he told the jury:
11. It has been said over and over again that there is no set or magic formula in a summing-up always providing it is made clear beyond any doubt to the jury that they must be satisfied by the evidence so that they can feel sure that the prosecution has established that the prisoner is guilty of the offence as charged (R. v. Hepworth and Fearnley(3) and Bullard v. The Queen(4).) The difficulty we found in this case was whether the entirely proper directions as to the onus of proof given in the concluding passages of the summing-up wholly dispel the earlier references to "acting on probabilities" and and being "practically certain" of the guilt of the accused so as to leave it clear beyond doubt in the mind of each and every juror that the essential prerequisite for conviction was not that he or she was "practically certain of the guilt of the accused" but entirely certain so as to feel quite sure of his guilt. 12. However, the criticism of the summing-up does not rest there. As we have already said the defences raised in this case were (1) Accident, (2) Self-defence, and, possibly (3) Some slender evidence just sufficient to warrant or justify leaving provocation for the consideration of the jury. There is clear authority for the proposition that where the defence of self-defence is raised there must be an express direction that the burden of negativing that defence remains throughout upon the prosecution, the duty of whom it is to prove that the defendant's act or acts went beyond the bounds of legitimate self-defence (see Harry Lobell v. The Queen(5) and R. v. Julien(6)). It is true that there was a general direction given to the jury by the learned trial judge towards the conclusion of his summing-up in the course of which he said:-
But we do not think that that general direction at that stage and in the context in which it was given - divorced as it was from that part of the summing-up where the judge had referred to the evidence put forward in respect of the plea of self-defence - was either sufficiently clear or sufficiently related to those facts as to bring it home to the jury beyond any doubt where the onus of proof lay. In this respect the following passage from the judgment of the Court of Appeal in the Julien case(6) (referred to above) seemed to us directly relevant; it reads:-
13. There is a further matter to which we must refer. The vital witness for the prosecution in this case was, of course, the deceased's adopted son, Lam Yiu Kam, a youth aged 19; apart from the appellant himself this youth was the only eye-witness apparently available - or, at any rate, the only eye-witness the prosecution were able to produce. He gave evidence of crucial importance on affirmation before the examining magistrate at the committal proceedings. The appellant, aged 16 1/2, was not legally represented at the committal proceedings and it is hardly surprising that he neither cross-examined this important witness Lam Yiu Kam nor any of the other witnesses. At the conclusion of the second day of the trial itself Crown Counsel gave notice to the trial judge that he would be asking for a ten day adjournment of the trial on the ground that Lam Yiu Kam was unavailable because he was in hospital awaiting an operation. It is relevant to observe that this vital witness had been admitted to hospital before the trial commenced, although it is fair to say that that fact was not known to Crown Counsel prosecuting the case. Defence counsel opposed the application for an adjournment on the ground that the delay involved would prejudice the accused. However, the trial judge acceded to the application of Crown Counsel and adjourned the case for twelve days. Defence counsel then made the somewhat surprising suggestion that an alternative to adjourning the case would be to allow the testimony of this vitally important witness to be admitted by reading to the jury, under section 39 of the Evidence Ordinance, the deposition he had made at the committal proceedings. The learned trial judge said that he had considered that course but he very rightly and properly pointed out to defence counsel that he doubted whether such a course was in the best interests of the accused himself for the very good reason that defence counsel would lose his right to cross-examine this vitally important witness. However, defence counsel replied that it was a responsibility that he was prepared to accept and the learned trial judge then, as an alternative to adjourning the case, permitted the deposition to be read to the jury. It is perhaps desirable that we should point out, at this stage, that Mr. Patrick Woo, who has argued this case for the appellant, was not the counsel who appeared in the lower court. The responsibility for what took place must lie fairly and squarely on the shoulders of defence counsel. But bearing in mind that this was virtually the only real evidence against the appellant we are in no doubt whatsoever that the deposition, the credibility of which was untested and untried by cross-examination, should not have been put before the jury and that the trial should, in fact, have been adjourned. Mr. Patrick Woo has drawn our attention to the case of R. v. Linley(8). In that case the defendant was charged with the robbery of the complainant, an elderly man. The complainant himself was not present at the trial and it would appear that his physical condition had deteriorated to such an extent that it was virtually certain that he would never be in sufficiently good health to come and give evidence at the trial. Counsel for the defence asked the trial judge to rule that in the absence of the complainant himself the deposition made by the complainant before the examining magistrate should not be permitted to be read. He made his submission on the ground that the complainant was the principal witness against the defendant, that his evidence was substantially the case for the prosecution and would inevitably have to be challenged as to its accuracy. He conceded that the prosecution might be put into a difficult position if the deposition was excluded, but the disadvantage to the prosecution should be weighed against the grave risk of injustice to the defendant if the deposition was read. The trial judge, Ashworth, J. as he then was, ruled that it would not be right to permit the deposition of the complainant to be read at the trial. We do most readily appreciate that in this case it was defence counsel himself who invited the learned trial judge to permit the deposition to be read out to the jury as an alternative to granting an adjournment of the case. Nevertheless, we feel that having regard to the crucial importance of this testimony the learned trial judge should not have acceded to the request of defence counsel and there was, in fact, a wrong exercise of his discretion in allowing the deposition to be put before the jury. However, the matter does not rest there, because in summing up to the jury the learned trial judge, in reference to the deposition of this witness, said that the evidence of Lam Yiu Kam was "not challenged". Mr. Patrick Woo submitted with considerable force that to refer to the deposition of this 19 year old youth as unchallenged evidence was misleading and prejudicial to the defence. We think there is great force in that contention. If the deposition was to have been admitted and relied upon at all the learned trial judge, in our view, should have pointed out that such testimony had not been cross-examined upon, that the deponent was not before the jury, that they were, therefore, deprived of the opportunity of assessing for themselves the weight and value to be given to his testimony and that they should accordingly regard the contents of the deposition with the greatest possible care. So far from any such warning having been given the only reference made by the trial judge to such testimony was that "his evidence is not challenged". As we have pointed out, there was no evidence whatsoever of the act of stabbing other than the deposition of Lam Yiu Kam. 14. It was a combination of these circumstances to which we have adverted in the course of this judgment that impelled us to our decision that this appeal should be allowed and the conviction quashed. Representation: Patrick Woo assigned for Appellant. Keil, S.C.C. for Crown/Respondent. (1) (1961) C.L.R. 53 (2) (1961) C.L.R. 324 (3) (1955) 39 Cr.App.R. 152 (4) (1957) A.C. 635. (5) (1957) 41 Cr.App.R. 100. (6) (1969) 1 W.L.R. 839. (7) (1967) 1 W.L.R. 1531. (8) (1959) C.L.R. 123. |