Chan Charn Kau and Another v. The Queen
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CACC000235/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.235 OF 1972 -----------------
----------------- Coram: Full Court (Briggs, Huggins & Leonard. JJ.) Date of Judgment: 14th June, 1972 ----------------- JUDGMENT ----------------- 1. The appellants were indicted for the murder of one, Lo Shek Cham. They were found not guilty of murder but guilty of manslaughter on March 25th 1972. The verdict was unanimous. The first appellant was sentenced to three years imprisonment and the second to detention in a Training Centre. Both appellants appeal against their convictions. 2. The case for the Crown was that on August 21st 1971 some six young persons, aged between 16 and 18 years, and all members of the Wo On Lock Triad Society, were assembled together at the 4th floor of Block 6 of Li Cheng UK Resettlement Estate, Kowloon. One of the party saw a police patrol going past and so they dispersed. But by agreement they re-assembled on the second floor. 3. When they were there, there was some warning that their party was to be attacked by a rival gang, and so they dispersed again, in order to arm themselves with weapons for use, in case of an attack materialising. 4. The deceased, Lo Shek Cham, was at the top of a staircase leading from the second floor of the Block down to the first floor. He was armed with a pole, which was some five feet in length, and sharply pointed. He was attacked by the second appellant who was armed with a knife. He, the second appellant grabbed the deceased round the neck from behind. At the same time the first appellant rushed up the staircase. He was armed with a triangular file. The deceased lunged with his pole towards the first appellant and wounded him in the belly. The first appellant attacked the deceased with the triangular file from the front. He plunged it into the chest of the deceased with a downward and sideways movement towards the heart. The deceased died almost at once. 5. The case for the prosecution rested on the evidence of two youths who were present at the scene. The Trial Judge, in his summing-up to the jury, said that the case for the prosecution rested "entirely" on the evidence of these two witnesses. This is not quite accurate because certain statements made by the appellants to the police were in evidence. And these were in fact dealt with by the Judge at some length in his summing-up. 6. The Trial Judge advised the jury to ignore the evidence of one of the two witnesses, whom he found to be totally unreliable. This left the evidence of the second witness. His name was Ko Kwong Sing. 7. Ko Kwong Sing said that he was an eyewitness to what occurred. And he described the attack made by the first and second appellant as set out above. 8. The defence was that while the two appellants were on their way to a restaurant, a group of youths on the second floor of Block 6 taunted them and abused them. This incensed the first appellant who persuaded the second appellant to go up to the second floor to investigate. They armed themselves, the first appellant with a knife and the second with a triangular file, which they said they found, conveniently, on a handcart which was parked nearby. They went upstairs and found themselves surrounded by an armed gang of youths. 9. The first appellant tried to escape, but was wounded by a sharp piece of iron wielded by the deceased. The first appellant said that the deceased tried to deliver a second blow. The second appellant protected him. The deceased them aimed a blow at the second appellant who in defence of himself and the first appellant struck the deceased with the triangular file, thus causing his death. 10. In the version of the facts given by the appellants it was the second appellant, who was armed with the triangular file, and who delivered the fatal blow to the deceased. The case for the prosecution was that it was the first appellant who had the file and used it. 11. The Trial Judge dealt with the defence fully. He explained to the jury the defence of self-defence in detail. In the case of the second appellant, he said that it was open to the jury to return a verdict of manslaughter if they were satisfied that the second appellant was acting in defence of himself and in defence of his friend, if they thought that he used excessive force. 12. Counsel for the appellants admits that it was proper for the judge to leave this issue to the jury so far as the second appellant is concerned. 13. However the Judge also said that it was open to the jury to bring in a verdict of manslaughter in respect of the first appellant. In two separate parts in the summing-up the Judge said that if the jury believed the evidence of the witness Ko, they could return a verdict of manslaughter, if they thought that the intention of the appellant was neither to kill nor to inflict serious harm, but only to frighten him or to do some minor injury. 14. The grounds of appeal are that manslaughter should never have been left to the jury so far as the first appellant is concerned. And that it was a misdirection to do so. The Judge stressed more than once that the evidence of Ko was central to the case. But, says counsel for the appellants, the evidence of Ko can only be evidence that a murder had been committed. If, therefore, the jury bring in a verdict of manslaughter it must mean that Ko was disbelieved. If that is so the verdict of the jury is perverse. 15. We do not agree with this. We think that the jury might well have come to a different conclusion, have brought in a verdict of murder against the first appellant. But we do not know by what reasoning this jury arrived at the verdict they did. It may well be that the evidence of the witness Ko was only partially believed. But it may be that this verdict was simply, a merciful verdict. It is unhelpful to speculate. 16. In the circumstances the appeals are dismissed. 17. Two matters call for comment. In his summing-up the Trial Judge uses these words:-
18. The jury returned a verdict of manslaughter in each case. At that point the Judge asked the foreman of the jury various questions, for the purpose of finding out the basis for the verdict of manslaughter. During the course of a discussion in which both counsel for the Crown and Counsel for the accused took part, it became evident that the Judge was of the opinion that a jury may not return a verdict of manslaughter on an indictment for murder unless they first bring in a unanimous verdict of acquittal of murder. 19. In answer to a question from the Judge the foreman indicated that the jury were not unanimous in finding the appellants not guilty of murder. Some members were in favour of such a verdict and some not. 20. The Judge then used these words:-
21. It is only fair to say Crown counsel also thought that this was the true position. 22. The foreman then informed the Judge that they were now unanimous in acquitting the appellants of murder. 23. With due respect it is not necessary for a jury in a case of this nature to bring in two verdicts: first, a unanimous verdict of not guilty of murder and then a second verdict of guilty of manslaughter. The matter is governed by the proviso to Section 24 of the Jury Ordinance which reads thus:-
24. The word 'unless' in that proviso is all important. There is only one verdict to be given by the jury. And the correct verdict to be given in a case like the present is 'not guilty of murder but guilty of manslaughter' (either unanimously or by majority of not less than five). 25. The jury retired to consider their verdict at 2.45 and returned at 5.30 p.m. They found the first appellant guilty of manslaughter by a majority of 6 to 1 votes: they found the second appellant guilty of manslaughter unanimously. 26. The Trial Judge was obviously surprised at this and there followed an exchange between himself and the foreman of the jury, in which both counsel participated to same effect. This was partially due to the desire of the Judge that the jury should bring in a unanimous verdict that they acquitted the appellants of murder, a point with which I have already dealt. 27. However the matter went far beyond that. The Trial Judge endeavoured to find out from the jury on what basis they had reached their verdict. To a question to this effect put by the Judge, the foreman replied "on the basis of intention". 28. The following passage then occurs in the transcript:-
29. The Trial Judge then proceeded to ask the jury whether, in reaching this conclusion, they had believed the evidence of the chief witness for the prosecution whom he named. And there was a discussion about this during which the foreman came very near to disclosing what had taken place among the members of the jury, when they had retired and were discussing their possible findings. 30. When it is proper for a Trial Judge to put questions to a jury after they have brought in a verdict was raised in a differently constituted Full Court in the recent case of Wong Yin Yu v. R.(1). 31. The leading case is Larkin (2). Part of the headnote in that case reads as follows:-
32. To this there is an exception. If in a trial for manslaughter the defence is based on diminished responsibility, and a verdict of guilty of manslaughter is returned, it is right and proper for the judge to ask the jury if their verdict is based on that ground or not. 33. In Wong Yin Yu the Full Court drew attention to a report in the Criminal Law Review of R. v. Smith (3) and they approved of the following statement of the principle to follow:-
34. We again reiterate and adopt and adopt that principle. Where the verdict of a jury is free from doubt effect should be given to that verdict. In the presnet case the verdict of the jury was unambiguous: it left no room for doubt, and in our view it was improper for the Trial Judge to question the jury as he did. 35. The appeals are dismissed.
Representation: Mr. Jackson-Lipkin for Appellants Mr. Lucas, Ag. D.D.P.P. for Crown. (1) C.A. No. 792 of 1971 (2) 29 Cr. App. R. 18 (3) (No. 3) 1968 C.L.R. 375. |
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