Cheung Chiu-ming v. The Queen

CACC000260/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 260 OF 1973

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Coram: Full Court (McMullin, Pickering & Trainor, JJ.)

Date of Judgment: 18th June, 1973.

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JUDGMENT

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McMullin, J. :

1. The appellant, CHEUNG Chiu-ming, was charged before the Supreme Court in an indictment containing three counts of wounding with intent contrary to Section 17 of the Offences Against The Person Ordinance Cap. 212. It was not in dispute that on the 28th of December 1972 at Fuk Wing Street, in Kowloon the appellant did actually inflict upon the complainants mentioned in each of the three counts the wounds of which they complained. The jury unanimously acquitted the appellant in respect of the wounding referred to in the second and the third charges and acquitted him of wounding with intent in respect of the wounding laid in the first charge but found him guilty upon that charge of the lesser offence of unlawful wounding contrary to the provisions of Section 19.

2. It is contended upon the appeal that this verdict even if not perverse or inconsistent is nevertheless, on the facts disclosed, so unsafe and unsatisfactory that it ought not be allowed to stand.

3. The victim on the first count was the manager of a cooked-food stall in Fuk Wing Street. The victims on the second and third counts were employees at that stall. It is common ground that the appellant himself was in the position of an employee at the same stall, but that for a short period prior to the 28th of December he had been laid off. On that day he was in the vicinity drinking a bottle of beer at an adjacent stall where there was a television set which he was watching. At about 7.30 p.m. the appellant carried a bottle of beer and a glass with beer in it from the stall where he had been watching television to the stall where the victim on the first count, LI Fuk-cheung, the manager, was working. A conversation ensued between them the subject of which was the possibility of his returning to work for Li and, although both parties give different accounts of the matter, it is common ground that that conversation became heated. According to the manager, it was because he was unable to offer the appellant any employment as a result of which the appellant accused the manager of being cheeky and aimed a blow at him with his bottle of beer. According to the appellant, it was because the manager became angry at his questioning and then used terms of abuse concerning the appellant's mother as a result of which the appellant becoming angry splashed him with beer from his glass. What happened thereafter was obviously a brief and confused melee in the course of which all three victims (the manager, and two of his employees) received their injuries and the appellant himself received a wound to the forehead and scalp which later required stitching in hospital.

4. Mr. Bokhary for the appellant, pursuant to the matters set out at length in the first of his grounds of appeal, pointed out a number of contradictions in the evidence given by the four principal eye-witnesses. He contended that the picture thus displayed to the jury was not sufficiently oherent to support a verdict of guilty in respect of any offence whatsoever. It is unnecessary to go into these discordances in detail. If this had been the only matter of complaint we could not have said that the verdict was unsatisfactory since the learned Commissioner was careful to point out, in an address which, as counsel for the defence concedes was very favourable to the appellant, the various confusions upon which counsel relies. In deed he did so with a reiterated emphasis which can have left the jury in little doubt that the learned Commissioner himself regarded this body of testimony as unreliable and the jury, although so clearly warned, chose nevertheless to convict upon it.

5. The second ground of appeal is however of more substance. It conceded by the Crown, in the course of the appeal, that the evidence of the prosecution witnesses, confused as it was in many particulars, that the first person to be stabbed by the appellant was the victim on the second count, Kwong. The appellant himself could give no coherent account of the order in which he struck out at different people but he did not deny that he struck the three victims, maintaining merely that he had done so in self-defence because, immediately following upon splashing the manager with beer he was, according to him, set upon by the manager and his fokis. In returning their verdicts upon the three counts the jury explicitly acquitted the appellant of the wounding of Kwong on the basis that he had been defending himself. The Crown concedes that the acquittal on the third count concerning the wounding of CHAN Yau proceeded upon the same basis. It was also conceded the entire event was one continuous action occupying no more than a minute or so of time. That being so Mr. Bokhary asks how the jury could have arrived at the conclusion that the appellant who, on their finding, was legitimately defending himself against attack when he stabbed the first victim and legitimately defending himself against attack when he stabbed the third victim was yet not defending himself legitimately when he stabbed the manager, Li. Mr. Dick, for the Crown, very fairly concedes the difficulties which the verdict raises. He supports the conviction however and would have it that the verdict was neither unsafe nor unsatisfactory since the question of the intent with which each of these injuries was inflicted was a question for the jury and there were two possible lines of reasoning which, upon the evidence as it stood, could have led them to the conclusion to which they came. Firstly, he says, that although the Crown is compelled by what appears upon the record to concede that the manager of the stall was the second person to be stabbed the jury itself might yet not have taken that view. The jury, in other words, may have taken the view that after the argument concerning employment and the ensuing episode, whether with the glass of beer of with the bear bottle, the appellant had either snatched up a knife, as he maintained he did in self-defence, or else had taken it out of his pocket as the manager alleged, had struck the manager with it and had then been set upon by the other fokis who came at once to the manager's rescue. There is no doubt that this would seem to be the most logical explanation of the verdict. If the jury had taken that view of the evidence then the stabbing of the manager, immediately following upon the argument and before any threat was offered to him by the other employees, would obviously offer little ground for concluding that the appellant had stabbed in self-defence. If, however, he was thereafter set upon by the other employees the situation then would be wholly different and self-defence a very real possibility. There are however two serious difficulties in the way of this view of the matter. Firstly, the only evidence upon which the jury could have come to that factual finding was the evidence of the manager himself which was, Mr. Dick conceded, at the very best ambiguous. Thus in the course of examination-in-chief he described how the appellant had aimed a blow at him with the beer bottle but said that the blow did not land upon his body because he warded it off. He was then asked what had happened next and he replied :

"The blow did not land and then he withdrew to the middle of the road ... While he was retreating he was trying to take something out from his pocket and I did not know what it was. I was very excited. At the time I did not know what to do. I saw KWONG Luk stand up and the defendant running towards KWONG Luk."

He then went on to say that he wanted to go over to intervene between KWONG Luk and the appellant and then he gave the following curious answer:

"At the time when I was trying to go over I felt I had been hit once at the chest."

Taken quite by itself that answer might conceivably mean that he had already been struck and wounded before he went to intervene between the appellant and Kwong. Having considered the passage in which this answer occurs it would appear, however, that this is a very dubious gloss to put upon it since after saying this he was immediately asked where he was at the time when he felt that he had been hit in the chest and he replied that he was then between KWONG Luk and the defendant thus indicating that by then he had already intervened. He went on to describe how he had possessed himself of a length of rubber hose with a metal tip (and it was common ground that he had indeed used such a object to strike the appelaant) for the purpose of intervening between the appellant (who was trying to run away) and yet another of the fokis, CHAN Yau. Mr. Dick himself drew our attention to the very much clearer account of this part of the incident which was given by the sixth prosecution witness, LI Tong. Li said, in effect that Kwong had been the first person who was struck by the appellant. No positive direction was given by the learned Commissioner as to the order in which the victims were struck and in view of the Crown's concession on the matter and, more importantly, in view of the evidence upon the record we are bound to say that if the jury came to the conclusion that the Manager Li was the first person to be struck there was, effectively, no evidence upon which such a finding could have been made.

6. The second difficulty attaching to this view of the matter is that, if the jury had concluded that the appellant gratuitously stabbed the manager immediately after the argument it would seem very strange that they nevertheless saw fit to convict only of the lesser charge. The manager's injury was by far the most grave of the injuries received by any of the three victims. In fact he very nearly died as a result of a stab wound in the chest which actually damaged the tissues of his heart. The jury could scarcely have regarded this as less than grievous bodily harm. Mr. Dick's attempt to rationalise this aspect of the verdict by suggesting that the jury might have taken the view that, although the appellant was not engaged in lawful self-defence against the manager, he had been so grossly provoked by what the manager had said to him that they considered this a mitigating factor sufficient to justify them in acquitting him of wounding with intent while convicting of the lesser offence does not recommend itself to us. It is not merely that provocation is, in law, no defence to such a charge. No question of provocation had over been raised and while this court would hesitate to interfere with the jury's right to return a merciful verdict, such an approach by the jury would seem very unlikely in view of the terrible gravity of the injury itself.

7. In the alternative, however, Mr. Dick argues that, irrespective of the order of occurrence of the several stabbings, the verdict is explicable by reference to the nature of the in juries inflicted on the three separate victims. The victim on the second count, KWONG Luk, was found to have a stab wound 2 cm. long over the anterior abdominal wall accompanied by a haematoma 3 inches in diameter. This wound cut the skin and the muscles of the abdomen but did not enter the abdominal cavity. It was described by the doctor as potentially dangerous. The victim on the third count, CHAN Yau, had a laceration 3 cm. long on the left arm which partly cut some of the underlying muscles. It was described by the doctor as a wound of moderate severity. The wound received by the manager, Li, has already been described. In the doctor's opinion his life was saved only by timely surgery. Crown counsel suggests that, even if the jury accepted the appellant's account of the affair to the extent of believing that he had been set upon by the manager and his fokis simultaneously and put in terror of his life so that he needed to defend himself against them, their acquitting the appellant on the charges concerning the other two victimes while convicting him on the charge concerning the manager Li could readily be explained on the assumption that the jury had found that the injuries to Kwong and CHAN Yau were such as showed no more than force proportionate to the needs of self-defence whereas the injury to Li was of itself sufficient to indicate malice rather than necessity. In theory the verdict is susceptible of such an explanation. There may well be cases in which the very nature of the wounds inflicted upon several victims in the course of a single action may afford a valid and even sufficient ground for a jury's distinguishing differing degree of intention in each separate act. We can only say that in all the circumstances here, if such was the process of reasoning whereby the jury arrived at their verdict, such a manner discriminating between the three cases laid at the appellant's door cound only be regarded as fanciful. In the absence of all the evidence to show a distinct alteration either in the appellant's situation or in his motive between the first and the second and between the second and the third stabbing we do not think that such a conclusion could be sustained.

8. In the upshot therefore whichever of these possible views of the evidence may have been taken, in view of the specific finding of self-defence as regards the other two victims, we do not think that it would be safe to allow the verdict on the remaining count to stand. It was for these reasons that upon the date of the hearing of the appeal the conviction was quashed and the sentence set aside.

Representation:

J. Bokhary instructed by Hastings & Co. for appellant.

J. Dick, C.C., for respondent.