HKSAR v. Yeung Man Fu

CACC000027/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.27
(Criminal)

-------------------------------

Coram: Hon. Power, V.-P. Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 21 October 1998

Date of Judgment: 21 October 1998

----------------------

J U D G M E N T

----------------------

Power, V.-P. (giving the judgment of the Court):

1. The applicant faced one count of murder which was particularized as follows: that he, on 1st July 1993, at Wang Chung House, Wang Tau Hom estate, Wong Tai Sin, Kowloon, murdered Tam King-wah. He pleaded not guilty to that charge and was convicted after trail before Wong J. and jury. He now seeks leave to appeal against that conviction.

2. Mr. Grounds has set out five grounds in his Perfected Grounds of Appeal but, at the outset we indicated that we wished first to hear him on Ground 3. This we have done and have also heard argument on that ground from Mr. Reading, who appears for HKSAR.

3. The ground reads as follows:

"The Learned Judge erred in law in that he wrongly prevented Defence Counsel from asking relevant questions in examination-in-chief."

4. The applicant, after arrest, gave a statement to the police, which he adopted when giving evidence. He had made that statement after having been told that his fingerprints had been found on a knife sheath. After this was made known to him, he said, "Ah Sir, I did take part in this case. Yes, I was told to do it. Ah Sir if I agree to point them out can you change me to a prosecution witness."

5. In the body of his statement referring to 30th June, i.e. the day before the offence, he said:

"That day after I had escorted my wife home, I didn't have anything special to do so I had a walk. I had a walk in Nathan Road. When I reached Nathan Road near Jordan Road, somebody called out to me. Sun Chai. After that, I went up to him, boarded the vehicle and chatted with him. Sun Chai said to me that Tor Pui Kuen's son was apprehended for stealing. He was also beaten up before taken to police station by the deceased in this case. Sun Chai said he was the proprietor of the fashion shop from where Tor Pui Kuen's son had stolen. Then Sun Chai said he would be chopped. Sun Chai asked me if I was free to help him. I promised to help him. Shortly afterwards, Ah Wing returned to the vehicle and drove me home. Whilst in the vehicle on the way back my home, Sun Sang said he would contact me the following day. After that, I returned home. On the following day, it was the day in question, in the afternoon, Sun Chai arranged to meet me in a restaurant in Mongkok. I cannot recall its name. It was in Shanghai Street. When I arrived there, Sun Chai was already there and I went up to him and sat down. After I had sat down, Sun Chai said we would have to wait for two other persons. Some time later, the other two arrived. One after the other. Four of us boarded a vehicle. We boarded a private car. The car belonged either to Sun Chai or Yip Chai. The car was parked opposite to the restaurant. Having boarded the car, I drove to Poplar Street to fetch 'ka chang'. Having taken them and put them into the boot, I boarded the vehicle again. I then drove to the scene. That was Lok Fu. The things were hidden in the shrubs after we arrived. We then waited for that person to come. The man came. Something happened before that. That was Sun Chai walked around with us to inspect the vicinity. Sun Chai also told us where the vehicle would be parked. Sun Chai said a taxi would come to pick us up. Sun Chai walked over to the Mass Transit Railway Station to wait for that person. I saw Sun Chai run towards us and told us to stand by. Then we stood by. The man arrived, we came out. I was the first person approached him. I chopped him once on his back. The others rushed towards him and chopped him. That person ran forward. The other persons chased after him to chop him. I did chase up. I saw the man enter the lobby of a building. Sun Chai then turned around and told me not to give chase anymore. We left by boarding the taxi. We then drove away."

6. The applicant referred to his statement in his evidence-in-chief as follows:

"Q. When you were confronted with a bag containing three plastic sheaths, it is stated in the statement that you became troubled and your head dropped and you said nothing, and the officer did not want to disturb you. May I just refer you to paragraph No.11. Do you see that portion:

A. Yes.

Q. Were you actually troubles?

A. At that time I was very frightened and I was confused.

Q. Were you actually troubled?

A. Yes, I was.

Q. Why were you troubled?

A. Because I was frightened.

Q. Any other reason?

A. Because at that time police told me that they knew that I was only helping my friend to do this case. The main person was not me and I wished to help the police to find out or locate the main person. At that time I was very sorry for what I had done.

Q. And you decided to spill or tell the police what really happened?

A. Right,.

Q. When you said, 'I did take part in this case, yet I was told to do it', did you mean that?

A. I don't quite understand. What do you mean by did I really mean it?

Q. Did you mean what you said, that you were told to do it? In other words, is it true?

A. Yes, it is true."

7. The applicant was then asked the following question:

"Mr. Yeung, we have got your story in the statement itself, but can you please tell the jury in your own words?"

8. At that stage, the court intervened saying:

"At this stage, Mr. Chan (defence counsel), I think I would like to ask the jury to leave for a few minutes. There is a short matter I would like to discuss with counsel."

9. The jury then left and the following exchange occurred.

"Court: Mr. Chan, I am unable to see what the statement says and what the accused is going to repeat amount to any defence at all."

10. We cannot but say that this was a premature observation as the judge had not heard the evidence from the applicant which counsel intended to lead. The applicant was entitled to give his version of what had occurred and to expand upon it if necessary, and if need be to go beyond what he had said in the statement. It is true that at this point the only exonerating circumstance that had been raised by his evidence was a suggestion that there had some degree of coercion. This was, as the judge pointed out and as counsel agreed, no defence to murder.

11. The judge pressed counsel to indicate what his defence was and counsel stated that the defence would be conducted on the basis that there was "no mens rea". The following exchange then occurred:

"Court: You say 'no mens rea' - when you chop someone with a beef-knife and went along with three others to attack a person who was unarmed, it's clear evidence of mens rea.

Mr. Chan: My Lord, perhaps at this stage you do not have - we have not heard the entire evidence of the accused's version. I think at the end of his evidence you will perhaps agree with me that he will fall under the limb of involuntary manslaughter. And there are decided cases to the effect that even when there is mens rea and there has been recklessness and the intention is to chop, but not to cause death, then that would be manslaughter.

Court: But not to cause grievous bodily harm, you see?

Mr. Chan: I appreciate that. My Lord, we have got many cases where there had been a fight and when knives were used.

Court It depends on the facts.

Mr. Court: Of course, I quite appreciate that. I would, at the end of the day, be urging your Lordship and also the jury that this is a special case, an unusual case. Perhaps if I may spill the beans, as it were, somewhat. The evidence of this accused would include, amongst other things - my Lord, you'll see in, I think, the agreed facts, and the accused will give evidence to the effect - that after the chopping the telephone of the taxi driver was used to call 999. And this is a fact which we obtained from the Crown that there was, other than the person who reported the incident, the accused, together with the others, actually reported to the police concerning an injured person. It goes towards the intention that they were there to chop him and to teach him a lesson but not to kill him."

12. The exchange having continued, the judge, shortly thereafter, remarked:

"If you chop somebody, I think the intention must be to cause serious bodily harm; isn't it."

13. The judge later observed:

"If he wants to give evidence, I should allow him to give evidence; but at the end of the day, should I tell the jury, sum up to the jury, that despite what he says, that still doesn't amount to a defence of murder."

The judge here made it plain that, although he had not heard the full evidence of the applicant, he had formed the view that there was no possible defence. It would have been much more appropriate for him to have exercised restraint at this stage and to have let the evidence unfold. The applicant then resumed giving evidence saying that Sun Chai, who had recruited him, had said that he wished to give a lesson to the one who had beaten up Tor's son. The applicant told of his reluctance to participate if knives were used and if others were involved. He said, however, that, despite this reluctance, he did continue to participate. He said that he took a knife but "at that time I thought we were only to give him a lesson. I did not anticipate that it would cost a man's life."

14. As to the chopping, his evidence was as follows:

"A. At that time Sun Chai was behind me; he said to me: 'This man has arrived.' He then pushed me so that I moved forward.

Q. Did you move forward to that man?

A. Yes.

Q. So that the jury can understand - that man is the deceased; is that right?

a. Right.

Q. What happened after that?

A. After I ran out, this man saw me. He said to me: 'What's the matter?' On seeing my knife, he rushed toward me and tried to snatch my knife.

q. As a result of which ...

A. On seeing this man dashing toward me I was scared, so I moved back a little big; and, accidentally my knife cut his arm.

Q. May I refer you to the photograph?

Tell us if you can remember, if you can, just say so. May I refer you to ...

Court: Cut where?

q. Cut which part?

A. Cut his hand, not arm ...

Q. His hand. In that case it is not necessary to go to the photograph.

A. ... because he tried to snatch my knife.

Q. Did you notice any injury?

A. I did not notice if there was any injury on him or not.

Q. What happened after that?

A. He turned around and immediately ran away from me. I then heard somebody behind me shouted out: 'Chop him.' So I immediately chopped him.

Court: On the back; was it?

A. Yes, chopped him on his back.

Q. And I think your statement did say that you chopped him on the back. How many times did you chop him on his back?

A. Once.

Q. Did you chop him with some force or what?

A. A small force. I just chopped with a small force. At that time I was scared; because they told me to do that, so I just did what I was told.

Q. I see. You just put up a show or something; is it?

A. Right.

Q. And then did they chase after this deceased?

A. The other people then chased after him; and when they arrived at that person, they started to chop him.

Shortly thereafter, the court adjourned until the following day.

15. The defence, as it had emerged in the course of proceedings, was that the applicant had reluctantly joined the party, which was going to give a lesson to the victim, that he had accidentally wounded him on the hand and that he then chopped him "with a small force" on the back. He appears to have been saying both that he never thought any serious harm was to be done to the victim and that he had, in fact, not seriously injured him.

16. On the following day when the court resumed, the following exchange occurred:

"Q. Just to round off the picture, in respect of P1, P2 and P3, were those statements made voluntarily to the police?

A. Yes.

Q. Was there any coercion, inducement, any force or any threat used upon you?

A. No.

Q. When you agreed to assist Sun Chai to teach the deceased a lesson, did you agree to participate in a serious wounding of the deceased?

A. I did not agree with him that we would chop him with the knives.

Q. But eventually you did participate in the chopping. Was there an agreement that the deceased would be chopped very seriously?

A. I had no intention to cause gradually wound on him. I just tried to give him a lesson.

Q. We understand that. In respect of yourself you did not intend. Was there an agreement between yourself and -

Court: Well, I cannot follow this question, Mr. Chan. We are not talking about any agreement. This issue is what he did.

Mr. Chan: My Lord, in respect of this case, this is a joint enterprise.

Court: But still, I mean an agreement can be inferred from the acts and conduct.

Mr. Chan: I entirely agree. May I just rephrase this, was there any verbal - I think there was discussion and I think from his evidence he did tell them what his intentions were, why he wanted -

Court: He has told the jury, I think. You can't cross-examine our witness now.

Mr. Chan: I am not cross-examining.

Court: You are.

Mr. Chan: My Lord, I am just asking him whether there was any verbal agreement.

Court: It has nothing to do with agreement."

17. We find it difficult to understand why the judge felt it was necessary to intervene at this stage. The applicant's defence was that he had never agreed to do any serious harm. He was entitled to give evidence as to what the agreement had been. The jury then left the courtroom and the judge indicated to counsel that the agreement, given the applicant's admission that he had chopped the deceased in company with the other three men, was not relevant. This misapprehends the defence which, as we have said, was that the applicant had never agreed to do more than give the victim a lesson and had, in fact, inflicted only a minor injury. This defence was, it must be said, not a compelling one but the applicant was entitled to have it squarely put before the jury.

18. The exchange between the judge and counsel concluded as follows:

"Court: What he said does not really change the facts, that he was holding this knife, he chopped this man, and there were other people who also chopped this man. Is that not right?

Mr. Chan: I accept that, my Lord. But I think after the accused gives evidence we will be moving on to the law as to the proper directions to be given to the jury.

Court: We can deal with that, but as far as your evidence-in-chief is concerned, you can't cross-examine your witness, you can't lead your witness. He answers questions. He didn't intend to kill him, but he knew that it would cause serious injury.

Mr. Chan: Yes. The intention of my question was to elaborate as to what he meant by 'to teach a lesson,' whether there was a previous agreement as to how the lesson is to be taught.

Court: Now, Mr. Chan, I think we have to use a bit of common sense. You don't teach a lesson by chopping a man with a beef knife, do you? There must be a limit, I suppose, isn't there?

Mr. Chan: There are various ways of looking at it. This is one way that your Lordship has adopted, but I am bound by my instructions.

Court: He has explained many times that he wants to teach him a lesson and he didn't intend to kill him.

Mr. Chan: We will just put this matter to rest, and I have no further questions.

Court: I don't think it is fair really to just drag on this aspect. It might lead the jury to the wrong conclusion. All the facts are now before the jury."

19. We are unable to understand what the judge meant when he suggested to counsel that he was trying to cross-examine his own witness. The question which counsel was seeking to ask was a proper one. It sought to elicit evidence which could be properly led for the defence. Counsel should not have been stopped from pursuing this matter.

20. Mr. Reading argues that whatever error there might have been was cured as the applicant's defence was fully canvassed during cross-examination. We do not agree. Cross-examination concentrated primarily upon differences that it was suggested existed between the statements made by the accused and the evidence which he gave in court. Aspects of the defence which counsel had been stopped from pursuing were, not surprisingly, given the ruling which the judge had made, never really touched upon again. It was important that the applicant be allowed fully to develop his defence. Proper comments upon it could and should have been left to be made in the summing-up. The ruling of the judge was, in our view, a serious irregularity which hindered the defence in a material way.

21. This application must be allowed. The hearing of the application will be treated as the hearing of the appeal and the appeal will be allowed.

(Having heard counsel we were satisfied that the interests of justice demanded a re-trial. We so order.)

Representation:

Mr. John Reading (D.P.P.) for Respondent.

Mr. C. Grounds instructed by Messrs. Bobby Tse & Co. for Applicant.