Kwong Pak Leung and Others v. The Queen

Case No.CACC 282/1974

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000282/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 282 OF 1974

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BETWEEN
	1. KWONG PAK LEUNG	Appellants
	2. NG KWOK KEUNG
	3. TAM SUM WU @ WU LEE
	and
	THE QUEEN	Respondent

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 24th October 1974.

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JUDGMENT

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Huggins, J.:

1. The three Appellants apply for leave to appeal against conviction and sentence. They were charged with murder but the jury returned a verdict of Not guilty of murder but Guilty of manslaughter. Much of the difficulty upon the appeal arises from the fact that for the purposes of sentence the learned judge put a question to the foreman of the jury and obtained an answer thereto. While we have some sympathy with the learned judge it was not appropriate to question the jury in this manner. There was nothing inconsistent or otherwise questionable about the verdict returned and there was no question of diminished responsibility in the case. The truth of the matter was that the prosecution had presented its case on the basis that the Appellants were guilty of murder or nothing and it was difficult to understand how the jury could have returned the verdict they did. No doubt the judge was puzzled but he should have considered himself bound by the verdict. The principles applicable in such a case were discussed by this Court in Wong Yin Yu v. Reg. 1972 H.K.L.R. 6. Upon the judge's charge in the present case the only possible basis for the verdict was an absence of malice aforethought and there is now reason to suspect that the jury confused malice aforethought with premeditation, although the learned judge had most carefully explained the difference. The question put to the foreman and his answer were:

	"COURT:	It would help me in my assessment of sentences if you could tell me the basis on which you find the defendants guilty of manslaughter. Is it on the question of not having the necessary malice aforethought or what?
	FOREMAN:	Yes, we find there is no proof of it by the prosecution of premeditation whatsoever; but we do feel there was sufficient proof of both their being there at the time - before, during and after - and we feel they were involved."

As it stands the first part of the answer is entirely ungrammatical but we cannot accept the submission of counsel for the first Appellant who suggests that the words "of premeditation whatsoever" should read "or premeditation whatsoever", which would negative any suspicion of confusion: the more probable explanation is that there should he a row of dots after the words "by the prosecution" to indicate a breaking off and a correction of what had just been said. The judge would then have been justified in requiring the jury to reconsider their verdict after he had given them a further direction as to the element of intent in murder. In passing we would reiterate that use of such technical phrases as "malice aforethought" is more apt to confuse than to assist a jury and ought to be avoided. Although we think the question should never have been put to the jury we are left with the foreman's answer, as was the Court in Wong Yin Yu v. Reg., and we must endeavour to give effect both to the verdict and to the finding of no premeditation contained in the answer. That finding is material both as to the conviction and as to the sentence.

2. The Deceased formerly lived with the second Appellant. They fell out as a result of a disagreement about a record-player and the Deceased went to live with one Cheung, a taxi driver. Cheung had been in financial straits and had borrowed money at a high rate of interest from a group of men which included the second and third Appellants. The first Appellant did not come into the picture until the day of the killing, but he appears then to have been concerned, along with the second and third Appellants, in pressing Cheung for repayment of the loan. There had been previous "negotiations" about repayment, Cheung having failed to meet his obligations. Details of those "negotiations" are immaterial except to mention that the second and third Appellants demonstrated that they were prepared to use strong-arm methods to recover the money. A witness called Kong Hung gave evidence that on 28th May the second Appellant told him "when they [the second Appellant and the Deceased] saw each other again there would be a fight and killing". The incident in which the Deceased died took place on 4th June in and immediately outside the Yacht Restaurant in Kowloon. Cheung was still in debt to the lenders and the Deceased had interested himself on Cheung's behalf. A meeting was arranged at the restaurant at which the Appellants, the Deceased and Cheung were all present. There was a discussion and after some time Cheung was told by the Deceased to leave. The reason for that is not clear. The discussion was obviously heated but there seems to have been no hint of violence to come. However, when the Deceased started to leave the restaurant a fight erupted.

3. It is necessary to describe very briefly the layout of the restaurant. It was on the first floor and the staircase came up at one end of the room. Not very far from the top of the stairs and so placed that all persons coming from the other end of the room must pass it was a table numbered 31. Tables No. 40 and 42 were at the other end of the restaurant. The Appellants, the Deceased and Cheung held their discussion at tables No. 40 and 42. A fight erupted as the Deceased was making his way out of the restaurant past table No. 31. Later his body was found in the street near the entrance to the restaurant and there was beside him a triangular file on which was found blood of group "B". Neither the Deceased nor any of the Appellants had blood of group "B".

4. Four possible versions of what happened were put before the jury. The case for the Crown was that the Appellants, together with some men who were sitting at table 31, had planned a possible attack upon the Deceased and had in the event put that plan into effect. The case for the Appellants was that they and the Deceased were jointly the victims of an attack by an unknown group of men. However, each of the Appellants had made a cautioned statements to the police and those statements disclosed the other two versions of the events. The first and second Appellants had said that the Deceased and a number of other persons attacked the Appellants, while the third Appellant had said that the Deceased attacked him and was in turn attacked by an unknown group. There was no evidence whatever of any prior communication between the Appellants and the persons at table 31 and it was no doubt for that reason that the jury said they found no premeditation whatsoever. There was no evidence as to who struck the two blows which caused the fatal wounds found on the Deceased. There were many other wounds on the body and even more cuts on the clothing taken from the body of the Deceased. It was carefully explained to the jury that in the absence of evidence that any of the Appellants struck the fatal blows they could convict only if they were satisfied that the Appellants had a common intent with whoever did strike those blows. Having rejected the possibility of premeditation the jury must have concluded that the fight erupted unexpectedly and that the Appellants had combined with some persons unknown to attack the Deceased but with the intention of doing something less than grievous bodily harm.

5. Of the various grounds of appeal which have been argued we think that the only ones having any substance were those relating to common intent and what we have to consider is (a) whether there was evidence upon which a jury could properly find that all those who attacked the Deceased were acting in pursuance of a common intent and (b) whether the judge adequately and fairly instructed the jury as to the issue of common incent.

6. Not only was there no evidence that any of the three Appellants struck either of the two atal blows but, as so often happens in this type of case, none of the witnesses was able or willing to testify to the identity of the assailants. Although great emphasis has been placed upon the fact that there was on the triangular file found beside the Deceased's body blood of group "B", that evidence does no more than confirm that someone other than the Appellants must have been involved in the fight, so that someone other than the Appellants may have struck the fatal blows. The Appellants' evidence that they and the Deceased were, together, attacked by another group of men was clearly disbelieved by the jury. The first Appellant in his cautioned statement admitted that he was armed with a knife. He said he saw a fight between his "cousin" and the Deceased and had then tried to block the Deceased's way as he left the restaurant: the Deceased attacked him with a weapon and he in turn chopped the Deceased. In his cautioned statement the second Appellant said he was armed with a knife, which he later threw away, but he did not admit being involved in the fight. On the other hand the third Appellant in his statement said that as they were all leaving the restaurant the Deceased picked up a triangular file from the ground and stabbed at him: a struggle ensued during which the two of them went down the stairs, ending up with the Deceased lying on top but being stabbed by others above him. We thus have some evidence that the first and third Appellants were directly involved in the fight, but none involving the second Appellant.

7. The case for the Crown rested in part upon evidence that the occupants of tables 31, 40 and 42 disappeared from the restaurant without paying their bills and that everyone else did pay. The waiter who had attended table 31 said there had been three men there, while it is clear that the Appellants had been at tables 40 and 42 - with Cheung and the Deceased. So Wah Kam, another waiter, testified that "four or five" persons had been stabbing someone on the staircase and the jury were in effect invited to find that the occupants of all three tables had combined to stab the Deceased. It is clear that the jury accepted that invitation although the judge expressed his own doubts about the reliability of So Wah Kam's evidence and the other witnesses' evidence suggested that there were less than six persons in all involved in the fight. Counsel have, not unnaturally, adopted the judge's criticism of the evidence of So Wah Kam. It seems probable that the jury, on the other hand, were inclined to believe the substance of his evidence and, judging the matter solely upon the record, we think the criticisms of So Wah Kam were not justified. We draw attention once more to the report of Reg. v. Wainwright (1875) 13 Cox. O.C. 171, 173:

While the Attorney-General was putting some questions to a witness with reference to a variation between his evidence before the coroner and that which he then gave, the Lord Chief Justice interposing, said that he did not attach much importance to the accordance between what a witness said at the trial and what he was reported in his depositions to have said in the police court or before the coroner. He know from his own experience how difficult it was to take down a witness's exact words. A witness expressed himself in a long sentence, the magistrates' clerk struck out a particular word, and with that omission it went down on the notes and was not the whole sentence. The whole meaning of the sentence which the witness had uttered might thereby be entirely altered. Too much importance ought not therefore to be attached to such variations, and if there were a substantial agreement between the evidence at the preliminary inquiry and that adduced at the trial, that was sufficient".

So Wah Kam did agree that there was some variation between his deposition and his evidence at the trial. We are not sure that it was ever satisfactorily established what the extent of the variation was and we are certainly not persuaded that the variation related to a material particular, even less to his evidence that he saw four or five men stabbing another on the staircase landing.

8. Counsel for the Appellants have urged that even accepting that the occupants of the three tables did attack the Deceased (and they submit that that has not been sufficiently proved) there was no evidence that they had a common intent as distinct from similar intents: they suggest that there may have been separate and distinct attacks by two groups at the same time but for different motives and that there was no true combination. It is argued by the Crown that that circumstances showed either a prior conspiracy to attack the Deceased (which is negatived by the jury's answer to the judge's question) or what has been described as a merger of similar intents, that is to say that anyone who joined the attack with knowledge that lethal weapons were being used must be taken to have acquiesced in the use of those weapons and to have intended at least that the Deceased be harmed, or put in fear, by them: by joining in the attack they inevitably reduced the Deceased's capability of defending himself against the original attack.

9. We think there was evidence upon which the jury could properly find a common intent among all those who took part in the attack on the Deceased. Although there might be a case where two persons or groups of persons quite independently embarked upon an attack on one victim at the same time, it is a possibility so remote that in the absence of evidence suggestive of separate intents a jury would be entitled to infer a common intent. The defence here was presented on the basis that the Appellants were victims of the same attack as that made on the Deceased and it was not incumbent on the judge to suggest to the jury such a remote possibility as that which has been suggested to this Court. It was a possibility which did not even arise on the third Appellant's statement as it stood, but only upon that statement combined with the jury's obvious finding that the third Appellant was involved in an attack upon the Deceased and was not merely defending himself against an attack by the Deceased. The judge was criticised for having referred to the first Defendant's evidence that he and the Deceased were both attacked by a group of people whom he, the first Defendant, did not know and who had no reason whatsoever to assault him. The second Appellant in his evidence did suggest that there was some reason for the other group to attack the Deceased for he said that the Deceased had on a previous occasion been struck by somebody as a result of a dispute about a call-girl. We do not think that the failure of the judge to refer to this part of the second Appellant's evidence amounted to a fatal non-direction.

10. If the Crown were relying not only upon a premeditated, combined attack by those at table 31 and those at tables 40 and 42 but also upon the possibility that a common intent was formed at the time of the incident, was the direction to the jury sufficient? It is contended that the jury should have been told explicitly that they were being asked to infer a common intent from nothing more than the fact that the persons alleged to have that intent happened to be attacking the victim at the same time, a fact which (counsel submitted) was itself very doubtful on the evidence, so that, even were we to hold that the direction was just sufficient, the verdict was unsafe. Dealing first with the sufficiency of the direction, we are sati fied that the learned judge gave an entirely correct direction so far as he went. He said:

	"Now, in this case, we have no evidence as to who actually inflicted the fatal blow or blows which caused the death of the deceased WONG On-chung. It is the Crown's case that the accused, acting together in pursuance of the common intent to cause death or grievous bodily harm, did actually cause the death of the deceased. Provided that the Crown has satisfied you beyond all reasonable doubt that there was such a common intention, it is not necessary also to prove that the accused struck the fatal blow or even inflicted any injury at all. All that is required of the Crown is to prove to your complete satisfaction that the accused actively participated in doing something to further the act or acts which resulted in the death of WONG On-chung. In other words, it must be shown that, in sharing the common intention with others, he had taken some active stops towards that end. Mere presence would not suffice. It is important for you to remember that the common intention must be a common intention to cause very serious bodily injury or death. If the common intention had been to cause some other damage or lesser injury and then death resulted, then the accused may be guilty of the lesser offence of manslaughter, but he would not be guilty of murder. If you find on the evidence that the accused, at the time of the killing, did not have the intent to cause death or serious bodily injury then you should go on to consider the possibility of the lesser offence of manslaughter.
	Manslaughter, for the purpose of this case, is the unlawful killing of another person without malice aforethought. A person commits manslaughter if, in doing some unlawful and dangerous act, he kills another by accident. Thus, if A and B attacked C with knives but their intention was not to kill C or cause him any really serious injury but simply to inflict some minor injuries and unfortunately as a result C died, this would be manslaughter, and not murder. Take another example. Whilst both A and B have knives, A intends to cause grievous bodily harm or death but B intends to cause only some lesser injury and C, the victim, dies as a result of the attack, A of course is guilty of murder because of his malice aforethought, but B is only guilty of manslaughter because he didn't have the requisite malice aforethought for murder, and there was no common intention between the two men. Therefore on applying the doctrine of common intent, a verdict of guilty of murder may be returned even if the defendant himself did not inflict any wound on the deceased, provided that he has shared in the common intent and did something in pursuance of that common intent".

No one suggested that there was direct evidence of a prior conspiracy and, indeed, the jury found that there was none. They must, therefore, have inferred a common intent from the other evidence. The judge had said to them:

"You may from the evidence that sharp weapons were used and from the extent of injuries inflicted infer that the attackers shared a common intention to cause the person pinned down either death or grievous bodily harm".

It might have been better if the judge had dealt expressly with the possibility that a second group took the opportunity to join in an attack which had already been started by others and had told the jury that before convicting they would have to find that the second group adopted the actions of the first group, but in so saying we have the benefit of hind-sight. On the whole we have come to the conclusion that there was no fatal lack of direction.

11. Was the verdict safe? Again the answer to the judge's question introduces an element of uncertainty. The jury felt the Appellants "were involved". In what way were they involved and how were they involved? Assuming that the jury meant that they were directly involved in the attack on the Deceased, we are faced with what is in effect a submission that that finding was not sufficiently supported by the evidence. As we have seen, no one of them was identified and their involvement in the attack could be inferred only from their motive, from their disappearance from the restaurant, from the number of persons alleged by So Wah Kam to have been in the attacking party and, in respect of the first and third Appellants, from their cautioned statements, which put them into the fight. It would have been understandable if the jury had come to the conclusion that there was a doubt as to all the Appellants, but they did not. On the one hand this Court must consider "the general feel of the case" (see Stafford v. Director of Public Prosecutions 1973 3 W.L.R. 719, 723) and on the other it is not concerned to re-try the case on paper (Long (1953) 57 Crim. App. R. 871). As to the first and third Appellants we see no reason to set aside the verdicts of the jury. As to the second Appellant, although his statement admitted that he was armed, there was no evidence to show that he was an active participant in the fight. Even on So Wah Kam's evidence the maximum number of assailants was five and as there were three Appellants at tables 40 and 42 and three unknown men at table 31 there remains a possibility that one of them did not join in the attack. Even if he was present in the vicinity of the fight, as to which there is no evidence, it might, without more, remain only a matter of grave suspicion that he was also aiding and abetting: there can be no guilt by association.

12. In the result we dismiss the applications for leave to appeal against conviction by the first and third Appellants but, treating this as the hearing of the appeal, we allow the appeal of the second Appellant and quash his conviction. His sentence is set aside.

13. The learned judge sentenced the first and third Appellants each to ten years' imprisonment. It is apparent that he regarded this as a serious offence and was no doubt moved by the fact that the Deceased had been the victim of vicious usurers and that the attack was related to his debts. While another judge might have been less severe we are unable to say that the sentences imposed were such that we ought to interfere and the applications of these Appellants for leave to appeal against sentence are dismissed.

24th October 1974.

Representation: