Leung Wang Alias Leung Wing Sang v. The Queen

CACC000029/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 29 OF 1974

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Coram: Huggins, McMullin & Leonard, JJ.

Date of Judgment: 8th March 1974.

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JUDGMENT

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Huggins, J. :

1. This is an appeal against a conviction for murder. There were in the indictment altogether seven counts, the other six being in respect of offences of wounding with intent to do grievous bodily harm to other persons who were present at the scene and also to the Deceased himself. We may say at the outset that all three members of the court, having read the papers and, in particular, having read what appeared to us to be a very clear indication by the trial judge to the jury to return a verdict of Not Guilty of murder, approached the case with considerable doubts whether the evidence did support this conviction. We have now had the advantage of hearing very succinct and helpful arguments from Mr. Yu and Mr. Niamatullah and, in addition, we have taken the opportunity, which in the event has been of extreme value to us, to go and see the locus.

2. The charge arose out of events which took place in a guest house in Leighton Road at 3 o'clock in the morning on 19th July. There were three men at that time in Room 603 in that guest house. The evidence was that a number of armed men burst into the guest house and proceeded to chop most, if not all, of the persons who were therein, including the three men in Room 603. The Deceased was one of those men. According to the other two men in that room, Cheung and Sin, the Deceased was at the time that the attack started in the bathroom which was annexed to Room 603. There was evidence that he had gone into that room in his underpants. There was no evidence as to whether or not he had clothes in the bathroom with him. Mr. Cheung was sitting near the door to the room. From there he had a view of the entrance, he being on the staff of the guest house as an attendant and it being his responsibility to greet guests on arrival. Mr. Sin was asleep, or half asleep, on the bed. The attackers appeared to these two men to come in in three waves: they were in fact described as "three groups". Whether or not they actually arrived together or separately, it is very difficult to tell. What happened was that the first wave came in with knives and attacked Cheung and Sin. Those two men give slightly different version of how the Deceased came to be involved. One of them said that after the two of them had been attacked the attackers then kicked on the door of the bathroom upon which the Deceased "popped his head out of the door", presumably to see what was going on; that one of the attackers then aimed a blow at his head with a knife and, according to that witness, the blow actually landed, but the medical evidence throws some doubts upon that, although it is possible that an injury on the Deceased's head could have been made by the blunt side of a knife. The other witness suggests that two of the attackers went towards the bathroom and that one of them actually went into the bathroom and he saw this man coming out: he did not see him enter but he saw him coming out afterwards. By this time more attackers had come in and it is quite clear that Cheung and Sin were having considerable difficulty in protecting themselves from the attack which was being made. Their evidence was, however, that at no time did they see the Deceased come out of the bathroom. Eventually the attackers withdrew from Room 603. According to one of these two men it was when they saw the third wave of attackers approaching that they decided that it was time to escape through the bathroom and their evidence was, and it is supported by other witnesses, that they did in fact climb out through the bathroom window, and they were rescued from outside the house. They said that when they went through the bathroom they saw no sign of the Deceased. It was, therefore, the case for the prosecution that the Deceased had been so terrified by the attack which had been made upon the guest house, and indeed upon himself, for there were on him two injuries (the exact time when they were inflicted is not clear but he had two quite serious cut wounds, one of them on his wrist and one on his elbow), that he climbed out on to the outside of the building and there either fell, or less probably jumped, in order to escape the attackers. This is what the other two men, Cheung and Sin, did - they climbed out and got on to some projections which were on the side of the building below the window. Immediately below was an asbestos awning about eighteen inches to two feet in width supported by iron rods led into the side of the building. One of the two men actually went through this because he jumped too hard, but it would appear that it was the sort of structure which could, with care, bear the weight of a man and the Crown's contention has been that this man must have gone along this or some similar part of the building for a considerable distance in order to keep out of harm's way. I say "for some considerable distance" because the photographs do not show quite as clearly as does a view on the ground how far from the bathroom window, or from a vertical projection from the window, the body of the Deceased was found lying, dressed, in the gutter after the event. We inspected all the rooms on this side of the guest house and also went up the stairs on to the roof. There is another residence at the head of the staircase at roof level.

3. There was evidence from a young man who had come to Leighton Road with the Appellant. The Appellant was one of those who was definitely identified as being among the attacking party. This young man, Mr. Kwok, told the court that he had been with the Appellant for some time that night, that he had been told by the people he came with, including the Appellant, to wait downstairs. They went up. They came down about five minutes later, the Appellant saying "There's a struggle. Run away". Kwok had seen the Appellant with a knife earlier in the evening.

4. Now the case put forward by Mr. Yu, with considerable force, was that it was unsafe to convict upon this evidence. Indeed he went so far as to say that having regard to the learned judge's directions and his obvious invitation to which I have referred, the verdict was perverse and he challenged the inference that the Deceased must have climbed out of this window and met his death as a result of climbing out. This is where we have found great assistance in seeing the premises - and I should have mentioned that very properly counsel in the court below invited the judge and the jury to see the locus and we have no doubt that the jury obtained the same assistance which we have had. We think it must have been as a result of what they saw that the jury found themselves able to draw the inferences which they did. This is a very small room: the bathroom is extremely cramped. The jury must have been satisfied that Cheung and Sin would have been aware had the Deceased come out of the bathroom through Room 603. Having seen that room, we think that they were entitled to draw that inference. If the Deceased did not come through that way that means that he must have gone out through the bathroom window. The learned judge properly directed the jury that if the Deceased went out of that window as a result of being put in fear by the attack then it mattered not whether the Appellant was actually present at the moment that the Deceased fell to his death. I make this point because the young man, Kwok, gave evidence that at the time that this Appellant came down the stairs and they both ran away he had not seen anybody fall from the building into the gutter. Whether that was accepted by the jury or not we think is immaterial. The important thing is that it was because of the fear which was aroused by the attack in which this Appellant was undoubtedly involved that the Deceased climbed out of the window and it was as a result of his being in this precarious position outside the building that he died.

5. In our view, therefore, there was evidence which justified the jury in coming to the conclusion that this man was guilty of murder. That being so, although we had at one stage considerable doubts, now we are perfectly satisfied that the jury were entitled to find as they did and it is not open to us in this court to interfere with their verdict.

6. The application for leave to appeal is dismissed.

8th March 1974.

Representation: