Chan Kam-wah v. The Queen
Read the full judgment text of CACC 298/1972 on BabelCite. This Court of Appeal judgment.
1. This is an application for leave to appeal against a conviction for murder. We treated the application as the hearing of the appeal itself. The case for the prosecution was as follows:
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CACC000298/1972 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 298 OF 1972 -----------------
----------------- Coram: Full Court(Briggs, Huggins & Leonard, JJ) Date of Judgment: 6th July, 1972. ----------------- JUDGMENT ----------------- 1. This is an application for leave to appeal against a conviction for murder. We treated the application as the hearing of the appeal itself. The case for the prosecution was as follows: 2. On the early morning of November 30th 1970 a dance hostess named Siu Yin had a minor quarrel with two other dance hostesses at a certain ballroom which they all frequented. The ballroom forms part of a restaurant which is situated in the corner of East Point Street and Great George Street. 3. On the following night the deceased, the appellant, Siu Yin, the other dance hostesses with whom Siu Yin had quarrelled, several other dance hostesses, and certain male customers were all present at the ballroom. 4. The appellant suggested that Siu Yin should apologise to the girls whom she had offended, but she would not. The deceased, who was drinking, befriended her. 5. At about closing time the deceased left the ballroom with Siu Yin. They were preceded by others, who were hanging about on the pavement and in the road in front of, and at the side of, the Restaurant. 6. Among others outside the Restaurant, were two men called Delli Wah and Chiu Sing. There was some conversation between these two men and the deceased. Then, according to Siu Yin, the appellant shouted "stab him: stab him!" Upon which Chiu Sing attacked the deceased. He was armed with two knives. The deceased was also attacked by Delli Wah and two others. 7. At the same time a group of girls from the ballroom attacked Siu Ying with drinking glasses. This frightened Siu Ying who made her escape in a taxi. As the taxi drew away from the scene, looking through the back window she saw that the deceased was being stabbed and kicked by the appellant and his accomplices. 8. Very shortly afterwards the police arrived on the scene. The deceased was removed to hospital where he died of his wounds. He was wounded in 18 places. And some of his wounds were severe, notably one which penetrated his liver. 9. Upon the arrival of the police the appellant ran away. He remained in hiding in Hong Kong for some months and then stowed away to Indonesia. He surrendered himself to the British Consulate in Indonesia and arrangements were made for him to return to Hong Kong in December 1971. 10. The only evidence of the stabbing of the deceased by the appellant comes from the witness, Siu Yin. 11. The appellant and his witnesses tall a very different tale. The appellant said that he left the Restaurant first. Then Siu Yin and the deceased came out into the street. He was standing in the street with Delli Wah. Suddenly there was a commotion, and some girls attacked Siu Yin, who ran to a private car and escaped. 12. Two groups of men, one from the side of the road opposite to the Restaurant and one from the Restaurant side, attacked himself and Delli Wah. They used their fists and he retaliated, also with his fists. At the same time he looked up and saw a group of some four men, including Chiu Sing, attacking the deceased. And Chiu Sing at least was armed with two knives. The appellant saw a police car coming, so he fled. He denied that he had used any weapons and said he had not stabbed the deceased. He also denied he had shouted "stab him!" 13. The appellant then said that he hid himself in Hong Kong, later removing himself to Indonesia. 14. The Trial Judge put both the versions of the facts as given by the prosecution and by the appellant to the jury correctly, and on two occasions at least, drew attention to the fact that the former version depended on the evidence of one witness only, Siu Yin. 15. There is only one ground of appeal and that is that the Trial Judge misdirected the jury as to the burden of proof or inadequately directed them on the burden of proof. It is therefore unnecessary for us to consider any other aspect of the case. 16. Mr. Yu, counsel for the appellant, complained specifically of three separate portions of the summing up of which we think it only necessary to refer to two. 17. The first portion comes towards the beginning of the summing up and is contained in the following passage:-
18. Mr. Yu complains of the reference that "we are here dealing with the probabilities, not possibilities." And also to the sentence "otherwise, if you feel that the probability is not as high as such and you have a doubt that it could be either way, then you must give the accused the benefit of the doubt and acquit him." 19. The suggestion is that the Trial Judge was inviting the jury to decide the case on the balance of probabilities. As Mr. Yu pointed out, the burden of proof on the Crown is higher than this. 20. There is no reference to "the balance of probabilities" in the summing up. And there is authority to say that such a reference in a summing up is "dangerous". [See the decision of a differently constituted Full Court in Lam Woon Nang v. R.(1)]. 21. We think that the phrases referred to by counsel for the appellant may be validly criticised. But the paragraph must be read as a whole. It is not correct to take one isolated sentence, or part of a paragraph, in a summing up, and read it without reference to its context. There can be no complaint of the first part of the paragraph, nor of the last sentence of the paragraph. When the portion complained of is read within this frame work, it is evident that all the words complained of seek to do, is to explain, in perhaps a rather clumsy manner, what the widely used phrase 'beyond reasonable doubt' means. In particular the phrase "the probability is not as high as such" directly refers back to a probability that until "you are sure in your mind" the appellant must be given the benefit of any doubt. The requirement of sureness of mind before conviction is referred to again in the final sentence of the paragraph. 22. The second passage complained of comes much later in the summing up. Mr. Yu rightly stressed the point that the case for the prosecution rested upon the evidence of the single witness Siu Yin. It was she and she alone who testified that she actually saw the appellant stab and kick the deceased. The Trial Judge made the following comment:-
23. It is perhaps rather difficult to interpret this sentence. Mr. Yu's point here was that the summing up was inadequate in that the Trial Judge never directed the jury specifically that if the defence put forward by the appellant cast a doubt as to the truthfulness of Siu Yin's evidence his client was entitled to the benefit of that doubt. In this connexion he referred to the case of Lobell(2). In that case what is described as a "convenient way" of directing the jury was suggested by Lord Goddard. 24. His words have often been quoted and were indeed quoted by the Full Court in Lam Woon Nang v. R.(1) 25. Lord Goddard said:-
26. The facts of that case differed from the facts of the present case. But the point is that Lord Goddard was not laying down a positive statement of law that a jury must be addressed in that manner. He was merely indicating a convenient form for directing a jury: a form with which, with respect, no fault can be found. 27. For the Crown Mr. Evans made the point that the summing up must be read as a whole. He referred to a passage where the Trial Judge squarely put the two issues before the jury for their consideration and decision. They must decide, he said, if the evidence showed first that the accused was linked with the killing, and secondly, if he were so linked, was there evidence of malice aforethought. As to each of these issues he gave a clear and correct direction on the burden of proof. 28. He pointed out that the Judge more than once stressed the essential importance of the evidence of Siu Yin. Early in his judgment he referred to the fact that the onus of proof was on the prosecution and always on the prosecution: and that the onus of proof was proof beyond a reasonable doubt. There was in addition, a specific reference to this in the penultimate paragraph of the summing up. 29. Though we consider that there may be justification for some criticism of the phrases in the summing up to which Mr. Yu referred us, we think that the summing up must be read as a whole and, that if it is so read, there is nothing to satisfy us that this appeal should be allowed. We accordingly dismiss this application.
Representation: Patrick Yu (David K.W. Tsang & Co.) for Appellant I.E. Evans, Crown Counsel for Respondent (1) 1971 H.K.L.R. 210 at 213. (2) 1957 41 Cr. App. R.100. |