Lam Wing-keung and Another v. The Queen

CACC000311/1976

Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 23rd June, 1976.

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JUDGMENT

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1. The two appellants together with one CHOW Hung-yik were charged with two counts, one, the murder of SZETO Tit-yan and, two, wounding TANG Yim-wah with intent to do him grievous bodily harm.

2. The first appellant pleaded guilty to the second count and was found guilty of manslaughter on the first count. CHOW Hung-yik, who was the second defendant in the court below, was acquitted on both counts, and the second appellant, AU Ka-wah, was acquitted of the count of murder but found guilty of the second count of wounding TANG Yim-wah with intent to do him grievous bodily harm.

3. The appeal came before this court on the 4th June, 1976. The court then dismissed the appeal of the first appellant but adjourned the appeal of the second appellant and ordered that he be given legal aid. The appeal of the second appellant came before the court on the 23rd June, 1976.

4. The facts would appear to be as follows.

5. TANG Yim-wah, the man who was wounded, the subject matter of the second count and one LAU Kwok-keung, tried to induce the first appellant to join a triad society. The parties were all living at Kwun Loong Lau Estate, Lung Wah Street, Hong Kong. At that time, the first appellant was living with his parents at a flat in that Estate. In order to avoid the attentions of TANG and LAU, the first appellant went to live elsewhere but, from time to time, he would visit his parents at their flat in the Estate. When he appeared there he would be subjected to harrassment by TANG and LAU and their friends.

6. On the 14th June, 1975, the day of the Dragon Boat Festival, the first appellant went to Kwun Loong Lau to have a meal at his Parents' flat. He told the court that TANG and LAU and some other persons assaulted him on a staircase but it is fair to say that a different version of this incident was given by TANG and LAU. The first appellant said that because of this incident he did not stay with his parents but left to go to Wanchai to his Clansmen's Association. He wished to get some medicine from the second appellant who was a sub-tenant living in part of the premises of the Clansmen's Association. The second appellant is not a clansman of the first appellant. When the first appellant arrived the second appellant was not there.

7. The following evening, the 15th June, 1975, the first appellant went back to his Clansmen's Association in Wanchai where he met certain of his friends. It was agreed that a number of them would escort him to his parents' flat in Kwun Loong Lau. It is the case for the prosecution that he and this escort party were bent on taking revenge for the insults afforded to the first appellant on the previous day. The first appellant's story is that his friends were no more than an escort and it was agreed that if TANG and LAU were encountered at Kwun Loong Lau the latter should be warned to leave the first appellant alone.

8. The second appellant was not present when the decision to escort the first appellant was made but he had heard that the first appellant was looking for him the day before so he decided to go with the escort to see the first appellant at his parents' flat. He knew that the first appellant wanted to obtain some medicine from him so he took the medicine with him when he went with the escort. The medicine is described as "traumatic wine and powder".

9. It is the case for the second appellant that he was unarmed.

10. The first and second appellants and the escort party reached Kwun Loong Lau where there was a confrontation with TANG and LAU and some others in the public part of the ground floor of a block of flats. A fight ensued, which resulted in the death of SZETO Tit-yan. The second appellant was seen assaulting SZETO in a certain corridor, a place which was a considerable distance away from where he was later found in a dying condition. He had been stabbed. There was no suggestion that there was a trail of blood from where the second appellant and he had been seen to where the body was found later. And there was no evidence that the second appellant was seen with a weapon in his hand. In addition, there was no evidence of the second appellant being seen to assault TANG Yim-wah though TANG stated that he was at the scene.

11. Mr. Mumford, who appeared on behalf of the second appellant, pointed out that the Crown's case against the second appellant rested on the doctrine of common intent. However, he said that the two verdicts, the manslaughter of SZETO Tit-yan by the first appellant and the wounding of TANG Yim-wah by the second appellant were inconsistent. He said that the verdict of manslaughter showed that the common intent found by the jury to exist was a common intent to threaten and not to kill otherwise the jury's verdict would have been murder. But the jury must also have found that the second appellant was not implicated in that common intent because he was acquitted on that count. He suggested that the jury, in effect, must have made a mistake as to the facts of the case.

12. Mr. Polson, who appeared for the Crown agreed that the two verdicts of the jury were inconsistent.

13. In the event, the second appellant must be acquitted. His conviction is quashed and the sentence set aside.

Representation:

Mumford (Hoosen & Co.) for appellant.

Polson for crown.