R. v. So Ma Loi

CACC000312/1991

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Coram: Sir T.L. Yang, C.J., Silke, V.-P. & Power, J.A.

Date of Hearing: 13 February 1992

Date of Judgment: 12 March 1992

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J U D G M E N T

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Silke, V.-P:

1. This is the judgment of the court.

2. The applicant appeared for trial before His Honour Judge Wesley Wong on a charge sheet which contained three charges. Each of those charges was a joint one for offences under s.17 of the Offences against the Persons Ordinance, the particulars involving both the applicant and D2, So Ng. Each of them related to an incident on 22nd July 1990 when three separate persons were wounded. The applicant was convicted after trial and sentenced to a period of 3 years on each charge concurrent. He now seeks leave to appeal only against conviction.

3. It was the case for the Crown that a group of men were having a night snack at about 11:30 p.m. at a cooked food stall near the Wing Ming Book Shop, Poi Yue House, Pok Hong Estate, Shatin. Liu Chak Sang, the victim in the 1st charge had moved his house and the other people had helped him. He was treating them to dinner. The applicant walked pass and stared at this group of diners. He was then seen to make a phone call. A little later the applicant leading a group of 8 or 9 other persons advanced upon the cooked food stall. The applicant went up to one of the diners and asked what he was staring at. He pushed that man. Some of the applicant's group then took out knives and attacked the diners. This attack resulted in serious injuries to the three persons named in the three charges.

4. The joint accused, So Ng, was acquitted during the trial as there was but poor identification evidence.

5. It was not disputed that the applicant was at the scene and was in fact present when the attack took place. It was his case, which was made out from the contents of a mixed cautioned statement which he gave and from cross-examination, that he had expected a fight to take place but was not aware that knives were to be used. He accepted that he had "used his hand", when joining the fight but withdrew when he saw that knives were about to be used. It is clear that this "withdrawal" amounted to a standing at the scene watching the chopping take place. He gave no evidence.

6. Mr. Westbrook, who appears for the applicant in this court, takes two main points - and adds the wrap up ground of unsafe and unsatisfactory. His first is that the trial judge misdirected himself as to the correct test to be applied when considering whether the applicant was criminally responsible for the knife wounds inflicted by others. The second, that the trial judge failed to make crucial findings of fact, namely: whether the applicant knew, that the other men would be carrying and using knives; whether that was done as part of a joint enterprise or whether it went beyond such enterprise and was an unauthorised act.

7. These grounds arise really from the elliptical nature of the Reasons for Verdict. Having shortly recited the facts, and dealt with the 2nd defendant, the trial judge said this of the applicant:

"As to D1 the evidence of all the prosecution witnesses were not disputed. In fact that was supported by the statement he made to the police under caution. Counsel submitted that he had no knowledge that the group who went with him had knives. There was insufficient evidence to show he intended to wound these people. He said D1 expected a normal fight without using weapons and that he had only used his hand."

8. Counsel referred the trial judge to R. v.Chan Wing Siu, [1985] AC 168 - though the reference below was to the report in [1984] 3 All ER 877. This is the well known authority of the Privy Council in which Sir Robin Cooke, giving the judgment of the Board, said at p.177:

"The test of mens rea here is subjective. It is what the individual accused in fact contemplated that matters. As in other cases where the state of a person's mind has to be ascertained, this may be inferred from his conduct and any other evidence throwing light on what he foresaw at the material time, including of course any explanation that he gives in evidence or in a statement put in evidence by the prosecution. It is no less elementary that all questions of weight are for the jury. The prosecution must prove the necessary contemplation beyond reasonable doubt, although that may be done by inference as just mentioned. If, at the end of the day and whether as a result of hearing evidence from the accused or for some other reason, the jury conclude that there is a reasonable possibility that the accused did not even contemplate the risk, he is in this type of case not guilty of murder or wounding with intent to cause serious bodily harm."

9. It was suggested that on the evidence there was a lack of knowledge by the applicant that knives were to be carried, an inability to foresee the infliction of serious bodily harm and a lack of contemplation that serious bodily harm would be an incident of the common unlawful purpose of the group. The applicant thought it to be merely a "normal fight".

10. Of these submissions the trial judge said this:

"     I do not agree. From the evidence it was he who started the fight. He spotted the prosecution witnesses and went to telephone to summon his friends to go there. In his statement to police when being questioned by police as to why he pointed to one of the persons in the group and said to him why he stared at him the answer was 'This is a pretext for beating them'.

He then went on:

"    From the evidence it is clear beyond doubt that D1 acted in concert with others to stir up a fight."

A finding which was fully and properly open to him. The trial judge then continued:

"He can anticipate or foresee that some one is bound to be injured and as a result three of them were severely injured. I have no doubt that D1 had wounded the 3 victims with intent and he is therefore found guilty and convicted on all the 3 charges."

11. These reasons certainly leave it open to Mr. Westbrook to take the point first, that there was no specific finding that the applicant knew weapons were to be carried and, second, that when the judge said someone is "bound to be injured", he was ignoring the fact that the correct test in section 17 cases is a contemplate risk that someone would be severely injured as an incident of the unlawful enterprise.

12. Mr. McMahon for the Crown seeks to uphold this conviction on the basis that when the judge stated "I do not agree", he was in fact rejecting the submission of counsel at trial that the applicant was without knowledge that the group with him had knives. It was his further submission that, if that contention be rejected, then there must have been in the contemplation of the applicant that any injuries received would be of a serious nature and that when the trial judge referred to "someone is bound to be injured", and went on to note that three men were severely injured, he must be taken to have had in mind the requisite intent.

13. We are, of course, dealing with the Reasons for Verdict given by a judge sitting alone. Had the phrases complained of appeared in a summing up to a jury then the situation would be different. It is unfortunate that the trial judge did not see fit to make clear findings on the only real issue which lay for his consideration - whether or not the applicant knew that knives were to be carried. From the evidence led: (1) that the applicant had gone off to collect a bunch of friends: (2) that he had led this bunch of friends to the place where the victims were seated: (3) that he had stepped forward to create an incident which he fully intended would precipitate a fight: (4) that, when knives were pulled and used, he made no effort to withdraw from the scene but watched the result of his handy work; it would have been open to the trial judge to infer that the applicant knew that knives were to be carried. Had these Reasons for Verdict approached the matter in the proper way it is unlikely that Mr. Westbrook would have been before us.

14. Bearing in mind the evidence, whatever the deficiency in the Reasons for Verdict, in our judgment the trial judge was, in the event, right in the conclusions to which he came. We accept he rejected, as he was on the evidence entitled so to do, the defendant's suggested lack of knowledge that knives were to be carried. Once that finding was made, in the connotation of the joint enterprise which was taking place and the actions of the applicant, the applicant must have had in contemplation the risk that severe injuries would be caused to anyone attacked by the group he led.

15. These were matters proper to bring to our attention and we would therefore give the leave sought. We would treat the hearing as the hearing of the application but would dismiss the appeal.

Representation:

Simon Westbrook, Esq. (D.L.A.) for Applicant

M.A. McMahon, Esq. for Crown/Respondent