R. v. Wu Ming Tak

CACC000314/1994

IN THE COURT OF APPEAL

1994, No. 314
(Criminal)

____________

____________

Coram: Hon Macdougall, V.P., Penlington and Liu, JJ.A.

Date of hearing: 24 February 1995

Date of judgment: 24 February 1995

______________________________________

J U D G M E N T  O F  T H E  C O U R T

______________________________________

Macdougall, V.-P.:

1. The applicant, who was jointly indicted with a co-accused, was convicted of manslaughter after trial before Leong J. and a jury. He now applies for leave to appeal against that conviction.

2. The evidence for the prosecution was that, on 9 March 1993, at the Cafe de Coral in Mei Foo Sun Chuen, the applicant and his co-accused became involved in a quarrel with the deceased. As the dispute developed the applicant and his co-accused became violent and assaulted the deceased. The co-accused held the deceased around the neck from behind while the applicant rained blows on him with fists and feet all over his body and banged his head against a wall more than once. The deceased himself struck no blows but simply tried to ward off those aimed at him. After a minute or so the attack ceased and the deceased, bleeding from one of his ears, collapsed onto the floor. He was taken to hospital where he died two hours after admission.

3. The Crown called two expert witnesses, Dr Poon and Dr Ng.

4. Dr Poon, who was the forensic pathologist who performed the autopsy, was unable to detect any injury to the deceased's brain. However, he found deep bruising in three areas of the deceased's head which in his opinion had resulted from "impacts of considerable force that had been applied to the head of the deceased" and, given the circumstances of the case, death could have been due to the head injuries. He found that none of the other injuries which the deceased had sustained was capable of causing death.

5. Dr Ng, a pathologist, who examined the deceased's brain and studied photographs taken of the injuries to the deceased's head, testified that in his opinion each of those three injuries were the result of "quite a big blow" and could have caused death without there being any detectable injury to the deceased's brain. He could offer no other reason for the deceased's death. Dr Woo and Dr Dickens, both of whom were called for the defence, were of the opinion that there was insufficient evidence to link the assault with the death. They disagreed with Dr Poon and Dr Ng that the death was caused by the head injury sustained by the deceased.

6. The applicant made a statement under caution in the presence of his solicitor in which he denied that he had taken part in the assault. He asserted that he had merely attempted to separate the deceased and the co-accused. He then re-enacted the scene before a video camera. Although he did not give evidence at the trial, he called two witnesses, a pastor and a church worker, both of whom testified as to his good character.

7. The judge correctly directed the jury as to the dual effect of evidence of good character. The relevance of that evidence to credibility related to the applicant's account in his cautioned statement of the incident and to the video re-enactment which he performed for the police. The judge also correctly directed the jury that they could only convict the applicant if they were sure that he had participated in the assault on the deceased; that the assault had caused the head injury; that such injury was a substantial cause of the deceased's death, and that the applicant had not been acting in self-defence.

8. The applicant filed written grounds of appeal and expanded upon them in his address to this court. His basic contentions were that the judge wrongly ruled that there was a case to answer when, in the applicant's view there was insufficient evidence that he and his co-accused had caused the deceased's death, and that the judge misdirected the jury both as to the cause of death and as to whether there was a conflict between the evidence of the two doctors called for the prosecution and that of those called by the defence.

9. Having read the summing-up we are unable to find any misdirections. Despite the absence of any detectable injury to the victim's brain there was evidence on which the jury could properly find that the deceased's death was the result of the violence inflicted upon him by the applicant and his co-accused. Indeed, we think that the jury would have been greatly assisted in their task by the application of their common-sense. The judge correctly directed the jury both on the evidence and on the relevant law. The application for leave to appeal is therefore refused.

Representation:

Mr A.A. Bruce, SACP for Crown Prosecutor

Applicant - Wu Ming-tak - in person