Wong Cheung-wai v. The Queen
Read the full judgment text of CACC 318/1971 on BabelCite. This Court of Appeal judgment.
1. On 18th May the appellant was convicted of murder and sentenced to death. His main ground of appeal is that the judge should have directed an acquittal at the close of the case for the prosecution on the ground that there was insufficient evidence to justify the charge being left to the jury.
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CACC000318/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 318 OF 1971 -----------------
----------------- Coram: Full Court (Blair-Kerr, Acting C.J., Briggs and Huggins, JJ.) Date of Judgment: July 1971 ----------------- JUDGMENT ----------------- Blair-Kerr, Acting C.J.: 1. On 18th May the appellant was convicted of murder and sentenced to death. His main ground of appeal is that the judge should have directed an acquittal at the close of the case for the prosecution on the ground that there was insufficient evidence to justify the charge being left to the jury. 2. On 8th July we allowed the appeal on that ground and quashed the conviction and sentence. We indicated that we would record the reasons for our decision; and we now proceed to do so. 3. The alleged murder took place outside one of the buildings forming part of Fuk Loi Estate - a housing estate situated near the junction of Route Twisk with Castle Peak Road in Tsuen Wan. The deceased, who resided in this estate, was a youth named WU Ying-chung. There was evidence that he and his friend, TSUI Po-law (who also resides in Fuk Loi Estate) had associated themselves in some way with a triad society called Wo Shing Yee in order that they might receive protection. A senior member of this society is a man named SHUM Yin alias Tai Pan Chung. 4. There was also evidence that the appellant was associated with another triad society named Lo Chuen; that a senior member of this society is a man named SZETO Wai; that the appellant had met SZETO Wai about the beginning of 1970 and that they had been associating with one another up to 10th January, 1971. 5. In a statement made shortly before his arrest, the appellant told the police that on 10th January SZETO Wai had told him that he had received fairly serious head injuries at the hands of Tai Pan Chung; and the appellant further said that he had made an appointment with SZETO Wai to "get together" at the ground floor of Wing Ka House, between 8 and 9 p.m. on the evening of 13th January, 1971. It appears that Wing Ka House forms part of Fuk Loi Estate. 6. The person who introduced the deceased and TSUI to the Wo Shing Yee triad society was one CHU Mo who was himself a member of that society. He gave evidence for the Crown; and in cross-examination he said that Tai Pan Chung had told him that he had been attacked by SZETO Wai and others; and that he (Tai Pan Chung) and some of his friends had retaliated on SZETO Wai "the day before the incident". Presumably, he meant the 12th January. There is no doubt that there was bad blood between Tai Pan Chung and SZETO Wai. Unfortunately neither of these individuals gave evidence. 7. TSUI Po-law was a witness for the Crown. He said that he and the deceased had spent some time in each other's company in the early part of the evening of 13th January; and that as they were entering one of the buildings in Fuk Loi Estate about 8.00 p.m., they passed five or six youths. One of this group shouted: "Which triad society do you belong to?" The deceased answered: "The Wo Shing Yee triad society." One of the group of five or six then said: "Do you know anyone by the name of Tai Pan Chung?" and the deceased or TSUI replied that they did know this man. One of the group then said: "We have something to return to Tai Pan Chung. We wish you to return it; we do not have the time." TSUI said that he and the deceased then came out of the building into the playground; that as soon as they reached the playground one of the group of youths shouted, "Lok Kui" (which means "attack" or "beat"); and that he and the deceased were immediately attacked and stabbed. TSUI said that the attack was entirely unprovoked and that neither he nor the deceased were carrying any weapons of any kind. 8. TSUI was in hospital from 13th January till 13th February. His injuries consisted of multiple cut wounds on the back and front of the chest and in the abdomen. 9. The deceased had been stabbed twice on the upper part of his chest. The wound on the left side was 2" deep and his left lung was cut. The stab wound on the right side of his chest was 2 1/2" deep and his right lung was cut. There were also four stab wounds on the deceased's back. One of these wounds was 3 1/2" deep and his left kidney was cut open. Another of this group of stab wounds was 3" deep and the lower lobe of the right lung was cut. Of these six stab wounds, three were potentially fatal; and the deceased actually died on 17th January. 10. On 14th January the appellant left his normal place of abode in Tsuen Wan and went to stay with a friend in a garage somewhere in Kowloon. He remained there till he was contacted by the police at about 9.30 p.m. on 4th February. When questioned by the police he gave a false name, but he later admitted that his name was WONG Cheung-wai. It was in a room at the rear of this garage that the police took a statement from him in the course of which he said that on 10th January he had made an appointment with SZETO Wai "to get together" at the ground floor of Wing Ka House between 8.00 and 9.00 p.m. on 13th January. 11. The appellant was arrested and taken by car to Tsuen Wan Police Station. During the journey there, he wept and said that he had acted very foolishly in the matter. 12. On 5th February, an identification parade was held at the hospital in which TSUI was a patient. TSUI was told that the parade was being held in connection with the incident at Fuk Loi Estate on 13th January in which he (TSUI) had been stabbed and his friend, WU, had received fatal injuries. He was then asked if he could identify anyone on the parade "who had taken part in the incident." After studying the parade for about 7 minutes, TSUI touched the appellant and said: "Looks like him." 13. The appellant was then taken back to Tsuen Wan Police Station and charged with the murder of WU Ying-chung. After caution, he said that he wished to make a statement; and he wrote the following:-
14. The Crown placed considerable reliance on the appellant's statement to the police that he was aware of the fact that a few days prior to 13th January SZETO Wai had received fairly serious head injuries at the hands of Tai Pan Chung and that he (the appellant) had agreed to meet SZETO Wai at the housing estate at about the time when the fatal assault actually took place. The suggestion was that the appellant must have been cognizant of some pre-arranged plan to assault the deceased and TSUI with dangerous weapons and that he was present ready and willing to assist in the execution of this plan. 15. In his summing-up the judge dealt at some length with what he described as the triad background to the case. The jury were reminded of the evidence of TSUI and CHU Mo to the effect that members of triad societies are sworn to help one another when trouble occurs between rival societies; and at one point the judge, when dealing with this evidence, said to the jury:-
16. The jury may well have taken this as an indication that it was open to them to infer that the appellant shared with his companions a common intention to kill or to cause grievous bodily harm, from the fact that he was associated in some way with the Lo Chuen triad society and from the fact that he had agreed to meet SZETO Wai at the housing estate on the evening of 13th January when there was in fact an assault involving lethal weapons on 2 persons associated with a rival triad society. 17. In our view those facts did not warrant any such inference. It was clear from the medical evidence that all the stab wounds had been inflicted by a knife, or knives, or some similar weapon or weapons; and obviously, one or more members of the group, of which the appellant was a member, intended to kill or at least cause grievous bodily injury. But, in our view, the evidence did not warrant the inference that the appellant shared a common intention to kill or cause grievous bodily injury. His statement in answer to the charge is an admission that he was present when the attack on the deceased took place. But the jury were not entitled to infer from his reference to "fighting" "on the spur of the moment" that the appellant was a party to any pre-conceived plan to attack the deceased with deadly weapons. 18. The position therefore was that there was no evidence before the jury as to whether or not SZETO Wai was a member of the group of five or six youths; and no evidence before the jury as to who inflicted any of the wounds on the deceased and TSUI. There was no evidence before the jury that the appellant used a knife or that he had a knife in his possession or that he knew that some one or other of his companions who took part in the assault on the deceased was in possession of a knife or that he expressly or tacitly agreed to the use of a knife by any person. 19. I say no evidence "before the jury" because we now know that before committing the appellant for trial the magistrate admitted other evidence which was not even tendered by Mr. Sanguinetti, who appeared as counsel for the Crown at the trial. But for the existence of this other evidence I do not think that the magistrate would have committed the appellant for trial at all; and it seems inconceivable that the Attorney General would have authorised the filing of an indictment for murder. 20. It appears that in the statement which he made in the garage just prior to his arrest the appellant, after caution, made a full confession to one of the arresting officers, Corporal TSUI Kwan. According to this statement (which is in the appellant's own handwriting), his object in meeting SZETO Wai and his companions on the 13th January was to fight members of the Wo Shing Yee triad society. He said that he came there armed with a knife and that he used it in the attack on the two "Wo Shing Yee chais". 21. Counsel for the Crown elicited from the Corporal the substance of what the accused had said in the first part of this statement; but he decided not to tender in evidence the statement itself in the latter part of which there were those incriminating admissions. 22. On the hearing of the appeal, I asked Mr. Donnelly, who appeared on behalf of the appellant both on appeal and at the trial, whether he could enlighten the court as to the reason why the trial judge was not asked to adjudicate on the admissibility of this statement in the normal way; but Mr. Donnelly was unable to do so. We are aware of the contents of the statement because, for some reason or other, it was marked as an exhibit and consequently it forms part of the appeal papers which have been placed before this court. There is certainly nothing on the face of the document to indicate that the judge should not have been asked to rule on its admissibility; and the extraordinary thing is that on the voir dire inquiry held by the judge in the absence of the jury in order to determine whether the appellant's statement in answer to the charge should be admitted in evidence, counsel for the Crown elicited from his witnesses evidence which indicated that no threats or pressure of any kind had been used by any police officer in connection with the taking of the statement in the garage. 23. However, the judge was not asked to adjudicate on the admissibility of this statement. It was not before the jury; and we were, and are, in no doubt that there was insufficient evidence to justify the case being left to the jury and that the judge should have directed an acquittal at the close of the case for the prosecution.
Representation: Donnelly (David K.W. Tsang & Co.) for Appellant Duckett, S.C.C., for Respondent |