Chan Hak So v. The Queen

HCCC000001/1984

Headnote

Section 16 of the Criminal Procedure Ordinance - application to discharge on grounds that not enough evidence to commit for trial on charges of murder and wounding with intent, aiding and abetting - only evidence was that accused drove a man to a mahjong school knowing he was going to take part in an attack on its employees with knives - that evidence sufficient, if accepted, to constitute aiding and abetting and accused did not do enough to dissociate himself from the crimes. R.v. Becerra and Cooper and D.P.P. and Maxwell followed.

IN THE HIGH COURT OF JUSTICE

CRIMINAL JURISDICTION        

APPLICATION FOR DISCHARGE NO. 1 OF 1984

BETWEEN

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Coram: Hon. Penlington J. in Court

Date of Hearing: 1st June, 1984

Date of Judgment: 1st June 1984

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JUDGMENT

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1. This is an application, the first which has come before the Court, for discharge under Section 16 of the Criminal Procedure Ordinance on the grounds that the papers filed by the Crown do not disclose a prima facie case upon which the accused should stand trial on charges of murder and wounding with intent to cause grievous bodily harm.

2. The only evidence is the accused's own statements. What emerges from those statements is evidence that the accused was told that a man called Lam Moon had been assaulted in the Luen Fat Mahjong School in Tsuen Wan; on the 22nd November 1983 he was apprroached by this same Lam Moon and he was asked to find a man called Tai Shing, a mutual acquaintance, and to take Tai Shing to a carpark at the Lai King Estate. The accused, Tai Shing, and another man, Sai Wah, went to a car- park at Lai King Estate in a car which the accused had borrowed. There he saw Lam Moon and he was told to go to a barbecue area near the top of the Tai Mo Shan Road (Route Twisk).

3. Tai Shing got out of the car before they went to the barbecue area but the accused went on together with Sai Wah.

4. At the barbecue area, Lam Moon said to the accused - "You drive a person to Lai King for me." He asked Lam Moon why and Lam Moon said, " 'We will go to have a fight at Luen Fat a little later. Will you go?'   The accused replied 'I will not go because I am a familiar face there. I can't help you.'  Lam Moon then said, 'No matter what, you drive a person to Lai King Estate for me. You wait for me there."

5. He went to Lai King Estate with Sai Wah and there he saw a man carrying a bag in which he could see several knife-handles. This man approached Lam Moon and Lam Moon said, "You people go to do the work. I am not going."  There were two other seven-seater vehicles.  Other people got into these vehicles and he followed with Sai Wah.

6. He said he stopped his vehicle when he arrived at the Goodview Theatre, Tsuen Wan. He saw the two other vehicles turn into Chung On Street.  He then stopped his vehicle and told Sai Wah to get off. However, Sai Wah refused and asked him to drive him to the Luen Fat Mahjong School, which he did.

7. When they reached the mahjong school and in fact having passed it, the accused stopped his vehicle and Sai Wah got out. He tried to drive forward but he couldn't because the two other vehicles were parked in the middle of the road, obstructing it.

8. He repeatedly sounded his horn and finally the two vehicles moved to the left-hand-side of the road and he could then get past.   As he was about to drive away, Sai Wah opened the rear door of the  car and got in. He then moved off.

9. There is then evidence in the statements which could be believed that the accused took Sai Wah to the mahjong school, knowing that he was to take part in an attack on the employees or occupants, and that he knew knives were to be used.

10. There is clear evidence that on the night of the 22nd Nov ember several masked men entered the Luen Fat Mahjong School armed with knives, attacked members of the staff and customers and one of the staff died from his wounds.

11. Mr. Mayne in his usual persuasive way argues that here the accused had clearly told Lam Moon that he would not take part in the fight and had dissociated himself from it.   All he did was take somebody to the scene who may or may not have taken part.   He wished to leave the scene as soon as he arrived and was only prevented by the other two vehicles blocking his way.  In R. v. Borthwick (177 9) 1 Doug.  207 it was said that an aider and abetter must participate in the act. If he takes no part but is merely present that is not enough. (Archhold 41st Ed. Para. 29-6).

12. Mr. Wong, for the Crown, submitted that while the accused did not take part in the actual fight he did not do sufficient to dissociate himself, he did assist one of the alleged attackers by taking him to the scene in his car at Lam Moon's request and took him away afterwards. He relys on the principles in R. v. Becerra and Cooper ⁽¹⁾, Johnson v. Youden and others ⁽²⁾, R.v. Lynch⁽³⁾, R.v. Merriman ⁽⁴⁾ and, in particular, D.P.P. v. Maxwell ⁽⁵⁾.  While the other authorities cited support the Crown's submission I feel I only need to refer to R.v. Becerra and Cooper and to D.P.P. v. Maxwell. In the former case the appellant Becerra was one of a gang which was ransacking premises by right. They were disturbed by the tenant and Becerra called out "let's go" and he then left. One of the other intruders however stayed and killed the tenant with a knife. It was held that Becerra's actions were not enough to dissociate him from the killing. It seems to me that here there is evidence that the accused, while telling Lam Moon he would not take part, in fact after that helped one of the attackers by providing him with transport.  His actions after the conversation with Lam Moon are inconsistant with his withdrawal from the enterprise.

13. In D.P.P. v. Maxwell the evidence was that the accused was approached by a fellow member of a terrorist organisation in Northen Ireland and was told by a fellow member to drive his car to a remote hotel to act as a guide to other men in a following car.  He did so, knowing that an attack of some sort would be made against the hotel or its occupants. Having guided the other car to the hotel he drove off and took no actual part in the attack, which was unsuccessful. The House of Lords upheld the decision of the Court of Criminal Appeal of Northen Ireland, (in particular the judgment of Lowry C.J.) and said that the appellant knew when he acted as a guide that he was taking part in an attack on the inn or its occupants in which weapons were to be used, that he was giving aid to those persons in the following car and was rightly convicted of the substantive offences. The facts of R. v. Lynch were very similar and the appeal was also dismissed. That appeal was on duress but is authority for the proposition put forward by the Crown here.

14. Mr. Mayne seeks to distinguish Maxwell on the basis that there the Crown's case was that the appellant counselled and procured the offence whereas here it is that he aided and abetted. I do not see that that distinction arises. Indeed, on the fact of Maxwell, it seems to me that he did aid and abet. I don't think there was any evidence that he counselled and procured and indeed the main ground of appeal was that he did not know exactly what offence was to be committed.

15. To allow this application would be to fly in the face of the decision in Maxwell and I see no reason to do so.

16. The Crown's case here is sufficient to go to a jury and this application must be dismissed.

(1)    1975,  A.C. 212

(2)    1950, 1KB. 544

(3)    1975 A.C. 653

(4)    1973 A.C. 584

(5)    1978. 1 W.L.R. 1350

Representation:

O'Reilly Mayne, QC & A.A. Souyave (Kwan & Kwan) for the Applicant

Frank Wong, Asst. Crown Prosecutor, & A. Wu, C.C. for the Respondent