The Queen v. Lam Yeung Ching

CACC000378/1983

BETWEEN

Coram: Hon. McMullin, V.-P., Li & Silke, JJ.A.

Date: 9th November, 1983.

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JUDGMENT

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McMullin, V.-P. :

1. The appellant was tried in the High Court with three other men upon an indictment containing two counts. The first was a count of murder and the second a count of robbery. At the outset of the trial the fourth defendant, Lee Kwong-ming, pleaded guilty to the robbery but maintained his plea of Not Guilty to the other charge. The trial proceeded and at the conclusion of the prosecution case the let defendant, Ma Hon-ming, and the 3rd defendant, Chan Hing-chuen, also pleaded guilty to the robbery. There was a submission by counsel for the defence of No Case to Answer at the conclusion of the prosecution case. Indeed we are told that once that submission had been overruled, it was renewed the following morning and once again it was overruled. It is this ruling which founds the contention of counsel for the applicant upon this appeal. Subsequently all the defendants gave evidence. All were found not guilty of murder but the jury returned verdicts of guilty of manslaughter against the 1st, 2nd and the 3rd. The 4th defendant was acquitted on the first count.

2. The applicant, who was the only one of the defendants to maintain his plea of Not Guilty to the second count, was also found guilty by the jury of robbery. He now seeks leave to appeal against his conviction upon the murder charge.

3. The victim of these crimes, Cheung Hon-wah, lived in an apartment on the 11th floor of the building known as 93-97 Des Voeux Road, West, Hong Kong. He was a small business man whose trade included dealing in musk.

4. Shortly after noon, on the 21st of March 1982, the caretaker of that building encountered a man coming down the stairs from one of the upper floors. The man was carrying a briefcase from which, after a short conversation, he produced a knife and forced the caretaker to open the front door of the premises through which he then escaped.  The caretaker, alerted to the possibility of mischief on the upper floors, then made a search which eventually led him to the 9th floor where he found a trail of blood. This led to the flat occupied by the deceased.

5. The caretaker then called the police who came to the scene. Upon entering, they found the deceased's body lying on the floor near to one of the walls in the sitting room. He had been securely bound hand and foot and his body bore a large number of very grave wounds of a kind which must have been inflicted by a sharp instrument. His body was lying in a welter of blood and there was blood at various other parts of the premises.

6. Cheung was already dead at the time the police arrived. Subsequent examination of the body disclosed that the immediate cause of death was fracture of the skull resulting from a number of heavy blows to the head. A safe in the room was open and property was missing including some gold ornaments, cash and a quantity of musk.

7. Police inquiries went on and the first breakthrough in the investigation of the case came about as a result of an abortive attempt by the 1st defendant, Ma, to pawn a Rolex watch on the 17th Of May, 1982.This watch had been the property of the deceased. The pawn broker in question had been notified that it was a stolen property and he refused to accept the watch and the police were informed. The defendants were all arrested upon the 25th of May.

8. The Crown's case against all of the defendants rested primarily upon statements made by them to the police shortly after their arrests. These statements, including that of the present applicant, admitted complicity in the robbery of the deceased but denied any intention to kill or cause grievous bodily harm. In the applicant's statement he admitted to being a party - albeit an unwilling party - in accompanying the others to where the deceased lived and he admitted receiving a quantity of musk and selling it immediately thereafter. He admitted also selling a further quantity of musk delivered to him by one of the other robbers one week later.

9. There is no doubt that the Crown's attitude to the individual case of this applicant was, from the outset, that he was the prime mover behind the plot to rob Cheung and that he envisaged the possibility that that would entail the killing of Cheung. Equally there is no doubt that, by the close of the prosecution case, there was no direct evidence to put the case against the applicant anything like as high as that. It may indeed be useful at this point to set out the evidence which stood against him at that stage.

10. The applicant is older than any of the other defendants. He was, at the time in question, the proprietor of small provision shop at which the first defendant and the fourth defendant were staying for some days before the robbery and at which all of the defendants slept the night immediately prior thereto. He was owed money by the fourth defendant who had been dismissed from his job in a hotel because of a scene which had occurred there when the applicant and the man from whom the applicant had obtained the money to give to the fourth defendant went there to demand its return.

11. His police statement shows the following: that he agreed reluctantly and under threats against his family as he maintains - to join the other three in robbing his friend and associate Cheung He was familiar with the layout of Cheung's premises which were heavily protected with locking devices on several grilles and doors. He had taken the fourth defendant to see Cheung a few days before the robbery presenting him as a bona fide purchaser of musk. On the day of the robbery he saw that the fourth defendant was carrying a brief case but he said that he did not know what was in it He wont with them to Cheung's building but besought his companions not to harm Cheung He waited below while they went upstairs and later received the musk from the third defendant which he went at once and sold. On his return home he saw the first and fourth defendants and the latter was bleeding from an injury to his right leg. He procured some dressing for this injury and on his return home he saw the third defendant whose forefinger was injured. He inquired what had happened and was told that the third defendant had chopped Cheung when the latter bit him. He heard of Cheung's death later on the news and was frightened. Nevertheless he went on the next day and cashed the cheques he had received from the musk dealer and split the proceeds with the fourth and third defendants, putting $60,000 into his own account. He was given another 200 taels of musk by the third defendant which he sold several days later putting the proceeds into his account. He spent his share of this money partly on gambling and partly on re-decorating his shop.

12. Mr. McMahon stressed the fact that Cheung was a big strongly made man whose premises were stoutly protected; the fact that there was to be a three to one confrontation with such a man and that it would, to the robbers knowledge, be necessary to force him to open his safe; and that the applicant was known to Cheung and might therefore, if he survived, be able to identify him as a man who had introduced one of the robbers to him.

13. Evidence of a phone call made by the applicant to the musk dealer to whom the musk was sold advising the latter of a forthcoming sale was also relied on but this is of no value since that witness was unable to say that this had occurred prior to the robbery.

14. All of the defendants gave evidence which was generally to the same effect as that which they had told the police in their cautioned statements. A major difference between evidence and statements however is that in his statement the 3rd defendant implicated the applicant as a person who specifically envisaged the killing of Cheung, whereas in his evidence he, like the 1st defendant, said nothing to implicate the applicant in anything other than the plot to rob. The applicant both in his statement and in his evidence denied all knowledge of the carrying or use of knives by his associates.

15. There is a fair measure of agreement in the testimony of these defendants. All of them admitted that they had gone together to the building in which was situated the deceased's apartment, and that the 1st, 3rd and 4th defendants went upstairs, leaving the applicant below. These three described how they had gained entrance by representing themselves as bona fide purchasers of musk.  The 4th defendant having been introduced (as is common ground) by the applicant to the deceased a few days previously in the role of such a prospective purchaser.

16. A feature of the case to which the Judge drew attention is that the 4th defendant (who was acquitted on the 1st count altogether) is in a sense the odd man out. The other three are members of the Chin Chow community and he is not. The applicant, together with the 1st and 3rd defendants, sought to implicate the 4th defendant as the begetter of the whole scheme and as its principal executant.

17. It is common ground between the 1st, 3rd and 4th defendants that the 4th defendant was carrying a briefcase in which there were concealed several large melon knives. They are all agreed that at a certain point, shortly after the 4th defendant had been shown some musk the pretence of bona fide activity was thrown off, and knives were produced from this case and used to menace Cheung for the purpose of subduing him and securing his compliance with respect to the theft of his property. The 1st and 3rd however alleged that it was the 4th defendant who had both supplied the knives and who eventually produced them and handed them to the others This was denied by the 4th defendant who said that he only suspected that there had been knives in the bag which he was carrying and that it was the 1st and 3rd defendants who suddenly appeared with these knives at a point at which he and the deceased had gone into another room to inspect some musk.

18. There is agreement between these defendants that thereafter the 3rd defendant took a quantity of the musk that had already been disclosed by the deceased, and left the room to take it downstairs to the applicant. By the time he had returned, a safe which was in the sitting room had been opened by the deceased and from it was taken cash and valuable ornaments and also a quantity of musk. At some point the deceased was tied hand and foot with tape which had been brought to the premises for that purpose. There is some dis-agreement as to just when and how that was done. The first defendant did not mention it and the 4th defendant alleged that it was done by the 1st defendant who produced the tape whereas the 3rd defendant said that it was the 4th defendant who produced the tape and who bound the deceased with his, the 3rd defendant's assistance.

19. All of them are, however, agreed that the 1st defendant left the room taking with him some of the cash and valuables and some musk and that when he left the deceased was uninjured. Thereafter what occurred is described only by the 3rd and 4th defendants. The 3rd defendant said that immediately after the 1st defendant had left, the victim was sitting on the bed being guarded by the 4th defendant who held the knife. He, the 3rd defendant, also had a knife and he was endeavouring to gag the victim when suddenly the victim managed to bite his forefinger. He dropped his knife and punched the victim until the latter let go.

20. Although the 3rd defendant's police statement was substantially different in the account it gave of this particular part of the proceedings (in that statement, for example, he alleged that the 1st defendant was still present) the substance both of his statement and of his evidence is that he did not attack the deceased with his knife at all but that in the course of the confusion he was himself chopped by the 4th defendant. In his evidence he did not actually say` that he saw the 4th defendant strike the deceased, but the implication of his evidence was to that effect. In his statement to the police he had alleged that he had actually seen the 4th defendant striking the deceased with his knife. He said that thereafter he, the 3rd defendant, took a bag of musk and left the premises, leaving the 4th defendant still there.

21. By contrast, the 4th defendant described how he had seen the 3rd defendant suddenly jab at the deceased with his, knife, and how he, the 4th defendant, had interposed his body between them in an effort to prevent this.  Thereafter they all collapsed upon the bed and in the confusion he received some injuries at the hands of the 3rd defendant using his knife and was kicked to the floor by the 3rd defendant and when he got up, saw that the deceased had grabbed the 3rd defendant's forefinger in his teeth The 3rd defendant managed to free his hand and then, according to the 4th defendant, he appeared to go mad, striking out wildly with his knife at the deceased. He saw the 3rd defendant then going to the toilet where the latter removed his shirt and then returned to the sitting room took up a bag of musk and left the room. At that point, according to himself, the 4th defendant fainted. When he came through the deceased was lying on the floor covered in blood.   He tried to bandage his own leg which was bleeding copiously and then he took the briefcase, which had a new knife in it, and left the stairway. He encountered the caretaker, he threatened with the knife in the manner that has been described and effected his escape.

22. The applicant admitted in evidence that he had received a quantity of musk from the 3rd defendant and had at his behest, at once gone off to dispose of it to a trader who lived a short distance away from the building in which the robbery and killing occurred. He received a sum of about $130,000.00 according to him and about $140,000 according to the trader, Lam.

23. He then returned to his home premises at Muk Chong Street, Kowloon where he owns a noodle shop. The other three defendants also gathered there, in accordance with the prearranged plan, and he saw that the 3rd and 4th had injuries. The next day he took the 4th defendant to a  hotel where the latter remained for a few days. About a week later he sold the rest of the musk which had been taken from the deceased's premises to the same Mr. Lam, receiving therefor a somewhat smaller sum.

24. In all, some 400 taels out of an alleged 1,000 taels taken from the premises had been thus disposed of for a price somewhat in excess of $200,000. The applicant said that of this sum he retained $52,500 and gave $60,000 to the 3rd defendant and $110,000 to the 4th defendant. The 1st defendant appears to have got nothing.

25. The applicant and the 4th defendant each accused the other of being the instigator of this plan. Each maintained that he had gone along with the other three to assist in a robbery reluctantly and under threats of physical harm. It is common ground that the 1st, 3rd and 4th defendants spent the night before the robbery at the premises of the 2nd defendant. The 3rd defendant and the let defendant had been living with him at those premises for several days prior to that.

26. Such in outline was the condition of the evidence when the jury retired to consider their verdict.

27. Mrs. Penlington, who appears for the applicant, does not deny that there was, at that stage, evidence on which the jury were entitled to convict the applicant either of murder or manslaughter. That is indeed so. There was pre-eminently the evidence of the 4th defendant who,  as I have pointed out already, must to considerable extent, have been accepted as truthful. It seems to follow from their verdict that the jury must have identified the 3rd defendant as the actual killer of the deceased, and the manslaughter verdict, which in the circumstances may seem somewhat remarkable, can hardly be accounted for on any ground other than that they accepted that the 3rd defendant was, at the time, acting under provocation. They had been carefully instructed by the Judge on the principles relating to common design and the separate degrees of intent required to support murder and manslaughter. It seems likely that they were prepared to accept that the knives were, at the outset, intended to be used for the purpose merely of threatening the deceased.

28. I have entered upon the evidence given by the defence in some detail because that is necessary for an understanding of the jury's verdict. The single ground of appeal, however, if it is correct, would, in the applicant's regard, eliminate that whole body of evidence from the picture altogether. What is said is that when counsel for the applicant made his submission of No Case, the Judge misdirected himself in law in ruling that the applicant had a case to answer. What counsel says is that there was, at that stage, simply no evidence whatsoever upon which a reasonable jury properly directed could have returned a verdict of guilty against the applicant upon the first count. This is so, she says, because there is, on the Crown's case, nothing to show that the applicant was himself armed in any way and nothing to show that he was aware that knives were carried by the others. If that is right, then, she says, there must have been a misdirection in law such that the verdict on that count could not now be sustained.

29. Counsel relies upon the decision of the Court of Appeal in R. v. Abbott [1955] 39 Cr. App. Rep. 141 for the proposition that where such a misdirection in law has occurred, it is not open to the Court of Appeal to look at evidence led by or on behalf of the defence which may have supplied the deficiency in the Crown's case against the applicant.

30. There is no doubt that the decision in Abbott constitutes the most recent as well as the most authoritative wisdom upon this topic in the English courts and it appears to be the culmination of a somewhat wavering line of opinion. Mr. McMahon for the Crown was not disposed to contest its authority or its relevance to the present case.

31. Nevertheless it is not a wholly unequivocal authority for present purposes since in explaining the effect of the decision of the court of appeal in R. v. Power (1919) 1 K.B. 572, (a case which went the other way), Lord Goddard noted that it was not clear in that case whether the court was dealing with the case as one in which there had been no evidence to go to the jury. If there were some evidence fit to go to the jury then the judge in overruling counsel's submission of No Case could not have been accused of a misdirection on law That would also be true even if it was doubtful whether there had been sufficient evidence to call upon the accused. It was on some such understanding of the facts in R. v power that in Abbott the effect of it is said to be that in such a case the court might not must - take the whole of the evidence into account.

32. In Abbott there was literally no evidence whatsoever supporting the case against one of two co-defendants at the close of the prosecution case. The case against him had, in the words of Lord Goddard, completely broken down. Nevertheless he was called upon with the other defendant to make his defence and she gave evidence which heavily inculpated him and he was convicted. The judge's ruling there clearly amounted to a serious misdirection of law. The appellate court refused to apply the proviso.

33. The present case is very different. Notwithstanding that Counsel for the Crown expressly declined to put his case so high it might well be said that where several co-accused are all implicated in a plot to rob, of which there is quite sufficient evidence against each of them to go to the jury, that by itself could in most cases constitute a sufficient prima facie case on homicide against each of the participants where the death of the victim resulted from the act of one of them in the course of the robbery,   irrespective of the degree of participation of the others in the design to rob. That design must necessarily in every case include foresight of the possibility of some degree of physical violence being offered to the victim and of some physical harm resulting therefrom.

34. Delivering the judgment of the court in R. v. Penfold & Penfold [1980] 71 Cr. App. Rep. 4, Shaw, L.J. said (p.8) :

"Robbers who burst into a house can hardly fail to contemplate the possible necessity of some degree of force to overcome or silence the occupants.While they may not desire to inflict any real harm, they do agree, by implication, to put themselves under the dictates of any arising necessity."

35. That would seem, with respect, to be a sound general principle. Although the applicant in the present case was not amongst the persons who effected an entry into the premises, he was well aware of what they were about to do and was a consenting party to that act.

36. In D.P.P. v. Newbury (1976) 62 Cr. App. Rep. 291, the Court of Appeal (Criminal Division) approved the dictum of Edmund Davies, J. (as he then was) who in Church (1966) 1 Q.B. 59 had proposed the following principle:

"For such a verdict " (i.e. a verdict of guilty)" inexorably to follow the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm."

It is true that in that case, as in Newbury itself, the act which caused the death of the victim was the personal act of the individual to whom the court was applying that principle, but the carrying out of a concerted design to rob may reasonably be regarded as equally "an act" on the part of all participants. Where an individual is proved to have participated in an act of robbery it must surely be for the jury to decide whether the evidence as it relates to him is such that, applying this objective test, they are satisfied that he must have envisioned some degree of physical harm as a possible outcome of the joint enterprise (see the decision of this court in Criminal Appeal 540 of 1981 as yet unreported, Chan Wing Siu and Others v. The Queen).

37. In such a case as the present, with all the evidence before them,  it would then be for the jury to say whether the act which caused the death of the victim conformed to one or other of the two tests adopted by the Court of Appeal in Anderson and Morris (1966) 50 Cr. App. Rep. 216.They would have to decide, that is to say, whether, on the one hand, that act was merely an unusual consequence of the execution of the agreed joint enterprise or, whether, on the other hand, it must be regarded as (in the words of lord Parker, L.C.J. at page 223):  "an overwhelming supervening event which is of such a character that it will relegate into a matter of history matters which could otherwise be looked upon as causative factors."

38. It is important to note that the emphatic endorsement by the court in Anderson and Morris of the principles put before it by defence counsel included reference to the concluding part of his submission which was that it is "for the jury in every case to decide whether what was done was part of the joint enterprise, or went beyond it and was in fact an act unauthorised by that joint enterprise". (emphasis added).

39. In Abbott's case there was a single charge end no evidence to support it against the appellant. In the present case the two charges rest on a body of evidence supporting a single enterprise. Of the 4 defendants only this applicant persisted in protesting his total innocence until the conclusion of the trial. For this reason alone, it is difficult to view what happened in the present case as being on all fours with what occurred in the case of Abbott.

40. In dealing with Anderson and Morris and certain related decisions, Archbold (referring to joint enterprises generally) expresses some dissatisfaction with the current state of authority. At page 1424 of the 31st edition, we find the following:

"The cases on this topic are not easy to reconcile. On the facts the distinction between R. v. Anderson and R. v. Morris on the one hand and R. v. Reid, R. v. Betty and R. v. Smith (unreported)... depends upon whether the appellant knew that the companion who actually inflicted the fatal blow was carrying a deadly weapon."

41. Undoubtedly, the Court in Reid [1976] 62 Cr. App. R. 109 emphasized knowledge of the existence of a weapon as in some measure determinative of the guilty complicity of the accused in homicide. But this would seem to usurp the proper function of the jury by restricting the purview of the inquiry - in such cases as the present- to one physical fact in determining the extent of the accused's involvement.

42. It is however difficult to see any logical  reason for limiting the principles set out above from Anderson and Morris in that way. The existence of a weapon and knowledge or absence of knowledge of its existence are alike evidential circumstances, to be taken together with any, other such circumstances, surrounding the participation by the accused in a common enterprise in determining whether or not he was involved in that enterprise to the extent of what actually occurred. Upon a homicide charge, where the common design must necessarily, as in robbery, include consent to the infliction of physical harm the idea commends itself that it can only be in exceptional cases that the interests of justice will demand that a judge should pre-empt the jury's verdict on one aspect of the design before all those who may wish to speak to it have had an opportunity of doing so.

43. On such a view of the law then, in the present case, if, as is most likely, the jury concluded that it was the 3rd defendant who had killed the victim, Cheung, and further that he had done so acting on provocation from Cheung they would have been entitled to conclude that this was a mere unusual result of the execution of the design to rob in respect of which all of the defendants must have envisaged some degree of harm as a possible result of their combination. On that basis their verdict could scarcely be impugned.

44. Had they found the 3rd defendant guilty of murder on the basis that he had suddenly exceeded the common design which included only the infliction of some minor harm, then, upon the other principle from Anderson and Morris, it would have followed that the conviction of the others for manslaughter would not have been justified.

45. However, that is not how the jury were directed and in view of that, and also of the fact that the matter was not argued before us, it would, we think, be unfair to seek in the present case to resolve the ambiguities of the law by a simple and rigorous application of the principles in Anderson and Morris. It may be that the matter will fall to be decided upon some later occasion.

46. Mr. McMahon was moreover prepared to concede that Mrs. Penlington's argument must be met upon the ground chosen by her. As we understood him, he agreed that unless there were some evidence upon which the jury could rely to show that the applicant was aware that his companions were armed with knives, then there was no evidence fit to put before the jury to associate the applicant with a design which included the risk of some unlawful harm to the victim. He was prepared also to concede that if such had been the case, then upon the authority of Abbott, there would have been a fatal misdirection in law at the stage of the "no case" submission. He restricted himself to the contention that there was in any event sufficient upon the evidence to indicate that the defendant must have realized that his companions were armed.

47. We have set out above several items which he proposed as conducing to that conclusion; we have also taken note of Mrs. Penlington's careful and exhaustive examination of the evidence as it bore upon the case of her client. While we cannot say that there was anything in all of that matter to constitute direct evidence of that single, narrow, factual issue, it nevertheless constituted a matrix of circumstances surrounding the participation by the applicant in the plan to rob, which would, without more, have been fit and apt for consideration by the jury when they came to decide whether the nature and extent of his agreed participation in the robbery was such that he must have been aware of the existence of the knives and the possibility of their use at least to threaten and intimidate. In this connection we would stress the harbouring of his confederates prior to the act; his knowledge that a briefcase was being carried; his contention that he had enjoined the others not to, harm Cheung.

48. In the upshot therefore we are satisfied that the Judge was not guilty of misdirection in overruling the submission of No Case.

49. This morning we dismissed the application for leave to appeal against conviction on the part of the applicant lam Yeung-ching who is the second defendant of four defendants of the trial. We have now been addressed upon the application for leave to appeal against sentence.

50. The applicant was convicted of robbery and of manslaughter and received 11 years and 13 years respectively following those convictions, the sentences to run concurrently. Mrs. Penlington makes two points. She says that the evidence disclosed that this applicant was not present in the room at the time when one of his companions used a knife to take the life of the victim, and that is true. He was in fact outside waiting to receive part of the spoils of the robbery and to dispose of them. She says therefore that in relation to the sentences imposed upon the other defendants the can legitimately harbour a sense of grievance. The 1st defendant received sentences of 9 years and 12 years concurrent The 3rd defendant the same, that is 9 years and 12 years concurrent, and the 4th defendant, who was convicted only of the robbery, received a sentence of 9 years.

51. Secondly counsel says that in any event the 9 years for the robbery is excessive and goes beyond what has been suggested in the tariff guidelines laid down in the case of Mo Kong-sang.

52. It is always a difficult question when the Judge is passing sentence for him to decide how far he may legitimately go in interpreting the verdict of a jury. But a Judge is entitled to engage upon such an exercise.  In the present case, he clearly took the view that the acquittal of the 4th defendant signified that the jury must have accepted in large measure the evidence of that defendant whose evidence it was that this applicant was not only a fully complying member of the robbery party, but was the instigator of the entire scheme and the supplier of the deadly weapons. Counsel suggests that the verdict should not be interpreted in that sense and that the jury's finding need have gone no farther than a finding that the 4th defendant was telling the truth when he said that he had interposed his body between the victim and the 3rd defendant who, on the evidence, must have been the person who inflicted the fatal injuries. We do not think that the Judge's interpretation was mistaken. It is unlikely that having accepted the evidence of the 4th defendant to that extent and having acquitted him of the offence of homicide, the jury did not in large measure accept what he had said.

53. As to the guidelines in Mo Kong-sang, undoubtedly the robbery sentence would rate higher than what is indicated for this particular kind of offence taken in isolation, that is an offence in which dangerous weapons are used and private premises are invaded. Irrespective of whether the guidelines in Mo Kong-Sang are quite as apposite to the current conditions in Hong Kong as they were when that case was decided, we are of the opinion that they are, in any event, largely irrelevant to the circumstances with which the Judge was confronted in the present case. Clearly in imposing his sentences he had in mind the principle of totality. He said: "I am aware the sentence that I am about to pass is near the top of the scale for manslaughter but the overall sentences which will run concurrently must reflect the gravity of both offences.

54. This therefore was being regarded by him, and legitimately so regarded, as an extremely serious robbery in the course of which the carrying and use of dangerous offensive weapons had had the result which such behaviour invariably invites, that is to say a fatal result to the victim. For these reasons we think that the application for leave to appeal against sentence must be refused.

Representation:

Mrs. V.A. Penlington (Wing Sum Lo & Co.) for Appellant.

Mr. M. A. McMahon for the Crown.