Lau Sik-chun v. The Queen

CCAC000754/1981

Criminal law - murder - common design - no prior association or agreement necessary - question is whether inference may properly be drawn that at time of actus reus defendant and person striking fatal blow both intended to do at least grievous bodily harm to deceased.

Evidence - witness identified defendant as person who uttered words suggestive of intention to kill - case not depending wholly or substantially upon correctness of voice identification - Reg. v. Turnbull 1977 1 .B. 224 not applicable but warning desirable.

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A..

Dates of hearing: 1, 2 and 10 February 1982

Date of judgment: 10 February 1982

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J U D G M E N T

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Sir Alan Huggins, V.-P. :

1. The Appellant vans the second of two defendants jointly charged with the murder of one Ng Fuk-nam and with four offences of wounding with intent.  He was convicted on the murder charge and two of the wounding charges and acquitted on the other two charges.   He appeals against his convictions pursuant to leave granted by the single judge.

2. We have already indicated our decision that the two convictions for wounding cannot stand. As to Count 2, the charge of wounding Yip Kam-ping ("Tai Ngan Chai" ), the judge directed the jury:

"The case against the 2nd accused on this charge hinges on the evidence of CHAN Chun-ki because he says he saw the 2nd defendant with others strike blows with cues at Tai Ngan Chai's head and subsequent to that Tai Ngan Chai's head was seen to be bleeding."

It is conceded by counsel for the Crown that this was a mis - direction on the evidence. What the witness said was that a number of persons picked up billiard cues and started to fight, but he did not name the 2nd Defendant as one of these persona : later he saw the 2nd Defendant rush towards YIP Kam - ping and beat him up, but could not see very clearly whether he used his fists or a weapon: YIP Kam - ping's head was bleeding: later again he saw the 2nd Defendant striking POON Chi-chuen with a cue.  It is therefore apparent that the learned judge read more into the evidence than was there. The mistake was fatal because the Crown's case was thus presented to the jury as one based upon evidence of an assault by the 2nd Defendant himself with a weapon at YIP Kam - ping's head, with a suggestion that the 2nd Defendant was directly responsible for the wound on YIP Kam - ping's head. There was evidence from which the jury might have inferred a common intent to do grievous bodily harm, but the judge did not mention common intent in relation to this count and it is by no means certain that they would have drawn such an inference.

3. As to Count 3, the charge of wounding TAM Man, the judge said:

"TAM Man's evidence is that he himself was attacked at this particular time and his evidence is, as I mentioned to you earlier, supported by the evidence of LI Kit-hung, if you accept Mr. LI Kit-hung as a witness of truth.

As Mr. Reid submits, that passage is literally correct, but it was not emphasized to the jury that the 2nd Defendant himself did not take part in that attack on TAM Man. Again, the case for the Crown had been based upon common intent and in this instance there was a reference to common intent in the summing-up, but it followed a passage in which the judge pointed out that the 2nd Defendant denied taking part in the attack on TAM Man and that they had to be satisfied that he was not telling the truth. The total effect of that might be to confuse the jury into thinking that there was evidence that the 2nd Defendant was directly involved in the assault on TAM Man. Bearing in mind that the jurors were not lawyers and had to rely on the judge's explanation of the law, we thought the direction as to common intent was not as clear as it should have been and came to the conclusion that the verdict was unsafe and unsatisfactory.

4. That leaves the murder count. There was a dispute in a billiard saloon between a man nicknamed "LUEN Mo and YIP Kam - ping. Yip went away and consulted his friends. According to the prosecution the 2nd Defendant contacted Yip by means of a paging device and invited him to return to the billiard saloon to resolve the dispute: Yip and his companions, who included the Deceased, went there and were set upon by the 2nd Defendant and a number of others: as the visitors were endeavouring to escape, the Deceased and TAM Man were dragged back into the saloon and violently assaulted: the 2nd Defendant was one of those who dragged the Deceased and he was seen hitting the Deceased on the back with the thick end of a billiard cue after the Deceased had fallen unconscious to the floor. It is undisputed that the Deceased died from intercranial haemorrhage and bruising of the brain.

5. Since there was no evidence that the 2nd Defendant hit the Deceased otherwise than on the back, the case for the Crown was that the death resulted from an injury inflicted by someone in pursuance of a design common to him and to the 2nd Defendant. The first argument on behalf of the Appellant is that there was no evidence of a common design, and, in particular, that there was no evidence that those who hit the Deceased were all members of a gang. It must be said that the common design suggested by counsel appearing for the Crown at the trial was one to deliver serious bodily harm "to any one of Tai Ngan Chai's men that they could get their hands on". The judge took a narrower view and invited the jury to consider whether there was a common design to do grievous bodily harm to the Deceased. We think he was entitled to do that. The evidence of that common design was that the 2nd Defendant hit the Deceased with a billiard cue while others were similarly attaching him, one or more of those others hitting him on the head. It is inconceivable that the 2nd Defendant was unaware of the fact that others were involved in the attack and that they, too, were using billiard cues. It was a reasonable inference that all the attackers intended to do grievous bodily harm to the Deceased. This was not a case where two or more assailants made independent assault upon a victim when ignorant of the acts and intents of the others. Counsel sought to draw a distinction between a spontaneous eruption of violence and a concerted attack, but there can be an incident to which both descriptions can aptly he applied. No prior association or agreement is necessary to a common design. Mr. Litton conceded that where several rioters who are unacquainted with each other on the spur of the moment and without consultation combine to overturn a motor vehicle, they can properly be found to have a common design. Such a case is analogous to the present.

6. Secondly it was contended that the judge in any event wrongly failed to direct the jury as to the meaning of common design and that he mis-directed them when he said:

"You have to be satisfied beyond a reasonable doubt that [2nd Defendant is] lying when he denies that he took part in that attack. If the evidence doesn't persuade you as to that, you must give him the benefit of the doubt and you must find him not guilty.

But if you accept the evidence of TAM and LI, yon could conclude beyond a reasonable doubt that he had the necessary intent and find him guilty of murder.

Where the possibility exists that contemporaneous assaults by two persons might have been entirely independent, some explanation of the meaning of common design would no doubt be necessary, but in the present case we do not think that it was incumbent on the judge to say more than he did. In the circumstances the passage cited was unobjectionable. TAM Man saw the 2nd Defendant help to drag the Deceased back into the billiard saloon. LEE Kit-hung saw a man (who was clearly the Deceased) dragged in by the 2nd Defendant and another, and also saw the 2nd Defendant beat the man on the back with the thick end of a billiard cue while he lay unconscious on the floor. If those witnesses were believed, the jury could not have been in any doubt as to the existence of a common design. The same answer can be given to the complaint about the following passage in the summing-up:

Members of the jury, what intention would a person have who strikes a body lying on the floor with a billiard cue in that manner? Could it be any intention other than to cause that body, serious bodily injury?  If you drew that conclusion, then you would conclude that he had the intent to cause the deceased serious bodily injury. Since the evidence establishes that somehow or :other,  other, the deceased at some time in that particular episode, received blows which caused his death, then you would arrive at the decision that the 2nd Accused was guilty of murder.

If you were satisfied of those things beyond a reasonable doubt, that he had the common intent with whoever struck the fatal blows to do serious bodily injury, and therefore, he had the necessary intent in doing what he did to make him guilty of murder, and that would be your proper verdict.

The punctuation and paragraphing inserted by the shorthand writer is obviously suspect, and, apart from that, the second paragraph is somewhat obscure. Nevertheless the jury could have been in no doubt about the necessity to find common intent.

7. We have already cited a passage in which the judge mis - directed the jury as to the evidence relating to Count 2. There was a further passage relating to Count 5 in which it is now conceded that there was a mis-direction as to the evidence:

[PANG Pui-yuen] gave evidence that he was at the billiard room and that after the attack on Tai Ngan Chai, he retreated to a side wall. He said he was there cornered and that he was attacked by the 2nd defendant using a billiard cue.

Mr. Litton has submitted that these mis - directions could have affected the minds of the jurors in relation to the intent of the 2nd Defendant on Count 1. As to the second passage we think no prejudice can have resulted to the Appellant, because obviously what happened was that the judge confused PANG Pui-yuen with POON Chi-chuen.  The latter did give evidence that he was standing against the wall when he was attacked by the 2nd Defendant using a billiard cue (although he managed to dodge the blows aimed at him). It was Poon and not Pang who was cross-examined and asked why he had not told the police in his original statement that the 2nd Accused had attacked him. The passage relating to Count 2 was, in relation to Count l, in our view not so serious a mis-direction as to invalidate the verdict.

8. The matter which has given us most cause for concern is the absence of any warning by the judge as to the dangers inherent in the identification of a voice. The relevant evidence appears in the following passage:

To find [1st Defendant] guilty of murder, you would have to be satisfied beyond a reasonable doubt; and where, where would you find in the evidence that he did anything which showed that he was intending that really serious bodily harm should come to anybody but, in particular, to NG Fuk-nam? Now, unless you can answer that question, beyond a reasonable doubt, unless you can say to yourself: I'm sure - then you must find him not guilty - must find him not guilty of murder and not guilty of manslaughter.

Now, the case against the second defendant is a lot stronger. You have the evidence of 'Tai Ngan Chai' who says he heard the second defendant call out, Kill 'Tai Ngan Chai' first," And you will remember that he says that he's known the second defendant for quite some time, quite familiar with him, can recognise his voice.

There was the witness PANG who also said that he heard the second accused call out, "Kill 'Tai Ngan Chai'."

It is argued on behalf of the Appellant that a warning in accordance with the guidelines laid dorm in the Reg. v. Turnbull 1977 1 Q.B. 224 was essential and that the omission of any such warning was the more serious because the judge referred to the voice identification right at the beginning of his treatment of the case against the 2nd Defendant. Furthermore, it is said that the purported identification by Pang was worthless because he admitted in cross- examination that his evidence Bras hearsay, a fact of which the judge did not remind the jury. In our view Reg. v. Turnbull does not apply in all its rigour to a cave such as the present. The principle is correctly stated in the first paragraph of the headnote:

Whenever a case against a defendant depends wholly or substantially on the correctness of one or more identifications of the defendant, which the defence alleges to be mistaken, the direction to the jury should include a warning of the special need for caution before convicting the defendant and the reasons for that caution. (Emphasis supplied).

Here, the identification of the voice, although clearly an important matter, was not vital to the case, for the judge himself suggested to the jury that "the really important witnesses were Tam Man and LEE Kit-hung, neither of whom mentioned what has been described as the murderous invocation". Having said that, we would not have it thought that it would not have been better if the judge had warned the jury of the need for caution in its approach to the evidence of voice identification, even though this was not a matter relied upon in his closing address by counsel then appearing for the Appellant. It is unfortunate that Pang was not further questioned concerning his identification, for on one view of the evidence his identification was not even admissible. In cross-examination appears the following exchange:

That was as far as the cross-examiner needed to go. It was arguable that despite the witness's denial he was merely repeating what he had been told. In re-examination the matter was taken up again:

The difficulty about that is that the first question was imprecise and prompted an ambiguous answer, which could have been understood variously by those who heard it: the judge may have thought that the witness was confirming his denial that his identification was merely hearsay. Even if he did, it was desirable that the jury should have been warned against placing too much weight upon corroboration consisting of a voice identification by someone who had met the speaker only twice before. That the evidence of the voice identification was the first evidence against the 2nd Defendant which was mentioned by the judge did not give it any undue prominence in view of the fact that the shout was alleged to have been heard at the beginning of the attack which led to the death of the Deceased and was thus mentioned in chronological order.

Having considered such weaknesses as there are in the summing-up, we nevertheless are of opinion that no miscarriage of justice has resulted and this is therefore a proper case for the application of the proviso to Section 83(1) of the Criminal Procedure Ordinance. The appeal against the conviction on Count 1 is dismissed.

10th February 1982.

Representation:

Litton, Q. C. and Miss M. Tam (Kwan and Kwan) for Appellant.

Reid for Crown/Respondent.