Wong Ho-ming and Others v. The Queen
Read the full judgment text of CACC 371/1970 on BabelCite. This Court of Appeal judgment was delivered on 31 December 1970.
2. At about 4.30 a.m. on the morning of the 15th January, two young men named Chau Wai-chi and Chung Chi-kit, aged 20 and 17 respectively, were attacked and killed as they sat at a table drinking tea in the upstairs area - described as the "cockloft" - of a crowded restaurant known as the Hoover (or Ho Wah) Restaurant in Jordan Road, Kowloon. The attack was carried out by seven or eight men armed with knives, triangular files and other sharp weapons.
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CACC000371/1970 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 371 OF 1970 -----------------
Coram: Rigby, C.J., Mills-Owens and Pickering, JJ. Date of Judgment: 31 December 1970. ----------------- JUDGMENT ----------------- Rigby, C.J.: I have had the advantage of reading the judgment of Mills-Owens, J. with which my brother, Pickering, J., has expressed his agreement. The judgment of the majority of the court is the judgment of the court. I would not dissent from the final conclusions reached by the court but there are certain aspects of this case that are, in my view, a matter for some concern and inquiry. 2. At about 4.30 a.m. on the morning of the 15th January, two young men named Chau Wai-chi and Chung Chi-kit, aged 20 and 17 respectively, were attacked and killed as they sat at a table drinking tea in the upstairs area - described as the "cockloft" - of a crowded restaurant known as the Hoover (or Ho Wah) Restaurant in Jordan Road, Kowloon. The attack was carried out by seven or eight men armed with knives, triangular files and other sharp weapons. 3. Chau Wai-chi (also known as Lo B) sustained no less than 23 stab and cutting wounds and must have died almost instantaneously at the table at which he had been sitting. Chung Chi Kit (also known as Kit Chai) managed temporarily to elude his assailants; he ran, or jumped, downstairs from the cockloft and then crashed through the glass panels of the front door of the restaurant, but he was overtaken by his pursuers within a hundred yards of the restaurant and he died on the pavement having sustained some seven stab wounds. 4. The principal witness for the prosecution was a young girl named Chau Mei-hing, aged 14, who, remarkable though it may sound, had been telephoned shortly after 3 a.m. that morning by Chung Chi-kit at the apartment house at which she lived. Although she had only known him just over a fortnight she accepted the invitation extended to her by telephone to come down to the Hoover Restaurant and join him for a cup of tea. Sitting with Chung Chi-kit at the table in the cockloft when she joined him were three or four other men, including the first deceased, Chau Wai-chi. All the other persons were strangers to the girl. Whilst they were sitting there, three men approached the table. One of these men was the second appellant, whom Chau Mei-hing subsequently picked out at an identification parade but whom she admitted she had never seen prior to the morning of the incident. Within a matter of a few seconds later a further seven or eight men approached the table. One of these men was the first appellant, whom Chau Mei-hing said she had seen on about two occasions, previously but to whom she had never spoken. Chung Chi-kit greeted the first appellant. Almost immediately after that, the word "lok" was uttered by someone and the group of men then proceeded to attack Chau Wai-chi. The scene was one of general confusion and the girl, not surprisingly, was afraid. This girl was, indeed, the principal witness as to the events that occurred. Despite the fact that this restaurant was crowded to capacity at the time this savage incident took place, only one other eye witness was apparently available to the prosecution. Two other young girls, Leung Wai-ling and Ng Pik-ha, who were sitting downstairs, gave evidence as to what they allegedly saw. However, their testimony, particularly on the matter of identification, was of a flimsy and insubstantial nature and, after cross-examination, added little or no weight to the case for the prosecution. 5. Five men, including the three present appellants, were tried on these double charges of murder. The case for the prosecution against all five accused rested upon the contents of the statements made by them. Those statements, and the manner and circumstances in which they were obtained - as is almost invariably the case in the overwhelming majority of the cases that come before the Supreme Court for trial - formed a very substantial part of the time taken up in the trial of these proceedings. It is of some importance to consider the circumstances in which those statements were recorded since there is a striking factor common to all of these statements. 6. The killing took place about 4.30 a.m. on the 15th January. About 3 a.m. in the early morning hours of the 19th January, Detective Corporal 4098, Tsang Chiu-chit entered a restaurant in Canton Road, Kowloon. At a table inside the restaurant he saw four youths and four girls. He approached them, disclosed his identity and having ascertained that one of them was the first appellant, Wong Ho-ming, he took out his notebook and then and there wrote down the following entry:-
He then read that entry out to the first appellant and the first appellant then, according to the Corporal's evidence, without further ado and without hesitation, replied "I understand"; he then asked the corporal for his notebook, took out a pen from his own pocket and, without any prompting or questioning recorded the following statement:-
The corporal then arrested the accused - and, indeed, the other three youths and four girls - and took them all in handcuffs back to the Yaumati Police Station. 7. The admissibility of this statement was vigorously challenged by the defence at the trial on the ground that it was not recorded in the restaurant at all; that it was neither free nor voluntary nor, indeed, was it made by the first appellant at all. The first appellant said that he and the other seven young persons with him were arrested in the restaurant, handcuffed at once and taken to the police station. At the police station he was kept apart from the seven other young persons and later taken by the detective corporal into a small room. There the corporal, notebook in hand, asked him to tell him all he knew about the Hoover Restaurant incident. The first appellant admitted that he had been there but he said that he went there at the invitation of Kit Chai (i.e. Chung Chi Kit, one of the victims) and he denied that he had taken any part in the incident. The corporal became angry, insisted that he was not telling the truth, pulled his hair, struck him several times on the chest and then told him to write down all that the corporal dictated to him. The first appellant - who was then not yet 17 years of age - then became frightened and wrote down, on the instructions of the corporal, the statement to which I have already referred. The two further statements - statements of an implicatory nature - that he later made when formally charged and cautioned were also made as the result of a combination of threats made by the corporal and promises of assistance if he would co-operate. The nature of the assistance was that if he co-operated the charge would be one of manslaughter rather than murder. 8. The second appellant, aged 28, was arrested in a hut on Ping Chau Island at about 7.55 a.m. on the morning of the 20th January. On that morning Detective Corporal 3894, Hui Chi-keung from Yaumati Police Station, together with four detective constables, proceeded to Ping Chau Island and to a particular hut on that island. The second accused was in bed in that hut. The detective corporal, having entered the hut, disclosed his identity and having ascertained that the second accused was in fact Cheung Fuk-chung told him that he had something to say to him. Since the lighting in the hut was bad and it was a small hut the corporal asked the accused to come outside. When the second accused had gone outside the corporal told him that he was looking for him in connection with a certain case. At this stage, according to the evidence of the corporal, the second accused said:-
The corporal then, according to his evidence, at once stopped the accused from saying anything further, cautioned him and told him that he was arresting him in connection with the murder at the Hoover Restaurant. The corporal then took out his notebook and wrote into the notebook as follows:-
The corporal then read back to the second accused what he had written down in the notebook and asked him if he understood. The second accused said he understood and he signed the characters "I understand" appearing in the notebook and also signed his name. Then, according to the evidence of the corporal, the accused took the notebook and without any interrogation, questioning or prompting, wrote down the following statement:-
9. It is apparent from the line of cross-examination adopted that the version put forward by the second accused was an entirely different one. It was to the effect that he was arrested at the hut, handcuffed and then taken back to Yaumati Police Station. At the police station he was then taken to a small room by the detective corporal and there he was compelled, under threat of violence - and, indeed, after he had been actually punched twice in the chest - to record in the police corporal's notebook a statement dictated to him by the corporal. 10. The third accused, aged 24, who was employed as a watchman at Hong Kong University, was arrested at 11.30 p.m. on the 19th January within the precincts of the Hong Kong University buildings by Detective Corporal 2061, LO Kwong, of the Anti-triad Society Bureau. The detective corporal, who was at the time with three police constables and a police inspector, saw the third accused in the University grounds, stopped him, disclosed his identity to him and told him that he was arresting him:
The corporal then took the accused to Saiyingpun Police Station where he reported the arrest and then to the headquarters of the Anti-Triad Society Bureau in Gloucester Road. There, in the presence of the third accused, he recorded in his notebook a narrative of what had earlier occurred, in the following terms:-
He then read the narrative over to the third accused and asked him if it was correct. The accused replied in the affirmative and the third accused then signed the statement recorded in the notebook and then wrote in the notebook "I understand" and signed it. According to the evidence of the corporal, the third accused then, of his own motion and without any form of interrogration, questioning or prompting, took the detective corporal's notebook and wrote the following statement:-
Having written the statement he signed it and the corporal countersigned it. The detective corporal's evidence was to the effect that at the time all this occurred the only persons in the room were the third accused and himself. 11. The third accused told an entirely different story. He said that in the room with the police corporal was constable No. 3687. The corporal, in cross-examination, admitted that Police Constable 3687 was there but he said that he remained outside the door at the time and did not come in. The corporal further admitted that this constable was nick-named "Lo Fu Chai" (meaning tiger). The third accused, who was, of course, then under arrest, said that in this room the detective corporal, without any form of caution, asked him to tell him what had happened in the Hoover Restaurant. The third accused then made a statement to the corporal admitting that he had gone to the restaurant that morning at the invitation and request of a man called Ching Wan who told him that the had something he wished to discuss with him. In the restaurant he sat at a table downstairs waiting for Ching Wan. Ching Wan came in and told him that he, Ching Wan, had to go upstairs first because there was someone upstairs "waiting for him to negotiate a settlement". Ching Wan told him that he would come down again later. Shortly after Ching Wan had gone upstairs the third accused heard noises and shouts and cups and plates falling to the ground, as a result of this he and the other customers downstairs took flight and left the restaurant. The detective corporal was plainly dissatisfied with this statement and left the room for some 40 to 45 minutes. The corporal then returned to the room with a piece of paper with Chinese characters on it and told the third accused to copy the contents of the piece of paper into the corporal's notebook. The third accused, having read the writing on the piece of paper, said that that was not the account which he had given the corporal and he declined to copy the contents into the notebook. Thereupon the corporal took two pencils from his drawer and with the assistance of "Lo Fu Chai" squeezed the pencils between the fingers of the left hand of the accused thereby causing him very considerable pain. Finally, the third accused, under pain and duress, agreed to, and did, copy the contents of the piece of paper into the corporal's notebook, and signed it. The third accused maintained that the contents of that statement were neither voluntarily made by him nor were they true. The third accused was, in fact, acquitted on both charges by the jury. 12. The fourth accused, Cheung Mun-kei, aged 19, was arrested by D.P.C. 2126, Li Kwai, of the Anti-Triad Society Bureau at about 12.10 p.m. on the 20th January at a flat on the 11th floor of premises in Lee Garden Road. A party of police led by Police Inspector Chan Kai-wing had gone to these premises. Upon gaining entry the fourth accused was found with two females (one of whom was, in fact, his wife) in a room in the flat. He was told by D.P.C. Li Kwai that he was arresting him
The constable then orally cautioned him and told him - and I quote from his evidence - that:
The constable handcuffed him, took him to Wanchai Police Station and then to Room 508 at the headquarters of the Anti-Triad Society Bureau. There, in that room (which was in fact the same room as that to which the third accused had some hours earlier that same day been taken) D.P.C. Li Kwai, in the presence of the fourth accused, proceeded to record in the following terms what had earlier taken place:-
D.P.C. Li Kwai then read his note to the fourth accused and asked him if he understood. The fourth accused replied in the affirmative, wrote down the words "I understand" and signed it. The fourth accused then, according to the evidence of h constable, without any interrogation, questioning or prompting of any kind from the constable, took the constable's notebook and, entirely f is own volition, wrote the following statement:-
13. According to the evidence of Li Kwai, no one else was in the room at that time except Li Kwai himself and the fourth accused. 14. D.P.C. Li Kwai was cross-examined in considerable detail as to why it was necessary to take this youth to this room at the Anti-Triad Society Bureau and go through the solemn procedure of recording what had earlier occurred and again cautioning the fourth accused, having regard to the fact that at the time of arresting him he had told him why he was being arrested and had earlier cautioned him and the fourth accused had said nothing. It was put to him that the sole purpose for taking the fourth accused into this little room and again cautioning him was in the hope that he would in fact make a statement. Li Kwai denied that suggestion and said that he had reduced the record of events to writing "so that everything would be clearer". He was asked why, if it was necessary to make a contemporaneous record of events, he had not done so at the flat at the very time he arrested the accused. His answer was that it was "somebody else's place" where he (the accused) lived, that there was a bed in the room and that the two women were there and that the accused - and again I quote from the constable's own evidence - "looked at one of them". It was put to him that in the room in the flat where he had arrested the accused he had, in fact, then questioned the accused, asked him if he had been at the Hoover Restaurant and whether he had in fact been fighting there. It was further put to him that when he received no satisfactory answer he struck the accused and told him to admit that he had been at the fight. It was put to him that in Room 508 he again told the fourth accused to admit that he had taken part in the fight and that when he refused to do so the witness left the room for some time, returning again with something written down on a piece of paper which he, and two constables who were in the room with him, compelled the accused under threat and duress, to copy out in the witness's notebook. All these allegations the constable denied. The fourth accused, in giving evidence on his own behalf, reiterated the truth of the allegations which had been put to the constable in cross-examination. 15. The fourth accused was also acquitted by the jury on both charges. 16. The fifth accused, now the third appellant, is 18 years of age. He was arrested by Detective Corporal 4365 of Yaumati Police Station at about 1.10 p.m. on the 20th January at room number 367, Block 10, Tai Hang Tung Resettlement Estate. According to his evidence the corporal, acting on information received, had gone there together with one other constable, to wit, D.P.C. 4667. There were a number of people in Room 367 and the corporal, after having been admitted, disclosed his identity and asked which one was Wah Chai. The fifth accused replied that he was and inquired what was the matter. The corporal said that he had got something to talk to him about whereupon the fifth accused suggested that they should both go outside. Outside the room, in the corridor, the corporal then, according to his evidence, produced his warrant card, said who he was and said:-
According to the corporal's evidence, the fifth accused then said:-
The corporal, according to his evidence, immediately stopped the fifth accused from saying anything further and he then took out his notebook, told the accused that he was going to record the caution and also the reason for the accused's aprehension, and that after he had done that the accused could say what he wanted. Pausing here for a moment if, indeed, the fifth accused did make the statement which the corporal says he did, it is surprising that the corporal did not at once take out his notebook, record the admission made by the accused, read it over to him and ask him to sign it. However, what the corporal did then and there write in his notebook is recorded in the following terms:-
The corporal then read out to the accused the statement he had recorded and asked the accused if he understood. The accused then, according to the evidence of the corporal, without further ado and without any form of interrogation, questioning or prompting, took the corporal's notebook, borrowed his pen and wrote the following statement:-
It was put to the corporal in cross-examination that the evidence he had given was untrue and that the fifth accused had in fact been arrested by four police officers, that he was arrested not in the flat at all but down on the ground floor of that building, that he was handcuffed and then taken back to Yaumati Police Station, and that he was then taken into a little room where he was compelled by the detective corporal, as the result of actual blows inflicted upon him and the threat of further ill-treatment, to write out in the detective corporal's notebook a statement dictated to him sentence by sentence by the corporal. The corporal denied those allegations; the accused himself gave evidence to confirm the truth of those allegations. 17. The statements allegedly made by the accused having been challenged at an early stage of the trial as not having been freely and voluntarily made the learned trial judge, in accordance with the normal practice, heard the evidence of both the prosecution witnesses and the accused themselves for the purpose of determining whether they had been freely and voluntarily made. He was apparently satisfied that the allegations of brutality and ill-usage were totally fabricated and he held that the statements were freely and voluntarily made and he accordingly ruled them as admissible in evidence. I have some hesitation ...(illegible) this court can go behind that ruling - particularly since it has not been made the subject of any specific ground of appeal - and it is for that reason that I do not dissent from the judgment of the majority of this cour, that is to say, the judgment of the court, that the appeals of the first and third appellants should be dismissed. But in the course of his lengthy and careful ruling on the vitally important issue in this case as to the admissibility of these statements the learned judge said this - and I quote his own words [at page 495 of the typewritten record]:-
The learned judge might well have gone on to say that if the evidence of the police officers was to be believed in each case the five accused, without any form of questioning, interrogation or prompting, of their own volition at once wrote down in the notebook of each police officer a statement which, in varying degrees; disclosed their complicity in the charges of murder preferred against them. I say "in varying degrees" because some of those statements are clearly inculpatory whilst others, though exculpatory, disclosed the actual presence of each accused at the time and place where the killings were committed and, to that extent, were relied upon by the prosecution. 18. In the course of his ruling that the statements were admissible as being freely and voluntarily made the learned trial judge said this [Page 496 of the typewritten record]:-
19. It is, in my view, abundantly clear from his ruling that the learned judge has taken the view that since the accused had chosen to challenge the statements tendered in evidence upon the basis and contention that they were totally fabricated and that they were compelled to make them as the direct consequence of duress or ill-treatment, he himself, whatever his doubts might be, was not entitled to speculate upon the evidence by taking the view that the statements, to use his own words "may have to some extent been dressed or altered". Finally, he says [Page 503 of the typewritten record]:
The doubts which he had in his mind he variously described as causing him "some small misgiving" and "slightly disquieting elements in the police evidence". As I have said, the case for the prosecution rested to a very large extent upon the statements made by each of the accused persons. These were charges of a double murder. With great respect to the learned judge, if there were grounds for believing that the police officers, to use a relatively neutral expression, had been less than frank with the court in disclosing the manner in which those statements had been taken, to describe such conduct as causing him "some small misgiving" or "slightly disquieting elements in the police evidence", seems to me not only a classic understatement but also to show an entirely erroneous appreciation of the manner in which their testimony should be assessed and considered when weighing the value to be placed on their evidence as a whole as to the admissibility of such statements. As this court said in the recent appeal of Li Kar-wah v. The Queen(1):-
20. For my part, although I readily appreciate that I did not have the advantage which the trial court itself possessed of hearing the police officers give their evidence and accordingly being in a position to assess their credibility, I find it extremely difficult to believe the testimony of the police officers that each of the statements was made in the manner they alleged, that is to say, without any form of questioning, interrogation or prompting whatsoever. 21. It is common knowledge that before a statement is admissible in evidence it has to be affirmatively proved by the prosecution beyond reasonable doubt that the statement was freely and voluntarily made. That proof has to be to the satisfaction of the trial judge. Again I would refer to the recent decision of this court in Li Kar-wah and An'r v. The Queen(1). That was a case which again turned upon the admissibility of certain statements allegedly made by the accused and tendered in evidence by the prosecution. In the course of its judgment in the case the Full Court said:-
Finally, I think it relevant to quote the following passage from the judgment of McRuer, C.J. in the Canadian case of R. v. Washer(2) (see Admissibility of Confessions by Kaufman p.21):-
22. The overwhelming preponderance of cases that come before the Supreme Court, and a substantial number of cases that come before the lower courts, depend, to a very large extent, upon so-called "voluntary confessions". These "confessions" or statements are usually vigorously challenged and repudiated on the ground that they were neither freely nor voluntarily made. In the Supreme Court in the majority of cases the greater part of the trial - and often for weeks on end - is taken up with the hearing of the voire dire for the purpose of determining, in the absence of the jury, whether such statements were in fact freely and voluntarily made. For my part, I wonder whether the time has not come - indeed, if it is not long overdue - to adopt the practice emanating from the Indian Code of Criminal Procedure and followed in many territories, both in Africa and in Malaysia, that no confession shall be admitted in evidence unless made before a magistrate. I do, of course, readily appreciate that the practical difficulties of providing a sufficient number of judicial officers - even if Supreme Court and District Court Judges and Justices of the Peace are also made available for such a purpose - to be ready at all times to record confessions, may be so insuperable as to render such a course impossible. In the alternative, I would postulate the question as to whether the courts of this Colony should not adopt the salutary practice which, from time to time, has been laid down in the East African Court of Appeal that the judge should warn the jury (and in cases where the court is sitting without a jury warn itself) that the general principle is that it is unsafe to convict on a retracted confession in the absence of corroboration in material particulars. 23. Finally, I would refer to another recent decision of this Court, differently constituted, to wit, the case of Leung Tak-fuk v. The Queen(3). That was a case in which the prosecution, in support of the charge of forgery preferred against the accused person, sought very largely to rely upon a cautioned statement made by him in the course of the investigation. In quashing the conviction in that case, the Full Court said:-
24. I am only too well aware of the wholly deplorable lack of co-operation and support given all too frequently by the general public to the police in the investigation of serious crime. The present case is, perhaps, a typical example. These two brutal killings were committed in a restaurant crowded with people. Yet the police were apparently only able to get hold of five persons present in the restaurant who were able to come forward and give evidence - and not particularly helpful evidence - as to what they had allegedly seen. Making every allowance for the fact that those present in the restaurant must almost inevitably have been very frightened at the incident that took place before them and in consequence may very genuinely have had difficulty in recognizing and identifying the persons involved, it is difficult to believe that evidence of a more positive nature could not have been given by a greater number of persons present at that time. Nevertheless, I would respectfully associate myself with the words I have just quoted from the judgment in the case of Leung Tak-fuk v. The Queen(3) that "in the experience of the judges of this Court too great reliance is often placed upon statements by accused persons where other and more satisfactory evidence could be adduced after further investigation." The obvious defect in relying upon allegedly voluntary statements - quite apart from the procedural difficulty and the almost interminable length of time taken in court in seeking to establish that such statements were in fact freely and voluntarily made - is that it may - and I deliberately use the word 'may' - result in other methods of investigation not being pursued and pressed to a thorough and complete conclusion. 25. Subject to the observations that I have considered it both desirable and necessary to make in this case, I do not dissent from the judgment which has been delivered by Mills-Owens, J. and assented to by Pickering, J. That judgment, as I have been at pains to emphasize, being the judgment of the majority of the court is the judgment of the court. Representation: M. Huang (Brutton & Co.) assigned for 1st Appellant. W. Chan (David Tsang & Co.) assigned for 2nd Appellant. A.H. Suffiad (C.C. Lee& Co.) assigned for 3rd Appellant. ...(illegible) Corecran, S.C.C. for Crown/Respondent. (1) Crim. Appeal No.396/70. (2) (1947) 92 C.C.C. 218. (3) Crim. Appeal No.389 of 1970. CRIMINAL APPEAL NO. 371 OF 1970 -----------------
----------------- Coram: Full Court., Sir Ivo Rigby, C.J., Mills-Owens and Pickering JJ. Date of Judgment: ----------------- JUDGMENT ----------------- Mills-Owens & Pickering JJ.: These appeals concern events at the Hoover (or "Ho Wah") Restaurant at Jordan Road, Kowloon in the early hours of the 15th January last, at about 4.30 a.m. in the course of which two youths were murdered and a third person was wounded. Clearly there was a concerted attack with knives and other sharp weapons by a gang of youths or men upon the two deceased victims, who had seated themselves at a table in the cockloft of the restautant, where, at the time, most if not all the tables were occupied. Clearly, also, concerned in the incident, to a greater or lesser degree, was a person named Ching Wan, otherwise known as Kwok Hung-kuen, a person not in custody, who had arranged to meet the two victims there that morning and was seated with them there when the attack took place. Also seated at the same table when the attack occurred was a young girl of some 14 years of age, CHAU Mei-hing, who had accepted an invitation to meet one of the victims to have tea at that unusual hour, and who gave evidence for the prosecution. Downstairs in the restaurant were two other girls, also prosecution witnesses, namely NG Bik-har and LEUNG Wai-ling. The three appellants were the 1st, 2nd and 5th accused at the trial; each was charged, together with the 3rd and 4th accused with three counts, being separate murder charges in respect of the two men killed, CHAN Wai-chi otherwise known as "Lo Bi", and CHUNG Chi-kit otherwise known as "Kit Chai", and a charge of wounding the third person, LIU Muk-tim. The 3rd and 4th accused were found not guilty on all three counts. The 1st and 2nd appellants were each found guilty on the two murder counts and not guilty of the third count of wounding; the 3rd appellant was found guilty on all three counts. The 1st appellant, being under age, was sentenced to detention during Her Majesty's pleasure. The 2nd and 3rd appellants were sentenced to death. 2. As the motive for the attack, it appeared that a girl referred to as Po Po had transferred her allegiance from one gang to another, that is to say from the two murdered victims and their associates to a gang in which the man Ching Wan was, apparently, a leading figure. It appears that the two victims killed were there that morning, as they understood, to negotiate for a payment of $1,000 by Ching Wan's gang as compensation for the loss of the girl Po Po, whereas associates of Ching Wan were there, ostensibly to negotiate but actually with the intention of killing, or at least causing grievous bodily harm to, the two victims. The wounded man, LIU Muk-tim, was simply a customer of the restaurant, unconcerned with either party. 3. The only eye-witness who gave anything in the nature of a detailed account of the commencement of the attack was the girl CHAU Mei-hing. She said that as she was seated at a table in the cockloft, with the two murdered victims, a group of three men came and stood near the table, one of them being the 2nd appellant. Within a matter of seconds in point of time, a second group of seven or eight men came and stood near the table, one of them being the 1st appellant. The 1st appellant was greeted by the second deceased victim, Kit Chai. Then, again within a matter of seconds, someone uttered the word 'Lok', meaning to attack; and the ten or eleven men rushed forward, surrounding the first deceased victim Lo Bi and attacking him with knives. Under questioning she said that she saw five or six of the ten or eleven men actually attacking Lo Bi but could not identify any person as one of these five or six. She did not see what happened to the second deceased victim, Kit Chai. Clearly, the scene was one of considerable confusion and frightening in the extreme. As for her own actions, she said that immediately upon the attack taking place she jumped up from the table and ran downstairs. There she saw six or seven men run down from the cockloft, each and every one of them holding a knife. In this respect she was corroborated by other witnesses, in particular the girls NG Bik-har and LEUNG Wai-ling, who were downstairs and heard the commotion break out. The effect of the corroborative evidence was that the second deceased victim, Kit Chai, ran for his life, jumping down from the cockloft over its balcony on to the ground floor and then running for the front door, bursting through its glass panels, only apparently to be caught outside on the pavement by those of the attackers who had run downstairs holding knives after Lo Bi had been dealt with. Lo Bi sustained some twenty-three wounds consisting of knife and triangular file wounds and a chopper wound and died very shortly after the attack. Kit Chai died on the pavement outside the restaurant, having sustained some seven wounds. The girls NG Bik-har and LEUNG Wai-ling gave evidence of being seated together downstairs and of seeing various persons going upstairs before the commotion broke out, and of seeing various persons thereupon came downstairs. As the restaurant was shown in evidence to have been very crowded, both upstairs in the cockloft and downstairs, even at that early hour, some of those going upstairs before the attack and some of those running downstairs when the attack took place must have been innocent customers. The value of the evidence of the two girls in support of the prosecution. Therefore, depended on any identification they were able to make of any of the accused as being actually armed with a knife or other weapon capable of inflicting the injuries sutained by the two deceased men. Under cross-examination both these witnesses wavered in this respect. 4. As to the 1st appellant, LEUNG Wai-ling said that she saw him carrying a knife as he camd downstairs; under cross-examination she said she was not positive; under further cross-examination and on being told that her friend NG Bik-har had said that the 1st appellant was carrying a jacket she said that it seemed to be so. NG Bik-har first said that the 1st appellant was one of those running downstairs. In cross-examination she said it may have been someone similar in appearance and that that person held some article of clothing. 5. As to the 2nd appellant, both girls identified him as entering the restaurant, he being already known to one of them. Both girls also said that he was not carrying anything, either on going upstairs or on coming downstairs. Further in respect of the 2nd appellant, there was the evidence of a witness HONG Kin-ching who said that at about 8.30 a.m. that morning four men came to his home at Lai Yuen Building, Leighton Road, Hong Kong, one of them being the 2nd appellant. They brought with them a parcel containing 7 or 8 knives for the purpose of depositing them there. The 2nd appellant unwrapped the knives, but that was done on the orders or at the request of one of the four, namely a person called Ma Kai. 6. As to the 3rd appellant, NG Bik-har said she saw him coming downstairs holding a knife but under cross-examination she said she could not be positive. She agreed also that she had not identified him at any identification parade. LEUNG Wai-ling, in her evidence, did not implicate him. 7. The injured man LIU Muk-tim was unable to identify his attacker or anyone else. When the attack took place at the cockloft he ran for the stairs and it was as he was on the first step down that he was struck a heavy blow from behind; later he found that he had three wounds of which two were superficial; he saw no knife in anyone's possession. 8. There was also the evidence of another customer seated in the cockloft, in corroboration of the general picture of the incident. He was CHEUNG Sze-tai who said that he saw two men come upstairs and seat themselves at the table where eventually the attack took place; also at the table was a 'teen-age' girl (a statement which fits the description of the girl CHAU Mei-hing); shortly after those two men sat down at the table a group of seven or eight men came up and fell upon the two men; all seven or eight seemed to be taking part in the attack; they were using their arms with chopping motions; they were holding things wrapped in newspaper; one of the two victims of the attack broke away and leapt down over the balcony; he saw one victim with a knife sticking in his back and he saw a man pull it out; he could not identify anyone. 9. Five statements found to have been voluntarily made by the 1st appellant were admitted in evidence, namely Exs. P45A, B and C, P46 and P47. These were to the effect that he and a number of others went to do the act, among them being the man Ching Wan, also Tai Sin (the 2nd appellant) and Ah Wah (the 3rd appellant); he had used a boy-scout knife to stab the victim CHAU Wai-chi (otherwise Lo Bi) twice; subsequently he had hidden the knife at the Eung Mei Building in Leigton Road, Hong Kong; CHUNG Chi-kit, the other deceased (otherwise Kit Chai) was a friend of his and he did not have the intention to kill him. This appellant gave evidence at the trial. He said that on the day before the incident he met the second deceased, Kit Chai, who invited him to have tea with him at the Hoover Restaurant next morning at 4.30 a.m. Kit Chai also told him that he was going to receive $1,000, but did not say why; so he went along to the restaurant next morning wearing a jacket which he took off as he was ascending the stairs to the cockloft; there were a number of persons going up and down, and in the cockloft there were five or six persons looking for seats; he saw the two deceased victims seated at a table and one of them, namely Kit Chai, got up and greeted him. Then he said five or six persons engaged in a fight at the table but he did not see anyone holding anything. One man jumped up from the table and ran to the middle of the cockloft; he did not know him then but afterwards came to know him as the 2nd appellant. He himself was frightened and ran downstairs still holding his jacket. He had no weapons. He did not hear the word 'Lok' called out. He came up alone, not with any group. He did not see Kit Chai jump down from the cockloft or running out of the restaurant. He had not known any of his co-accused previously. His statement had been wrung from him by force and threats, and were untrue. 10. The 2nd appellant did not give evidence, but was found to have voluntarily made three statements, one on his arrest (Ex.P59) and two on being charged (Exs. P49 and 50). In these statements he says that he went to the restaurant as a result of a telephone call from Ching Wan (otherwise KWOK Hung-kuen) in order to take part in a negotiation between Ching Wan and the first deceased who wanted $1,000 from Ching Wan on account of the girl Po Po leaving him (the deceased). A fight broke out, in respect of which, in his statements, he purported to implicate Ching Wan and the 1st appellant as attackers. As for himself, on seeing the fight break out he overturned the table and fled. The Crown recognised his statement as being largely exculpatory but relied on the evidence they afforded of his admitted presence when the attack took place, his connection with Ching Wan, his interest in the matter of the ostensible negotiation, and particularly upon a remark in his statement Ex. P59 that afterwards he, Ching Wan and the 1st appellant separately 'returned' to the flat in Hang Mei Building, being a place mentioned by the 3rd appellant in his evidence as the place where he slept overnight together with Ching Wan and others before going to the restaurant. It was further alleged that immediately before writing the statement Ex. P59 the 2nd appellant made an extremely damaging oral statement. It will be necessary to refer to this in detail when considering his grounds of appeal. 11. The 3rd appellant was alleged to have made three statements, Ex. P62 on arrest and Exs. P56 and P57 on being charged. According to the statement Ex. P62 the 3rd appellant was recruited by Ching Wan on the 14th January for the purpose of the 'negotiation' with Lo Bi next morning at the Hoover Restaurant. That night he slept at the premises of Ma Kai in Leighton Road, Hong Kong, together with Ching Wan and others, including the 1st and 2nd appellants and the 4th accused. Next morning they all crossed the harbour to the Kowloon side. There they took a taxi to the Kun Chung playground, where Ching Wan gave him a pointed knife and told him to go on to the restaurant. Shortly after he arrived one person chased another person down the stairs from the cockloft. He then 'as a matter of convenience' chopped the back of the person being chased. Afterwards he returned to Ma Kai's house and deposited the knife there. That was all he did; he did not chop either of the two deceased. In his evidence, the 3rd appellant agreed that he had met Ching Wan on the 14th and slept at a flat in Happy Valley, the district in which Leighton Road is situated, that night until the early hours when, together with two others and Ching Wah he crossed the harbour to Kowloon. All he had been told by Ching Wan was that he, Ching Wan, was going to have tea with someone. On arrival at the pier on the Kowloon side Ching Wan was met by a group of some ten men and had some conversation with them. Then he, the 3rd appellant, Ching Wan, and the two others, took a taxi to the Kun Chung playground where he saw seven or eight persons waiting. He did not know any of them. Ching Wan entered the public lavatory there and joined in a group inside the lavatory building. He, the appellant, also went in but only to obey a call of nature. On coming out he was told by Ching Wan, or by another person then present, to go to the Hoover Restaurant but to arrive after the others. Arriving at the restaurant he was looking for Ching Wan there, just to have tea with him, when a fight broke out upstairs. At that moment he was half-way up the staircase. He turned back and ran out of the restaurant. He had never seen any of his co-accused prior to his arrest and did not know either of the two deceased victims. He said that he was not identified by any witness at any identification parade (which in fact was true as the girl NG Bik-har admitted in cross-examination.) In cross-examination, the 3rd appellant said that he had never met Ching Wan previously, and never at any time in the course of the events of the 14th and 15th January did he hear any of the conversations which Ching Wan had with the various men he met at Kowloon; nor was he aware what went on at the Kun Chung playground and in the public lavatory there. Further he was not told of the purpose of the visit to the Hoover Restaurant, and never enquired. He was not told, and did not ask, why he was directed to arrive at the restaurant a few moments later than Ching Wan and the others. He did not see any of his co-accused at the restaurant, not even those who had admitted they were there. He did not see anyone jump down from the cockloft. He did not see anyone chasing another or others. He never saw Ching Wan again. He had no explanation why some of the facts in his statements were true, namely of meeting Ching Wan in Sai Yin Chai Street on the 14th, going with him across the harbour, together with one Fat Chai, to a flat in Happy Valley, and next morning getting up at 4 a.m. All that he himself had told the police was that he had been at the Hoover Restaurant. As to the statements admitted in evidence against him they had been forced upon him by the police. 12. The 3rd and 4th accused, who were both acquitted, also gave evidence. The 4th accused, who was not identified by any witness, gave evidence of an alibi, stating that he was at home on the night of the 14th January until about 10 a.m. on the 15th when on receipt of a telephone call from Ah Wing (a name mentioned by others of his co-accused) he went to the flat of the man Chong Kin-ching. There he saw Chong Ah Wing, and several others unknown to him. The 2nd appellant was not there and he saw no knives there. Whilst there he heard the news of the attack at the Hoover Restaurant over the television; shortly after that he returned home. He did know Ching Wan previously and he had told him that he, Ching Wan, was going to have a negotiation with someone at the Hoover Restaurant at about 4 a.m. on the 15th. Ching Wan asked him to come there but he refused and did not in fact attend. The 3rd accused, in his evidence, stated that he arrived at the restaurant at sometime between 4 and 5 a.m. at the request of Ching Wan who was a friend of his. Ching Wan told him that he had something important to discuss with him there, but when Ching Wan arrived he was accompanied by other persons and said that he first had to go upstairs to negotiate. As he, the 3rd accused, sat downstairs a fight broke out upstairs and he fled. He corroborated the presence of the two girls NG Bik-har and LEUNG Wai-ling sitting downstairs. As he said, he knew none of his co-accused previously. He saw none of them there that morning; nor did he see anyone jumping down from the cockloft. 13. We propose first to deal with the case of the 2nd appellant against whom there was independent evidence of his presence in the company of the body of men who launched the attack on the two deceased, and of his presence when a parcel of knives was deposited at the home of CHONG Kin-ching some four hours after the attack, that parcel having been brought there by four men of whom he was one, and he having then opened the parcel, although admittedly on the order or at the request of another. If his statements were to be believed there was also evidence of his association with Ching Wan and knowledge of a 'negotiation' to take place at the restaurant that morning. The learned trial judge told the jury that without his statements the case against this appellant was very weak. This referred not only to the written statements Exs. P49, P50 and P59, but also to an oral statement alleged to have been made by the appellant to the arresting officer, Corporal HUI Chi-keung, immediately before the statement Ex. P59 was taken. It was alleged by the Corporal that, upon his arresting the appellant, the appellant said words to the effect "Elder brother, I know what it is about. The thing that happened several days ago, I took part" - this is how it was stated to the jury in the summing-up at one point. Thereupon the Corporal, as he said, stopped and cautioned him, following which the appellant made the written statement Ex. P59. The learned judge referred to the alleged spoken words 'I did take part' on several occasions in his summing up to the jury. He referred to them as 'at once said', as being 'a sort of instinctive reaction', as being 'a very important item of evidence indeed', and finally in the following terms:
14. In our view, this direction was so gravely prejudicial to the appellant that his conviction cannot be allowed to stand. In the written statement attributed to him and admitted in evidence, made immediately afterwards, the appellant explained the sense in which he had 'taken part' at the restaurant, so that the inference which could fairly be drawn is that if he had not been stopped by the Corporal from going on with his oral statement he would have proceeded to say what, according to the prosecution, he immediately afterwards wrote down, namely: "I did take part in the negotiation at the cockloft of the Ho Wah Teahouse". In these circumstances his appeal must be allowed on this ground, and we do not go on to consider his other grounds of appeal. 15. Numerous grounds of appeal were lodged and argued on behalf of the 1st and 3rd appellants. We propose to deal only with those which appeal to us to have some substance or to raise matters of general interest. We deal first with the case of the 1st appellant. It was argued that the judge misdirected himself in law when he allowed the prosecution to call; in the course of the voir dire, witnesses who were not on the depositions. We are satisfied that there is no merit in this ground of appeal. The prosecution cannot be in a position to know that witnesses it will call on an issue of admissibility until the ground of objection is made known; at most it is a matter of the defence asking for an adjournment if it is taken by surprise. Grounds 2 and 3 involved contentions that in summing up the judge paid insufficient attention to the circumstances in which the appellant's alleged confessions were made and to alleged contradictions in the evidence of the arresting officer Corporal Tsang. As to the circumstances of the confessions it is sufficient to say that the judge carefully warned the jury that their task was to decide whether or not they were true and that they would be obliged to consider the circumstances under which they thought the statements were taken, and he went on to develop this theme fully in passages covering several pages o of the transcript. As to the alleged contradictions in the Corporal's evidence they are matters of but minor importance in our view. Under ground number 7 it was argued that the judge misdirected himself in law in allowing rebuttal evidence as to the appellant's standard of education. This had a bearing on the question whether the appellant was capable of having written certain characters in his alleged statements. In fact, as matters turned out, the rebuttal evidence was of more assistance to the defence than to the prosecution, the witness called in rebuttal giving evidence that there was a marked difference in quality as between one statement and another. Further, in our view, the learned judge was entitled, in the exercise of his discretion, to admit the evidence in rebuttal. The defence alleged that the statements of the appellant had been fabricated and forced on him by the police. In these circumstances, on the authority of the case of Milliken ((1969) 53 Cr. App. R. 330) the judge acted correctly in allowing evidence in rebuttal tending to show that the appellant had received more schooling than he would have had it appear. 16. Under the 10th ground of appeal it was contended that there was misdirection in failure to direct the jury to consider counts 1 and 2 (i.e. the murder counts in respect of each deceased) separately. In his summing-up the judge directed the jury that those two counts stood or fell together. We consider that he was entirely correct in so directing the jury. Clearly, this was in substance one attack upon the two deceased jointly, carried out by the same gang at the same time and with the same weapons. It would have been unrealistic to distinguish between the attack upon the one and the attack upon the other, and verdicts of guilty on the one count of murder and of not guilty on the other court would have been inconsistent in the circumstances of such a simultaneous assault. 17. Accordingly the appeal of the 1st appellant is dismissed. 18. Turning to the case of the 3rd appellant, it was argued under ground 1(a) that the judge was wrong in suggesting to the jury that the prosecution had established a certain indirect link between the co-accused. We consider that there is no substance in this criticism. If the evidence for the prosecution were to be accepted, including the statements, there was a link established between the co-accused in regard to their attendance at the restaurant that morning, if only in relation to an ostensible negotiation. 19. Under paragraphs (b), (c) and (d) of ground 1 of this appellant's grounds of appeal, other criticisms of the summing-up were made but they related to minor matters of no real substance in our view. 20. Paragraph (e) of ground 1 raised the question whether verdicts of amnslaughter should have been left open to the jury on counts 1 and 2. As was pointed out in the case of McCracken ( ) there are cases in which it would be a disservice to the accused to leave such a verdict open to the jury; in some circumstances to take that course could well result in a verdict of manslaughter being returned in lieu of a verdict of acquittal. We regard this as such a case. There was no basis for a verdict of manslaughter in the present case in the absence of evidence that one or other of the appellants had some intent to do less than kill or cause, grievous bodily harm. The sole issue before the jury, in the case of each accused, was whether he was a fully consenting participant in the attack, and the directions of the learned judge in this respect were very fully and impeccably expressed. We would refer in this connection to the case of Lovesey and Peterson [(1969) 53 Cr. App. R. 461] where the Court of Appeal (Criminal Division) refused to substitute a verdict of manslaughter in a case where a number of persons attacked and robbed a jeweller and in the course of the attack inflicted injuries which caused his death, since, if a common design to cause grievous bodily harm was excluded, the jury might have found that the killing was the unauthorised act of one adventurer going beyond the common design, for which act the others would not be responsible. 21. In the case of this appellant the question for the jury on counts 1 and 2 was whether, once it was accepted that he wounded the man Liu Muk-tim, it could be inferred beyond a reasonable doubt that he thereby indicated an intention to associate himself with the attack on the two deceased victims in the manner in which it was carried out. By their verdicts of guilty on each of the three counts the jury must be taken to have so found. 22. For these reasons the appeal of the 3rd appellant is also dismissed. Representation: Ming Huang ( instructed by Brutton & Stewart) for the 1st appellant. William Chan (instructed by David Tsen & Co.) for 2nd appellant. A.H. Suffiad (instructed by C.C. Lee & Co.) for 3rd appellant. |