Chu Yuen Tat v. The Queen

CACC000043/1971

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL No. 43 OF 1971

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Coram: Full Court: Mills-Owens & Pickering,JJ.

Date of Judgment:

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JUDGMENT

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1. The appellant appeals against conviction by the verdict of a jury on two counts, namely the murder of a man named TSANG Yu-chau, and the wounding with intent of a man named MAK Yiu-wing. Having been found to be under the age of 18 years at the time of the murder, he was sentenced to detention during Her Majesty's pleasure. The convictions arise out of events that occurred at about 2 p.m. on the 26th September, 1970 at a teahouse known as the Wing Hing Herbal Teashop situate at No.1-F, Shek Kip Mei Street, ground floor, Kowloon. Four persons were involved; on the one hand the appellant and a man called La Cha Wah, and on the other hand the deceased Tsang and the wounded person Mak. The case for the Crown was that the appellant and La went to the teahouse, each being armed with a knife, with the full intention of attacking the deceased and Mak. The trial proceeded against the appellant alone, the man La not having been taken into custody. There was a considerable body of eyewitness evidence to support the Crown case. In addition, in a statement made to the police by the appellant, he admitted stabbing the man Mak and also hitting the deceased Tsang but he added that he did not know whether Tsang was stabbed and wounded by La or was stabbed by himself because the occasion was confused. The appellant also gave evidence at the trial, the burden of which was that there was no pre-arranged plan between him and La to attack the deceased and Mak, that when he accompanied La to the teashop he was not armed, that at the teashop he was attacked by Mak with a knife, that thereupon La proffered a knife to him, the appellant, which he, the appellant, then used to fight Mak whilst La similarly fought the deceased, and finally that he was unsure whether or not in the course of his fight with Mak he may have stabbed the deceased.

2. The appeal raises two grounds, the first ground being in respect of conviction on both counts, and the second being against conviction on the first count of murder. It is convenient to deal with the second ground first. This ground is to the effect that the trial judge failed to put the defence, as outlined above, to the jury. We are entirely satisfied that there is no substance in this ground of appeal. The learned judge fully canvassed the features of the defence, referring especially to the statement made by the appellant and to the precise substance of the appellant's evidence in the witness box; he put to the jury specifically the matters of common design, self-defence, provocation, and finally the possibility that the appellant whilst fighting with Mak had stabbed the deceased accidentally. Indeed, the possibility of such accidental stabbing was put to the jury on four separate occasions in the summing-up, viz., at page 7, 8, 21 and 23. The jury could have been left in no doubt whatsoever that this possibility was one which they had to resolve as a question of fact. It is urged by Mr. Robert Wei, counsel for the appellant, that the judge failed to indicate to the jury that if they rejected the defence of accident and came to the conclusion that the appellant had deliberately stabbed the deceased, then they must go on to determine whether this resulted in the infliction of the fatal stab wound. We can perceive no merit in this point, for, if the evidence for the prosecution were to be believed, this was obviously a case where two men, each armed with a similar weapon, a knife, were engaged in attacking the same victims at the same time, so that in the absence of any defence such as self-defence or provocation they were engaged in the execution of a common design, each therefore being as fully responsible as the other for the consequences thereof. We would refer to the decision in Mohan v. R.⁽¹⁾

3. The first ground of appeal raises a technical point on that passage in the summing-up which deals with the question of intention being inferred from what may be foreseen by a reasonable person as the consequences of his act. Here the complaint is that although the learned judge in that passage twice referred to the consequences which a reasonable man 'would foresee', elsewhere in that passage he used the expression 'could foresee' on two occasions and, on one occasion, 'can foresee'. Counsel for the appellant submitted that this did not put the test to a sufficiently high degree, whereas Mr. Lucas, Crown counsel, contended that this was merely an exercise in semantics. Further, as Mr. Lucas pointed out, the learned judge had immediately gone on to direct the jury in the terms that, when they applied that test of what a reasonable man could have foreseen as being the probable result of his own act, they (the jury) must do so by applying it to the appellant, being still charged with the duty of applying that test to the individual who was being tried by them in order to see whether that test did fit him and his capacity such as the jury found it to be. This, Crown counsel argued, was putting the matter in a form favourable to the appellant, in that at the time of the offence the new section 65A of the Criminal Procedure Ordinance (Cap.221) was not yet in force (that section providing, generally speaking, that the test to be applied in determining proof of criminal intent is the subjective test), that is to say, did the accused himself intend or forsee the consequence of his acts or omissions. In the circumstances, we consider it unnecessary to determine whether the use of the word 'could' instead of 'would' or 'must' was erroneous, being entirely satisfied as we are that the jury were made fully to understand that they were concerned to determine the actual intent of the appellant himself. In these circumstances it is unnecessary for us to decide whether the law as laid down in Smith v. D.P.P.⁽²⁾ was in force in the Colony prior to the amending section 65A of Cap.221, or to determine the exact content or scope of that decision.

4. In our view, therefore, neither of the points raised on the appeal can succeed and the appeal is accordingly dismissed. For the purposes of the record, we would refer to the authorities cited on the matter of the duty of the trial judge to put the defence, however weak, adequately to the jury; these authorities, in the order in which they were cited to us, are:

Dinnick [1909] 3 Cr. App. R.77;

Raney [1952] 29 Cr. App. R. 14;

Badjan [1966] 50 Cr. App. R. 141; and

Immer v. Davis [1917/18] 13 Cr. App. R. 22.

Representation:

Oral judgment reduced into writing.

(1) [1967] 2 A.C. 187.

(2) [1960] 3 All E.R. 161.