Lau Yat Keung Alias Keung Chai and Others v. The Queen

CACC000430/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 430 OF 1971

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Coram: Rigby, C.J., Huggins and Pickering, JJ.

Date of Judgment:

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JUDGMENT

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1. The four Applicants were indicted jointly on a charge of murder and were found guilty by the jury. They were further charged, jointly with another young man who has not applied to this court, with wounding with intent to do grievous bodily harm. The 1st and 4th Applicants and the other accused man were found guilty on the second charge but the 2nd and 3rd Applicants were acquitted. The present applications relate only to the convictions for murder.

2. The case for the Crown was that the Accused were members of a gang of 6 to 8 youths which attacked a party consisting of three girls and three boys. The attack appears to have been a sequel to an incident at the Lai Chi Kok Amusement Park Ballroom at about 3.30 p.m. on 10th January, 1971. The three boys who were alleged to have been attacked, one of whom was the Deceased, were stewards of the Ballroom. The Deceased became involved in a dispute over non-payment of admission charges and in the course of this dispute the victim in the wounding charge, LO Man-hung, slapped the face of a young man named Ming Chai. The 2nd and 4th Applicants were among those present during the ensuing heated discussion when an apology to Ming Chai was demanded. The discussion was finally broken up by another steward, LO Shing, but not before someone (possibly the 4th Applicant) had advised LO Man-hung to be careful in future.

3. The three stewards - the Deceased, LO Man-hung and LO Shing - left the ballroom at about 6.00 p.m. There was some disagreement between the witnesses as to the precise time and as to precisely who joined them at any particular time or place, but eventually these three came to the Golden Theatre and from there set off for LO Man-hung's home in the Shek Kip Mei Resettlement Estate in the company of three girls. As they were walking in Pak Tin Street at about 6.30 p.m. they were suddenly attacked by six to eight youths, some of whom were wielding knives. The Deceased was viciously stabbed there and then, while LO Shing was seized from behind and threatened with a knife but was not injured. LO Man-hung said that he was chopped once on the chest and then ran away. He further says, however, that he returned after he had gone some distance and that when he reached the junction of Berwick Street and Pak Tin Street he was again attacked. On this occasion he received a number of further cut wounds on the head, back and arms.

4. The evidence did not establish that each of the Applicants struck a fatal blow upon the Deceased or even that each of them was immediately concerned in the attack upon him. Only the 2nd, 3rd and 4th Applicants were alleged to have struck him and it is not known which wounds, if any, any one of them caused.

5. The defences of the various Applicants can be sufficiently stated in a few words. The 1st Applicant said he went to the scone for what was described as "a settlement talk", but he admitted that he thought it likely a fight would result if no settlement were reached. According to him when he got there he saw LO Man-hung and LO Shing chasing the 4th Defendant and trying to hit him: the 1st Applicant went forward to defend the 4th Defendant and himself came under attack: LO Man-hung was disarmed and knocked to the ground, where the 1st Applicant struck him with a wooden box and the 4th Applicant struck him with a knife. The 1st Applicant said that he did not see the Deceased at the scene. The 2nd Applicant said that he went to the scene quite by chance and that when he got there he saw a fight taking place: he saw the Deceased trying to stab the 3rd Applicant with a knife and as he knew both men he went up to try to keep them apart: in the process he himself was stabbed: he then saw an unknown stranger come up behind the Deceased and hit him: the Deceased and the 3rd Applicant were still fighting when he himself ran away, having taken no part in any assault. The 3rd Applicant also admitted having gone to a settlement talk and said that he met the 4th Defendant on the way and took him along as well. His account is that they found the Deceased and LO Man-hung talking in an aggressive manner to Ming Chai about the incident at the ballroom: the Deceased, LO Man-hung and others then produced knives and attacked Ming Chai and his friends: the Deceased chased Ming Chai and the 3rd Applicant followed, calling on the Deceased to stop: the Deceased rounded on him and he ran away: hearing a shout behind him he turned and saw the 2nd Applicant fall to the ground, after which Ming Chai suddenly chopped the Deceased, who dropped his knife on the ground: the 3rd Applicant picked it up to prevent the Deceased's recovering possession of it: the Deceased picked up a pole instead and started to hit him, be ting him to the ground: the 3rd Applicant tried to ward off the blows and eventually Ming Chai ran up and the Deceased ran away. The 3rd Applicant was not aware of having stabbed the Deceased during the attack on him by the Deceased. The 4th Applicant, also, said that he came upon the scene quite by chance: as he was going to the cinema he met the 1st Applicant and suddenly heard the 1st Applicant shout "Yick Chai, watch out": he then saw LO Man-hung running towards him with a knife: LO Man-hung was, however, disarmed before he could use the knife: the 1st applicant used the knife to chop LO Man-hung and the 4th Applicant ran away having played no part in any attack.

6. On behalf of the 1st Applicant, the 2nd Applicant  and the 4th Applicant only one ground of appeal was pursued at the hearing, namely that the learned judge did not specifically direct the jury to acquit if the explanations of these Applicants left them in doubt. Counsel relies on Murtagh v. Reg.⁽¹⁾, where the Court of Criminal Appeal said at p.83

"          Having regard to the evidence, it was pre-eminently a case where it was essential for the judge to make clear to the jury three possible positions in which the jury might find themselves, bearing in mind throughout that it was not for the accused to establish their innocence: that is to say (1) If they accepted the explanation of the accused, they must acquit. (2) Short of accepting that explanation, if it left them in doubt, they must acquit. (3) On consideration of the whole of the evidence they must be satisfied of the guilt of the accused of one or other of the crimes alleged against them."

In that case the learned trial judge dealt with the second alternative by using the expression "If you do not think it safe to reject the explanation of this accident put forward by the defendants, acquit them both". The Court was of opinion that the expression was equivocal and that it did not suffice for the purpose of making plain to a jury of laymen what the onus of proof was: it might be understood by them to mean no more than "If you feel you can accept ...". The questions we have to decide are (1) whether this was a case where it was necessary for the learned judge to refer expressly to the three alternatives set out in the passage cited and, if so, (2) whether the words used by the learned judge sufficiently placed the second alternative before the jury. In Murtagh the prosecution invited the jury to draw the inference from all the circumstances that the collision between the accused's car and the deceased was not an accident but a deliberate assault with intent to do him at least grievous bodily harm; The physical facts were not in dispute and it was that which made it so important that the jury should be left in no doubt that the burden was on the prosecution to negative the possibility that the collision was an accident. In the present case the physical facts are very much in dispute, for the Applicants contended that they were the attacked rather than the attackers. There is, therefore, a clear distinction between this case and Murtagh.

7. It does not, of course, follow that the judge could be any less careful in ensuring that the jury understood where lay the burden of proof: it merely means that it might be possible to direct them adequately without adopting the approach indicated in the passage cited. Where the physical facts are in dispute the defence does not turn solely upon the accused's "explanation" of established facts. So, in the present case, the burden was on the prosecution to show that their version of the facts was true. The learned judge gave a very clear general direction about half way through his summing-up when he said

"None of these five people has to prove anything. There is no onus of proof on any of them. You have to look at all the evidence and then decide if the case against all or any is proved beyond reasonable doubt".

We have read the summing-up as a whole and find nothing in it which in any way detracts from this clear direction. On the contrary, the judge's closing words were

"Finally, gentlemen, I would remind you once again of the onus of proof. Onus of proof, both these charges, remains on the Crown throughout. The case must be proved to you beyond reasonable doubt, beyond what you, as reasonable people, would regard as a doubt".

In our view it was made plain to the jury that if they thought there was a possibility that the Applicants' story was true, and, consequently, that the prosecution's story was not true, they should acquit. Accordingly we see no reason to grant the leave sought by the 1st Applicant, the 2nd Applicant and the 4th Applicant.

8. The first point taken on behalf of the 3rd Applicant is that the learned judge expressly withdrew the defences of self-defence and provocation from the jury and it is argued that he was wrong in so doing. The reasoning of the learned judge was that these defences could not arise in a case where there was no evidence who struck the fatal blow and where the guilt of the accused could be established only by showing a common design to kill or to cause grievous bodily harm. As we understood him, counsel for this Applicant did not seek to challenge this approach but he contended that as there was evidence that the 3rd Applicant stabbed the Deceased the jury might have inferred that he struck the fatal blow. Having regard to the evidence and to the way in which the case was left to the jury, we do not think that they could have come to that conclusion. From beginning to end they were told that unless they were satisfied that this Applicant was one of a group which attacked the Deceased with a common intent to do him at least grievous bodily harm and that the death resulted from the planned attack they must acquit. There was no evidence which could have led them to suspect that, whoever the man was who struck the fatal blow, he had been provoked into striking that blow. It was, perhaps, unfortunate that the learned judge said there was no room for the defence of self-defence, but he made it clear what he meant by that when he said

"We don't know that any one of the accused caused a fatal blow. Not knowing that they caused a fatal blow they don't have to rely on self-defence".

Of course, if whoever struck the fatal blow was acting in self-defence, the other group having attacked the Applicants, that person could have pleaded justification, but if his plea had been well founded then the death could not have been the result of any common intent and the self-defence of the killer could have negatived the guilt of the others in his own group even though they had originally planned to be the attackers. We think that in the circumstances of the present case it was unnecessary for the judge to give a detailed direction on the law of self-defence. He left the case to the jury on the broad basis that if they were not satisfied this Applicant was among the attackers but thought he might have been attacked when going to mediate he must be acquitted and we see no reason to disapprove that approach.

9. The only other ground of appeal which was pursued by counsel for the 3rd Applicant in his argument was that the verdicts against his client of guilty on the murder charge and not guilty on the wounding charge were inconsistent. The contention was that any evidence which might be taken to establish a common intent to attack the Deceased necessarily established also a common intent to attack LO Man-hung. We do not agree. The jury may have concluded that LO Man-hung was not wounded until he returned to the scene after having run away and that what then took place was not in execution of the original common intent. When the learned judge said that "for all intents and purposes, as far as the 3rd accused is concerned, the wounding charge stands or falls with the murder charge" that was not strictly accurate. Just before this the judge had said:

"If you were to find him not guilty in respect of the murder charge then ... you could not convict him on the wounding charge unless you are satisfied that he had a common intent with somebody to wound LO Man-hung".

It was in relation to this that the judge made the additional comment and in the event their verdicts show that the jury were not misled.

10. For these reasons the applications of all four Applicants are dismissed.

Representation:

W. Wong (K.Y. Woo & Co.) assigned for 1st, 2nd & 4th Appellants.

H. Hu (P. Poon & Co.) assigned for 3rd Appellant.

Marshall, C.C. for Crown/Respondent.

(1) (1955) 39 Cr. App. R. 72.