HKSAR v. Ho Kin Sang

CACC000449/1999

CACC 449/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 449 OF 1999

(ON APPEAL FROM HCCC 432 OF 1998)

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Coram: Hon Stuart-Moore VP, Mayo VP and Keith JA

Date of Hearing: 1 June 2000

Date of Judgment: 1 June 2000

Date of Reasons for Judgment: 19 June 2000

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REASONS FOR JUDGMENT

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 11 August 1999, following a trial in the Court of First Instance before Nguyen J and a jury, the Applicant was convicted of manslaughter (by way of alternative to murder in count 1) and wounding with intent (count 2). The Applicant was sentenced on 13 August 1999 to concurrent terms of six years and three years' imprisonment respectively. He now seeks leave to appeal against his convictions. This application largely arises from what is agreed to have been the inconsistency in the two verdicts returned by the jury.

Prosecution's case

2. The prosecution's case was essentially straightforward. It was alleged that the Applicant was present and participating in a joint attack at karaoke premises on Lam Shing-ho, the deceased, and another person, Chan Chi-wai (PW1), in the deceased's group (the victim in count 2). The Applicant played an active role by kicking the deceased in an attack where one of two others wielding knives caused the fatal injury to the deceased's heart. The attack took place in the early hours of 21 May 1997. This incident followed earlier confrontations between two groups in the karaoke premises.

3. In the light of the particular grounds advanced in this application, it is not necessary to rehearse any of the evidence in any great detail. It suffices to say that PW3, a PR girl at the karaoke, saw the deceased being kicked by 'Ah Ching' which caused the deceased to lose his balance. 'Ah Ching' then punched the deceased and he fell. PW3 next saw 'Lui Man' chop the deceased on the left side of his body. After that, she saw three men kicking the deceased's head. She testified that the Applicant was the first and 'Chi Ho' was the second to do so. She did not know who the third man was, but they kicked the deceased many times with great force. She said that 'Lui Man' then chopped the deceased three more times. PW1 was also badly wounded but it was not alleged that the Applicant played any physical part in the attack upon him.

Summing up

4. In summing up to the jury, the judge emphasised the need for the jury to consider his directions with care when determining to what extent, if any, the Applicant, who was tried alone, was a party to a joint enterprise with the others. At one stage, dealing with count 1, he directed the jury in these terms:

"It is for you, members of the jury, to decide whether the acts which caused the death, and Chan Chi-wai being wounded, were part of the joint enterprise, namely the acts of the two persons with the knives, whether that was part of the joint enterprise or whether they were or may have been unauthorised acts and therefore outside the scope of the joint enterprise. Now, I hope that is not too legalistic and confusing for you. To put it another way, members of the jury, if there was no agreement involving the accused, then what the two persons Chi Ho and Lui Man did would not be the responsibility of the accused because the accused was not part of any joint agreement or a joint plan. If there was a joint agreement involving the accused and the joint agreement was, for instance, simply to assault the two victims, assault as opposed to actually causing them very serious bodily harm, you know, a punch or a slap, or if the joint agreement was simply to scare them so that they would go back to their own room, if that was the extent of the agreement which involves the accused personally, then when Lui Man and Chi Ho produced the knives and chopped the deceased and Chan Chi-wai, that would have been beyond what was agreed and that would have been an unauthorised act. If the accused was not aware - if the accused was not a party to the agreement to use knives, then again, he is not liable.

If there was no agreement beforehand, but the accused realises or knows two things: (a) that the two assailants had knives; and (b) that the two assailants would or might use the knives on the two victims to at least cause really serious bodily harm, if the accused has that knowledge or that realisation and still participates in the joint enterprise by doing what he is alleged to have done, namely kicking the deceased, then he can be guilty of murder if the intent by the two assailants was to kill or to cause grievous bodily harm.

If the intent of the two assailants was not to kill or to cause grievous bodily harm, but simply to inflict some injury, then if the accused was a party to an agreement with them to cause some injury, then in law he can be guilty of manslaughter. If he is not a party to kill or to cause grievous bodily harm, or to inflict some harm, then he is not guilty of either murder or manslaughter."

5. The Applicant's acquittal on the charge of murder but his conviction of manslaughter plainly indicates that, on count 1, the jury was not satisfied the Applicant had joined in the assault upon the deceased having realised or contemplated as a real risk that those persons who were from his group, who he was admittedly aware were carrying knives, might use them to inflict grievous bodily harm upon the deceased.

6. The judge's later directions as to manslaughter were as follows:

"Manslaughter would only be appropriate if you find that: (a) He was a party to the agreement to cause some harm, even though not serious harm to the deceased. And for that to be proved by the prosecution they will have to show that the defendant knew that the one assailant was armed or would be armed with a knife.

And: (b) That that defendant must have known or realised that that assailant might or would use the knife to cause some harm to the deceased.

So if his statement of knowledge is that the assailant might use the knife to cause some harm and not serious bodily harm or to cause death, then the result is he is guilty of manslaughter. So that is how manslaughter is appropriate in this case."

7. The judge also gave directions to the jury inviting their careful consideration of the stage at which the Applicant joined the assault on the deceased. This was necessary because it was possible for the jury to have found that the Applicant had kicked the deceased at a time before the knives were used, based upon the evidence given by PW1 which differed from PW3's account.

8. Had the matter rested there, and subject to what Mr McNamara has raised in his second ground of appeal on behalf of the Applicant, there could be no criticism of the verdict which the jury returned in respect of manslaughter. Furthermore, we feel bound to remark that there was no need whatever for count 2 to have been included in the indictment relating to the wounding of PW1. Count 2 did not carry the matter any further against the Applicant either in terms of the facts or sentence. It represented an added and unnecessary complication to the indictment. If the Applicant was convicted on count 1, count 2 added nothing to his culpability. If the Applicant was acquitted altogether on count 1, he would also have had to be acquitted on count 2.

9. In the result, following considerable confusion, the jury ultimately found the Applicant guilty on count 2 of wounding with intent a short while after they had convicted him of manslaughter by reason of lack of intent.

Inconsistent verdicts

10. Mr McNamara, not surprisingly, submitted in his first ground of appeal that the jury's verdicts on counts 1 and 2 were inconsistent. Mr Saw did not contend otherwise. The issue was whether, as Mr McNamara submitted, neither of the verdicts could be allowed to stand because the issues for the jury were exactly the same in respect of each. In this ground of appeal, Mr McNamara concisely put his argument in this way:

"(c) the jury must have found that he was acting with the others in a joint enterprise as, if the finding was otherwise, the applicant should have been acquitted of both counts;

(d) the verdict of the jury could only mean it found that the applicant had no intent to do grievous bodily harm to the victim of the first count (murder);

(e) but had the intent do inflict that harm on the victim of the 2nd count (wounding with intent);

(f) the conviction on count 2 is therefore inconsistent with the conviction for manslaughter on count 1 and as a matter of law the convictions cannot stand."

11. Subject to what was submitted in ground 2, it has not been suggested that the judge misdirected the jury as to the law relating to manslaughter. If that count had stood alone, there was nothing which occurred in the trial to upset the conviction on count 1. However, for the reasons which follow, we are satisfied that it is the conviction for wounding with intent on count 2 which has to be criticised because no reasonable jury who had applied their minds to the facts in the case could, having found that the prosecution had failed to establish the requisite foresight of consequences to establish murder, have concluded there was such foresight on count 2. In respect of this count, in circumstances it will be necessary to refer to later, the judge had directed the jury as to the lesser alternative of unlawful wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212, upon which it was open to them to convict.

12. The jury, having retired to consider their verdicts at 10.30 a.m., returned at 4.22 p.m. with a verdict of guilty to manslaughter on count 1. The jury was then asked for their verdict on count 2 and it is apparent from the foreman's reply that they had concluded that if they convicted the Applicant on count 1 they were not required to return any verdict on count 2. More specifically, the answer given by the foreman, when asked if they were unable to reach a verdict on the second count, was in these terms:

"We think that if the accused is ... that the verdict against the accused for the first one is guilty, that mean that naturally he will be guilty for the second count".

13. It is obvious from this answer that the jury were satisfied that the second assault was part of the joint enterprise to which the Applicant had attached himself. However, as to intent, the jury by their verdict on count 1 had already clearly demonstrated that they were not satisfied that the Applicant had intended or contemplated the consequences of what was done by the others in his group who bore responsibility for physically inflicting very serious bodily injury to the deceased.

14. Following the foreman's answer, the jury were given some further directions including a reminder of the alternative verdict in respect of unlawful wounding which, at trial, were not criticised and the jury retired once more at 4.26 p.m. Fifteen minutes later they convicted of wounding with intent.

15. Whatever the reason for the inconsistency in these verdicts, it is apparent the jury was satisfied that the Applicant was a party to the joint enterprise attack on the victims of both counts. However, in the light of the verdict already recorded by the jury on count 1, it was then incumbent upon the judge to have directed the jury to acquit the Applicant of the section 17 offence of wounding with intent and to consider only whether unlawful wounding had been made out. Indeed, it should have been made clear to the jury earlier in the summing up that if they acquitted the Applicant of murder they should also acquit him of wounding with intent. Unfortunately, this was never done. Only in this way, on the particular facts of this case, could consistency in the verdicts have been assured.

16. The mere fact, as was said in R v Cheung Man-to (1987) 2 HKC 261, that a jury has returned inconsistent verdicts, convicting on some counts and acquitting on others, does not necessarily lead to a conclusion that the Court of Appeal will have to quash all the convictions. The situation which has arisen in this case was the subject of helpful analysis in R v McKechnie, Gibbons and Dixon (1992) 94 Cr App R 51 at 61 where Auld J said:

"In our view, it does not necessarily follow that inconsistency of verdicts requiring intervention by the court should result in the quashing of all guilty verdicts on one side or the other of the inconsistency. Where one verdict is readily explicable from the way in which the prosecution have put the case, from the evidence and from a proper direction from the judge on the law and the facts, and where the second may well be attributable to the jury's attempt to do justice on the facts regardless of the constraints of the charges or to a failure by the judge to give adequate directions as to the consequences for the second verdict of a possible conclusion on the first, the Court could properly form the view that only the second verdict should be quashed."

17. We have concluded that the position in the present case enables us to say that, while it is common ground that the verdicts were inconsistent, a substitution of a conviction on count 2 for unlawful wounding contrary to section 19 of the Offences Against the Person Ordinance will plainly cure the inconsistency without any injustice to the Applicant.

Manslaughter as an alternative to murder

18. Mr McNamara's second ground of appeal is within a short compass. He submitted that on the facts of this case, it was not open to the judge to leave to the jury the option of finding the Applicant guilty of manslaughter on the basis of lack of intent. He submitted that as there was no other ground for finding the Applicant guilty of manslaughter, the verdict was wrong in law.

19. There is, in our judgment, no merit to this ground. Mr McNamara also represented the Applicant at trial. He took no exception to the summing up during the trial and, as Mr Saw, SC, on behalf of the Respondent observed, at the conclusion of the first day of the judge's summing up, both counsel in the trial were provided with a written outline of the trial judge's proposed directions on murder and manslaughter that were intended for the use of the jury. Before the proceedings were resumed on the following day, Mr McNamara was specifically asked if he wished to say anything and he candidly replied that he thought they were "appropriate". And so they were. There was justification on two grounds for the judge to have left manslaughter by reason of lack of intent. The first of these related to the timing of the Applicant's assault on the deceased by kicking him. It was possible, as we have previously said, for the jury to have found that the Applicant kicked the deceased prior to the use of knives, although there was other evidence from PW3 that he did so after the first use of a knife. Additionally, the Applicant had been interviewed and in one of his replies, he had said in effect that he believed the knives were only produced in order to "scare" the other group.

Conclusion

20. Accordingly, for the reasons we have set out, we allowed the application for leave to appeal at the conclusion of the hearing on the last occasion. We indicated that we would treat the hearing as the appeal and we quashed the conviction on count 2 and substituted a conviction for unlawful wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212. The general particulars of this count, omitting reference to intent, remain the same.

21. Having invited Mr McNamara to address us on the question of sentence, he indicated that he had no submissions he wished to make. Nevertheless, we feel that the sentence of three years' imprisonment which the judge imposed on the second count should be substituted, in the light of the course we have taken, with a concurrent sentence of two years' imprisonment. The overall sentence of six years' imprisonment being served by the Applicant is not, however, affected.

Criticisms of the summing up

22. Before leaving this appeal altogether, we observe that in the written directions which the judge handed to the jury in the course of his summing up, these were not entirely tailored to the case under consideration by the jury. The legal directions as to murder contained a passage relating to provocation which was never before the jury as an issue in the trial. The judge pointed this out and said that the jury were to ignore the offending passage.

23. We do not consider that it was sufficient or desirable for the judge simply to have told the jury to ignore the words relating to provocation. We emphasise once more that when legal directions are given to a jury, these should be specifically tailored to the circumstances of the case before the jury without the added complication of directions which have no relevance to the case in hand.

24. Further, we observe with some dismay that the judge did not discuss his intended directions to the jury concerning the less serious alternative offences which were open to them on both counts before the summing up commenced. This is a simple precaution and would have obviated the problem which was later to develop in the trial. Leaving aside the fact that in our judgment count 2 should never have been before the jury, the first discussion the judge had with counsel about the alternative verdict relating to count 2 took place during a break early in the summing up itself. The appeal bundle at page 16 reveals this dialogue with counsel:

"(Prosecuting counsel): .... in relation to count 2, because it is wounding 17, the other common law alternative, like Section 19, would, of course, be open.

Court: I'm not going to leave Section 19 on the 2nd count.

(Prosecuting counsel): No, I don't invite your Lordship to do so, because I have considered it very practically, in fact, even if he is convicted, for the time he is in custody, obviously, there is not much ...

Court: No, I think that, plus the fact that if he is acquitted of Section 17, he should be acquitted of everything, because he wasn't the person who wounded Chan Chi-wai.

(Prosecuting counsel): I agree with you, my Lord. In fact, I think on average, that count shouldn't be considered."

25. Inexplicably, as we have indicated, the judge without saying to counsel why he had changed his mind, later went on to direct the jury as to the alternative under section 19. Mr McNamara very properly made no complaint about this because it was the correct course for the judge to have taken despite his earlier stance. It happens, therefore, that in the present circumstances no harm was done.

26. This nevertheless provides an illustration of the desirability of a trial judge discussing openly with counsel how he intends to direct the jury in the course of his summing up when there is any doubt as to what it is proper to leave to them for their consideration. It is often important for counsel to know, before they make their speeches, what issues they should address. If alternative verdicts are only raised for the first time in the summing up, this can cause injustice. Having said this, there is also a responsibility which rests on the shoulders of trial counsel to raise issues such as this with the judge where they require guidance as to how the judge proposes to sum up the case.

Representation:

Mr D.G. Saw, SC, DDPP and Mr Gary Lam, GC, of the Department of Justice, for the Respondent.

Mr John McNamara, instructed by the Director of Legal Aid, for the Applicant.