HKSAR v. Wong Hon Sum

CACC 504/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 504 OF 2003

(ON APPEAL FROM HCCC 97 of 2003)

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Before: Hon Stuart-Moore VP, Gall and Lugar-Mawson JJ

Date of Hearing: 6 January 2005

Date of Judgment: 6 January 2005

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J U D G M E N T

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

1.On 26 November 2003, the applicant was convicted of murder and sentenced to life imprisonment following a trial before Jackson J and a jury.  He now seeks leave to appeal against conviction.  Mr Adams is instructed to act on the applicant’s behalf but he has indicated, perfectly properly, that he is not able to advance any grounds of appeal.

2.This case concerns a brutal attack on 5 January 2002 upon Wong Chi-shing (the deceased) who was chopped to death on a public pavement near a café in Tuen Mun.  The perpetrators were armed with large knives and were hooded to conceal their identities.  After the killing, three knives with handles covered in bandages, presumably to prevent fingerprints being found on them, together with a jacket and a black hood, were discovered in a litter bin in the vicinity.  Later, forensic examination revealed that the knives were stained with blood from the deceased, and a bandage on one of the knives and the left cuff of the jacket bore traces of the applicant’s DNA.

3.The deceased died from multiple chop wounds to the chest, three of which were particularly serious.

4.Eleven months later, the applicant was arrested.  He admitted that he had been present and masked at the scene of the attack, and had carried the knife on which his DNA had been found.  In interview, the applicant said that he had seen three others carry out the attack but he denied playing any part in it.

5.The issues at trial were succinctly expressed by the judge in these terms:

“… did the defendant himself use a knife to strike or to chop the deceased?  And if he did do that, what was his intention at that time?  Was it to kill the deceased or to do him really serious harm?  If the defendant did not himself use a knife to strike or to chop the deceased, but if he was nevertheless acting in a joint enterprise with the attackers, knowing that they were going to chop the deceased and assisting or encouraging them in doing that, again, what was his intention at that time?  Was it to kill the deceased or do him really serious harm?

Members of the jury, if the defendant did not himself chop the deceased with a knife and if he was not part of a joint enterprise with others to do so, then he is not guilty of the offence of murder and nor is he guilty of the lesser offence of manslaughter which I will tell you about later.  In those circumstances, he is guilty of nothing.  But if the defendant himself chopped the deceased, or if he assisted or encouraged the others to do so and, in consequence of that chopping, the deceased died, and if the defendant at that time intended that the deceased should be killed or really seriously harmed, then he, the defendant, is guilty of the offence of murder.

On the other hand, if the defendant himself chopped the deceased or if he assisted or encouraged others to do so with the consequence that the deceased died but the defendant, at that time, did not intend that the deceased should be killed or really seriously harmed, then he is not guilty of murder but he may be guilty of the less serious offence of manslaughter.”  (Appeal bundle pp. 4-5)

6.The applicant gave evidence at his trial, effectively saying that he had been in the wrong place at the wrong time.  He maintained that, while he knew “something bad was going to happen”, he had not known that the men who killed the deceased were going to attack with such savagery.  He accepted in cross-examination, however, that he had, while hooded, chased the deceased with a knife and that he had known the deceased could die if major organs of the deceased’s body were chopped.  The applicant was unable to explain the blood patterns found on the knife he had allegedly carried but he maintained that the attack was carried out by the others with whom he had chased the deceased.

7.The applicant did not put forward any written grounds of appeal before this hearing.  In court today, however, the applicant raised an issue which was never mentioned at trial concerning the knife, Exhibit 3, which was produced as the knife wielded by the applicant.  If there had been anything in the point, to the effect that the knife produced was not the one he had held, it would have been dealt with before.  In fact, when the applicant was asked about the knives in cross-examination, there was the following exchange between the applicant and counsel, after counsel had shown all the recovered knives to the applicant: 

“Q.    Those were the knives, weren’t they, that were used?

A.    At that time, they were bandaged.

Q.    You agree those were the knives?

A.    Yes, I do.

Q.    Yes.  And you agree that Exhibit 3 was your knife?

A.    I don’t know.

Q.    The knife upon which the bandage onthe handle had your DNA.  That was your knife, wasn’t it?

A.    I’m not clear.

Q.    But you will accept that one of those knives was yours?

A.    Yes, I do.

Q.    Your knife had a bandage on the handle?

A.    Yes.

Q.    And your three associates had identical knives with bandages on the handle?

A.    I think so.”  (Appeal bundle pp. 267-268)

There is no substance to the point now raised by the applicant or in any of the other matters to which he referred.

8.It is apparent from the summing up that the directions given by the judge on all relevant aspects of the law applicable to the case were properly given and that the facts were summarised in a fair and balanced way.

9.There is nothing which causes us to say that the verdict was unsafe or unsatisfactory.  On the contrary, the applicant faced overwhelming evidence of guilt.

10.The application must, accordingly, be dismissed.

Mr D.G. Saw, SC, DDPP and Ms Olivia Tsang, GC, of the Department of Justice, for the Respondent.

Mr Nicholas E.W. Adams, instructed by the Director of Legal Aid, for the Applicant.