Choi Chi Hung and Another v. The Queen

CACC000451/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 451 OF 1975

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 5th August 1975.

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JUDGMENT

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Huggins, J.:

1. These two Appellants were jointly indicted on a charge of murder and a charge of robbery. The second Appellant was acquitted of murder but the first Appellant was convicted of murder and both were convicted of robbery.

2. The two offences were alleged to have taken place within a short time of each other on the same night. The first offence involved an attack on a man who was carrying a tape recorder. He was attacked, he was prodded with the handle of a knife and his property was taken from him. The two robbers then made off and they saw a young couple, whom they followed - obviously with the intent of robbing them also. They followed them to a lift and when the couple got in, the two robbers followed and one of them held the doors of the lift open. The witnesses did not entirely agree as to exactly what was said, but it is clear that the young man, who was in fact a policeman, challenged these two men and he and his girl-friend got out of the lift. He, at some point, revealed his identity to the two robbers who were, as it would seem, about to make off, having decided not to pursue a robbery on this occasion, but the evidence indicates that they then returned on hearing that this was a police officer. The first Appellant made a statement in which he said that he drew a knife with his left hand, passed it behind his back into his right hand, and it is clear that it was he who then plunged the knife into the young man's stomach, causing a wound from which he died.

3. The case for the first Appellant on the murder charge has been put by Mr. Mayne, as it always is, succinctly and with great clarity. He contends that the learned judge made an error at first in his summing-up by failing to direct the jury that a verdict of manslaughter was open to them, and that, when the matter was drawn to the judge's attention at the end of his summing-up, he gave a direction which was insufficient.

4. We have very grave doubt whether it was incumbent on the learned judge to direct the jury at all as to manslaughter. It is true that the first Appellant in a statement did say "It was not my intention to kill him". It is further true that the fact that the first Appellant, after having inflicted the fatal wound, struck the Deceased two further heavy blows is to some extent offset by his own statement to the effect that having withdrawn the knife he panicked. Nevertheless, we find it difficult to believe that any jury could possibly have come to the conclusion on the evidence in this case that the Appellant did not intend to cause grievous bodily harm even though he may not have intended to kill. Moreover, we are satisfied that the direction which was in due course given by the judge was adequate to inform the jury of the possibility of a verdict of Not guilty of murder but Guilty of manslaughter and of the circumstances in which such a verdict could be returned. The learned judge was entitled to express his own view and to express his own view very firmly - which he did. Mr. Mayne has really argued the two grounds of appeal as one, because it cannot seriously be said that the learned judge failed to direct the jury sufficiently "on the definition of 'intention to cause grievous bodily harm'": he did tell them that grievous bodily harm meant some really serious hurt, which was entirely correct, and in our view what he told the jury was adequate. However, as we have said we think that in the present case there could be no possible doubt that this was a deliberate attack on this young man with intent to do at least grievous bodily harm. Therefore, the first Appellant's application for leave to appeal against conviction is dismissed.

5. As to the sentence on the robbery charge, we have some anxiety. It is important in a case of this kind to ensure that one's mind is kept free from prejudice by the fact that the two Appellants were charged with murder, and one of them convicted. The robbery must be considered entirely separately. There was some argument as to the use of the knife - and whether or not there was in fact a knife. No doubt the evidence which now has been drawn to our attention does show that the victim was convinced that he was being threatened with a knife. However, he was merely prodded with the handle of it and not with the blade. That is some mitigation. Although, as we have said before, any robbery in which the victim is either aware or suspects the existence of a knife is obviously put in fear, and crimes of that kind cannot be treated otherwise than as very serious. Nevertheless, we think that had this charge stood alone it is unlikely that the judge would have passed a sentence of six years' imprisonment: this is considerably more than is normally given for this type of offence where no actual violence of a serious nature with a weapon is used. There is another factor as regards the first Appellant. He had already been sentenced to five and a half years' imprisonment in respect of a number of other offences. Those offences were extremely serious, involving an attack on a woman, forcing entry into her house, blackmailing and robbing. The sentence in that case was appealed to this Court and was confirmed. Nevertheless, to add a sentence of six years to one of five and a half years - for these sentences are to run consecutively - makes a long sentence which in our view is not justified. We think that the proper course in the case of the first Appellant is to substitute for the sentence of six years' imprisonment one of four and a half years' imprisonment.

6. Turning then to the second Appellant we see no reason whatever to interfere with the conviction. The second Appellant suggested that there was some doubt about the identification of him. We find no justification for that.

7. As to the sentence we have been in two minds. The Appellant was sentenced to four and a half years' imprisonment, as against the six imposed on the first Appellant, and, though it is arguable that the sentence of four and a half years' imprisonment, whilst on the high side, might by some be considered as not manifestly excessive, yet we think that it is desirable to maintain the distinction between these Appellants which the learned judge thought was appropriate. By reason of the offences for which the first Appellant was sentenced to five and a half years' imprisonment he has by far the worst record. Apart from that sentence there was not a great deal to choose between them. The second Appellant has been in trouble since the age of twelve, but we are impressed by the fact that despite two convictions for robbery and other various offences he has been to prison only once - and then for only six months. In all the circumstances we think that justice will be done if we substitute for a sentence of four and a half years' imprisonment one of three and a half years' imprisonment, and we so order.

5th August 1975.

Representation: