Tang Chi-keung @ Sam Tai and Others v. The Queen
Read the full judgment text of CACC 471/1977 on BabelCite. This Court of Appeal judgment.
1. The five defendants were found guilty of the murder of one Lau Wah-hing and in addition of four counts of wounding with intent contrary to section 17 of the Offences against the Persons Ordinance. Each of these four counts dealt with one victim.
|
CACC000471/1977
Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 7th December, 1977. ----------------- JUDGMENT ----------------- 1. The five defendants were found guilty of the murder of one Lau Wah-hing and in addition of four counts of wounding with intent contrary to section 17 of the Offences against the Persons Ordinance. Each of these four counts dealt with one victim. 2. On July 19th, 1973, that is to say more than four years ago, a party of ten or more men armed with knives invaded with knives invaded certain premises in Wanchai known as the Cactus Apartment. These premises are situated on the fifth floor of Sin Chong House, 123-125 Leighton Road. 3. The invading party set about the persons who were present on the premises and wounded at least five people, one of whom was Lau Wah-hing. 4. This man was severely wounded and tried to escape through a bathroom window. In so doing he fell to the street and was killed. 5. The background to this case is the rivalry between two triad societies, the 14K and the Wo Hop To. The defendants are all members of the 14K Triad Society and the purpose of the attack in the Cactus Apartment was revenge for an earlier attack which the 14K Society claim had been made on certain of their members by members of the Wo Hop To Triad Society, The invading party thought that the persons found in the apartment were members of the Wo Hop To Society but no evidence to prove this was produced at the trial and the witnesses who were the victims of the wounding charge denied that they were triad members. 6. The defendants were tried with two other persons who were acquitted. Yet another person, Wong Yick Nin, was also charged. He was granted immunity from prosecution by the Crown, and was called the principal witness for the prosecution, One of the two persons who was acquitted, Kwok Cheung, described in his evidence the previous incident when members of the Wo Hop To attacked some 14K triad members, including himself. This occurred in June 1973, about one month before the incident at the Cactus Apartment, Kwok Cheung himself and one Law Hin, (the younger brother of the third defendant) and four other members of the 14K Triad Society were all injured, Kwok Cheung and Law Hin seriously. 7. The case for the Crown, in the present appeal was that a meeting of the 14K Society was held on the night of July 18th, 1973 at the home of the third defendant. All the defendants now before the court were present together with other members of the 14K Society. The purpose of the meeting was to organize an attack on the Wo Hop To Society in revenge for the previous incident in June. 8. After some discussion a party of those who were present boarded a public light bus which was driven by Liu Kam, who was called as a witness. The first, third and fourth defendants left in the public light bus. The third and seventh defendants remained at the house of the third defendant. This is in the New Territories. 9. The public light bus was then driven under the harbour to the Cactus Apartment arriving there in the early hours of the morning of July 19th, 1973. Between leaving the house of the third defendant and arriving at the Cactus Apartment some knives were collected and distributed to the persons in the bus. There is a conflict of evidence as to the source of these knives but upon arrival at the Cactus Apartment each member of the attacking party was armed. 10. The door of the apartment was partially open so entrance was gained easily. One of the witnesses called by the prosecution stated that a member of the invading party asked whether a certain person was there and was told that he was not. Immediately after this, other people rushed in in two groups. They were all armed with knives. They began to chop those persons who were in the apartment at random. A scene of considerable confusion ensued and many persons in the apartment that it was a robbery. Another of the attacking party asked one of the inmates the well-known triad question "Where do you belong?" Apart from this there was no further attempt to discover whether the persons inside the apartment were members of a triad society or not. 11. Lau Wah-hing was in the bathroom at the time. He opened the door presumably to see what was happening and one of the invading party wounded him on the head with his knife. He retreated and later was found in the road having apparently attempted to escape through a window. He suffered cuts to his head and to his left and right arms. 12. No one actually saw him jump or climb out of the window but at least two other persons escaped that way and one of them saw him falling. 13. The case for the Crown falls into two parts. The case against the first, fifth and sixth defendants and the case against the third and seventh defendants. 14. The first, fifth and sixth defendants were all present at the meeting in the house of the third defendant. They boarded the public light bus and were among the group of armed persons who invaded the Cactus Apartment and wounded the persons who happened to be inside. The case against the third and seventh defendants is different. They were present at the meeting and took an active part in encouraging the proposed expedition but they were not present at the attack in the Cactus Apartment. 15. Briefly, the evidence against each defendant is as follows. The first defendant gave certain orders to the other members of the invading party including telling Wong Yick-nin to act as guard at the main entrance to the apartment. At the meeting, he helped to choose the persons who were to form the attacking party. 16. The fifth defendant busied himself with distributing knives to the members of the attacking party when the bus was being driven to the apartment. And he was seen to enter that apartment. In his summing-up the trial judge made a slip when dealing with the case against this defendant. He said that a witness called Man Chi-wai testified that this defendant came to the meeting at the house of the third defendant on July 18th, 1973 but that he had not been to that house before, when in fact the witness did state that he had seen this defendant at the house of the third defendant before but not at night. We do not consider this piece of evidence to be of much importance still less does it amount to a fatal misdirection to the jury. The case against the fifth defendant depends upon whether he was present at the Cactus Apartment taking part in the attack. The evidence was that he played only a passive role at the meeting. 17. The case against the sixth defendant was that he was one of the attacking party. He armed himself with a knife and was identified as being at the Cactus Apartment. This defendant gave evidence on his own behalf, indeed he was the only one of the present appellants to go into the witness box. He admitted being a member of the 14K Society and his presence at the fatal meeting for a few minutes but denied taking part in the attack. 18. The case against the third defendant was that he was the head of the local group of the 14K Triad Society at Tsuen Wan. His brother had been involved in the previous attack by the Wo Hop To and also incidentally his, the third defendant's, car had then been damaged. It was this defendant who played a prominent part at the meeting in his home encouraging those present to go and avenge the earlier incident. Though he did not go on the attack there was evidence that he expressed great satisfaction when he heard that one man died as the result of the attack. 19. And finally, the evidence against the seventh defendant was that he was "the Protector" in the 14K Society of the witness Man Chi-wan. He was present at the fatal meeting and made a positive contribution to its deliberations. He also helped to make the arrangements for the hire of the bus which was used to take the party to the Cactus Apartment. However, he himself did not take part in the attack. 20. Since the principal evidence against each of the appellants came from Wong Yick-nin, Man Chi-wai and Liu Kam it was inevitable that the defence would make much of the allegation that all three were accomplices and of the need for corroboration. Wong and Liu were self-confessed accomplices. Man, although given immunity, asserted that he did not participate in the crimes charged, but it has been contended that he was on his own evidence an accomplice and, consequently, that he could not only not corroborate the other two but himself required corroboration. His evidence as to his own activities showed that he was present at the meeting at the third defendant's house and that at the third defendant's request he telephoned to Leung Wing-sang to invite him to join the meeting. From this it is argued that with knowledge of the planned attack he encouraged someone to come and take part. If that were correct it would have been right for the judge to direct the jury as a matter of law that Man was an accomplice. However, it was not correct: Man's evidence was that when he made the telephone call he did not know what it was all about. It would not have been surprising if the jury had disbelieved him as to that, but we think it was right for the judge (as he did) to leave the jury to decide whether he was an accomplice or not. 21. Then it is said that the jury could not make a fair decision on the point unless they were given a definition of an accomplice by the judge. The meaning of the word "accomplice" for this purpose was discussed at length in Davies v Director of Public Prosecutions(1), but there is nothing in the speeches in that case which lays down that a definition must be given to the jury in every case. The word has a natural and primary meaning which is known to everyone who understands the English language. When the question is whether a person was on the evidence particeps criminis a jury will not need to be told that a particeps criminis is an accomplice, and that was the position here. Where a witness may fall within category (2) or category (3) as described by Lord Simonds, L.C. at p.400 it would be necessary for the jury to explain that the word "accomplice" is not confined to persons in category (1), but that does not affect us in the present case. If Man Chi-wai was an accomplice at all it was because he was particeps criminis. It was made clear to the jury that it was not only those at the scene of the crime who could be convicted of the offences charged. 22. We think that the contention that the learned judge did not sufficiently warn the jury of the danger of convicting on the uncorroborated evidence of accomplices as entirely without foundation. He gave a very clear warning of the danger and explained the reason for that warning. He said nothing which detracted from the warning given. 23. One argument which ran as a thread through the whole of the submissions on behalf of the appellants was that Man Chi-wai's evidence was in itself so unreliable, and so inconsistent with the evidence of Wong Yick-nin and Liu Kam on many points, that the very basis of corroboration was missing, namely the confirmation of intrinsically credible evidence by independent evidence which was also intrinsically credible. It was for the jury to decide which parts of the evidence (if any) were credible and, while we readily accept, on a mere perusal of the record, that they must have been in great difficulty in deciding what to believe, we have come to the conclusion that we ought not to hold that the verdicts which they reached were unreasonable. 24. Although some of the Notices of Appeal complained that the appellants were convicted on the uncorroborated evidence of accomplices, none of them alleged a failure to direct the jury as to the possible corroboration provided by the evidence of Man Chi-wai if he were found not to be an accomplice. It was desirable that the judge should have given such a direction, but in all the circumstances of this case we do not think the omission was necessarily fatal. It seems to be conceded that there was evidence given by Man Chi-wai which was capable of amounting to corroboration in respect of each of the appellants other than the sixth and seventh defendants and there was no evidence given by Man which the jury were likely to treat as corroboration when it was not. Nothing which Man Chi-wai said could reasonably have been taken as corroborating the evidence of Wong Yick-nin against the sixth defendant: indeed, much was made during the argument of the almost complete inconsistency of the two witnesses' evidence. The conviction of the seventh defendant depended substantially upon the evidence of Man Chi-wai himself and the jury is not likely to have been misled into believing that Wong Yick-nin and Liu Kam had said anything which would justify his conviction. 25. A ground of appeal common to the first and sixth defendants was that the trial judge had failed to direct the jury adequately as to identification, in particular in the manner contemplated in Turnbull v. The Queen(2). Since the advent of Turnbull it has become fashionable for counsel to invoke that case before this court whenever identification is remotely in question. No doubt, instances will arise where such invocation will constitute a valid and successful ground of appeal but Turnbull should not be regarded as an open season for attacks upon identification. In the case of Manit Phromanonta v. The Queen (Criminal Appeal 152 of 1977) this court pointed out that the counsels of perfection contained in the Turnbull case are only guidelines and that Lord Widgery, C.J. whilst warning that a failure to follow the guidelines was likely to result in a conviction being quashed, was careful to restrict himself to saying only that such failure would necessarily so result if, in the judgment of the Court of Appeal in England, the verdict, on all the evidence was either unsatisfactory or unsafe. Later in Chik Shui-wai v. The Queen (Criminal Appeal 1220 of 1976) this court said:-
26. It is only when failure to follow the guidelines in Turnbull raises a reasonable expectation that this court may well, as a result, find the conviction unsafe or unsatisfactory that that case should be invoked. Where, as in the present instance, there is evidence over and above that of the "fleeting glimpse" type, evidence which comes from witnesses who previously knew the accused whom they identify and who had them under observation for a lengthy period in different locations, the invocation of the Turnbull guidelines is a stultifying exercise. Had the identification of the first defendant come only from Mok Kwok-chuen, a victim of the chopper attack, this ground of appeal might well have succeeded in respect of the first defendant, but that evidence did not stand alone. Both the first and the sixth defendants were identified by Wong Yick-lin, an undoubted accomplice and Man Chi-wai in respect of whom the learned judge left the question of accomplice vel non to the jury. Both these witnesses knew both defendants and Man gave evidence of their presence at the meeting in Tsuen Wan which immediately preceded the attack upon the Cactus Apartment whilst Wong gave evidence not only of the meeting but also of travelling by minibus with (inter alia) these two defendants and of being with them when they all entered the Cactus Apartment armed with knives. It is clear that that evidence was accepted by the jury after very stringent warnings from the judge about discrepancies in the evidence of Wong, Man and Liu Kam, the driver of the minibus. 27. Man's evidence that at the Tsuen Wan meeting Leung Wing-sang told the sixth defendant to go home whereupon the sixth defendant left the meeting, went no further than that. Man did not know where the sixth defendant went whereas Wong said he was subsequently on the minibus and in the Cactus Apartment with Wong. In the light of that evidence, which was clearly accepted by the jury after warnings as to accomplice evidence which we find to have been adequate, the evidence of the Chief Inspector became superfluous. The complaint as to that evidence was that it should not have been admitted since its prejudicial effect outweighed its probative value. What happened was that one, Cheung Noi, another victim of the chopper attack, having identified the sixth defendant at an identification parade, was quite unable to identify him in court whereupon the Chief Inspector gave evidence that the person identified by Cheung at the identification parade had in fact been the sixth defendant. Even had this evidence not been rendered superfluous by the jury's obvious acceptance of Wong's evidence we consider, on the authority of R. v. Osborne and Virtue(3), that it was admissible. 28. Mr. Bernacchi, for the first and sixth defendants, urged that having regard to the subjective test of criminal intent laid down in Section 65A(1) of the Criminal Procedure (Cap. 221) the issue of manslaughter should have been left to the jury on the basis that the degree of injury intended might have been less than grievous bodily harm. We are unable to agree. It was open to the learned judge to take judicial notice of the nature of triad gang fights and the types of weapons employed therein. Wong spoke of choppers and said that in the bus knives were taken from a cardboard container by each of the passengers. The judge could have been in no doubt about the nature of those knives which were of a length sufficient to require a tailor's carton to accommodate them. Any suggestion that the intention of persons deliberately setting out to chop a rival gang with such weapons might have been to inflict less than grievous bodily harm would have been entirely fanciful and the judge was right to leave the issue to the jury on the basis of murder or nothing and not to obscure a crystal clear issue by the introduction of a possible verdict of manslaughter. The case of Tsang Wai-keung v. The Queen(4), cited by Mr. Bernacchi, was a case in which a majority of the Full Court considered that the learned commissioner in the court below had been right to leave the issue of manslaughter to the jury in respect of one of three robbers on the ground that there was a possibility that his intention did not extend to the infliction of grievous bodily harm. In the present case, upon any view of the evidence, there was no such possibility. 29. It was said in regard to the first, third, sixth and seventh defendants that the learned judge did not adequately direct the jury as to common intent and, on behalf of the latter two, as to accessory to the fact and counselling and procuring. Neither the third nor the seventh defendant went on the savage chopping expedition but both were said to be present at the meeting which immediately preceded the minibus ride and the attack and which meeting was held in the home of the third defendant at Tsuen Wan. 30. In regard to common intent the learned judge directed the jury as follows:-
and later:-
31. It is important to consider these directions in the light of the background to the chopping attack. It was apparent from the evidence that there existed in Tsuen Wan a situation in which the 14K Triad Society led by the third defendant operated various illegal activities with which the seventh defendant was associated although he came not from Tsuen Wan but from Mongkok. He was known as a "big brother" and his assistance had been enlisted on previous occasions in times of trouble for the 14K Society which society was in direct conflict with the Wo Hop To Society. That conflict had flared up on the 14th June 1976, that is approximately five weeks before the events charged, when a blood brother of the third defendant together with the fourth defendant (who was subsequently acquitted in these proceedings) and others were chopped by members of the Wo Hop To Triad Society. There was evidence that the third defendant was very angry about the assault on his brother and the other 14K members and had declared his intention of taking revenge upon the Wo Hop To members "tit for tat". It was against that background that the meeting - which immediately preceded the minibus ride and the attack the subject of the charges - was held at the third defendant's house in the early hours of the 19th July. 32. There was evidence from both Wong and Man to the effect that at the meeting the third defendant gave instructions that the group should proceed across the harbour to chop people of the Wo Hop To and that the first defendant also observed that someone was going across the harbour to chop people. When the third defendant gave his instructions he was addressing the meeting at large and spoke of revenging his brother. There was further evidence from Wong that at the Cactus Apartment the first appellant told the others that they were to go upstairs and chop anybody they saw there. The sixth defendant was then amongst the party with a knife and the first appellant gave Wong instructions to guard the door to the Cactus Apartment in order to deal with anybody coming out. There was also evidence from the driver of the minibus that the bus had been either hired or commandeered by the seventh defendant and there was evidence from Man that at the meeting in the third defendant's home the seventh defendant had entered into the planning of the attack in that he had suggested that the attackers should each place toothpicks in their mouths as a means of recognition so that they would not be chopped by members of their own party. 33. It transpired of course that the persons who were in the Cactus Apartment and who were chopped said they were not members of the Wo Hop To Triad Society and as a result of this it was suggested that there had been a change of plan so that those responsible for seeing that others embarked upon the adventure cannot be said to have shared any common intent in regard to what actually happened. We think that this argument is without merit and that there was no change of plan but a possible miscarriage of the plan in that the Wo Hop To members, who were known to have left the vicinity of Tsuen Wan, were not in the place where the attackers expected to find them. That the attackers believed that the persons inside the Cactus Apartment were Wo Hop To members was evidenced by Wong who said that his information from the first defendant was the persons inside were such members. Moreover, it having been decided at the meeting that Wo Hop To members should be chopped there was no hesitation about where the party should go in order to accomplish that; there was no search for members of the rival gang, the minibus proceeding straight to the Cactus Apartment in apparent furtherance of the plan concocted immediately earlier at the meeting in Tsuen Wan. Such a direct descent upon one address and one address only suggests anything but a change of plan. 34. We do not propose to detail all the arguments advanced in regard to the alleged failure adequately to direct the jury upon common intent, accessory to the fact and counselling and procuring. It is sufficient to say that in the light of the background of the planned attack and of the evidence both as to planning and execution which we have outlined, the summing up was entirely adequate in regard to these matters. 35. The appeal of each appellant is dismissed.
Representation: Bernacchi, Q.C. & Goodbody (Helen A.L. & Co.) for 1st appellant H. Hu (Geerge Liang & Co.) for 2nd appellant Jackson-Lipkin, Q.C. & van Buuren (H.H. Lau & Co.) for 3rd appellant Bernacchi, Q.C. & R. Leung (R. Young & Co.) for 4th appellant K-John Cheung (Geerge Liang & Co.) for 5th appellant Alderdice for crown (1) 1954 A.C. 378 (2) (1976) 63 Cr. App. R. 132. (3) (1973) Q.B. 678. (4) 1973 H.K.L.R. 432. |