Choi Chi Keung and Others v. The Queen
Read the full judgment text of CACC 1048/1979 on BabelCite. This Court of Appeal judgment was delivered on 9 June 1980.
1. We dismissed this appeal and promised to give reasons in writing.
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CACC001048/1979
Coram: Leonard, J.A. Addison & Garcia JJ. Date of Judgment: 9 June 1980 -------------------------------------------------------------------- REASONS FOR JUDGMENT OF THE COURT -------------------------------------------------------------------- 1. We dismissed this appeal and promised to give reasons in writing. 2. On the 12th November, 1979 the 1st and 2nd appellants were convicted of the murder on the 5th day of February, 1979 of Chan Hing and of robbing his wife, Madam Tse King-yau. The 3rd appellant was also convicted of the robbery but he was found guilty of manslaughter and not murder. All three appellants have appealed against conviction - the 3rd appellant having abandoned his appeal against sentence. 3. Briefly, the facts are that on the 5th day of February, 1979, a gang of five men, of which the three appellants were members decided to rob the deceased, who was then a pig farmer at Ng Ka Chuen, Pat Heung, Kam Tin. At about 2 a.m. that morning, the gang proceeded towards the deceased's premises with one of the members carrying a knife of about 12 in. long. The premises in which the deceased and his wife lived and worked consisted essentially of two wooden structures with some vacant land and the whole area was surrounded by a wire boundary fence, the main entrance being barred by a metal wire gate which was padlocked from the insides. The deceased slept in a cockloft above the hut where pig feed was stored, whilst Madam Tse slept in an adjoining hut on the ground floor level. As the five men reached the periphery of the premises their approach was heralded by dogs barking and the noise awakened Madam Tse. She emerged from her hut with a torch to see what was happening and seeing some men about, apprehended that they were robbers. Meanwhile two of the gang, the 1st and 2nd appellants, had reached the fence whilst the other three were said to be standing at a distance of about 200 feet from the premises to act as look-outs. The 1st and 2nd appellants, one of whom was armed with the knife mentioned earlier, began to climb over the fence, and seeing this, Madam Tse picked up a wooden pole from the ground to drive them away. She called out to her husband to come to her aid. The deceased came down to the ground and armed himself with an iron rod, but despite their combined efforts to repel the intruders, they were no match and Madam Tse retreated to her hut and closed the door. The deceased was unable to retreat in time and he was cut down savagely by the intruders, suffering extensive injuries causing him to collapse at the entrance to his wife's hut. He called for assistance from Madam Tse and she opened the door so that she could drag him inside the hut. However, this provided an opportunity for the two men to rush into the hut before she could assist the deceased. Once inside, the two appellants asked her for money at the same time threatening her with the knife. There was no money in the hut and they began to ransack it and the only things they were able to get from her were two bank passbooks and a gold finger ring which she was at that time holding in her hand. They then left the premises but not before they had cut the telephone wires. The deceased died that same day from his injuries whilst Madam Tse who was also injured but not severely, was discharged from hospital after treatment. The three look-outs ran away from the area when they heard the cry of "Save Life" uttered by a woman's voice. They ran to a playground which was about 20 minutes walk from the premises in question and they were later joined by the 1st and 2nd appellants. Of those three look-outs one was the 3rd appellant and the other was Wong Hon-ming. 4. Following the incident, the 1st and 2nd appellants were arrested on 13th April, 1979 whilst the 3rd appellant and WONG Hon-ming were arrested on 10th July, 1979. The fifth member of the gang that morning, that is, For Shing, is still at large. 5. All the members of the gang in custody were charged with murder and robbery, but WONG Hon-ming was granted immunity from prosecution for the said offences on his agreeing to give evidence on behalf of the Crown. The main evidence against the 3rd appellant comes from him, while in respect of the other two appellants, the Crown relies on the evidence of Madam Tse and the confessions made by the 1st and 2nd appellants respectively. 6. At the hearing of this appeal various grounds have been argued before us and it is to these that we now turn. 7. Criticism has been levelled at the learned trial judge for his allowing to go before the jury the cautioned statement made by the accomplice WONG Hon-ming on the 11th July, 1979, shortly after his arrest. 8. Wong was initially indicted for murder with these appellants. On the 19th September he made a statement to his solicitors which amounted to a denial of his involvement. He made no reference in that statement to the 1st appellant and he claimed he was only casually acquainted with the 3rd appellant. At the trial he said the 3rd appellant was his closest friend. He said that on the night in question he was in a bar with the 3rd appellant and there he happened to see the 2nd appellant. After that bar closed at 2 a.m. he and the 3rd appellant went to Wing Wah teahouse in Yuen Long where they remained until 2.40 a.m. at which time there was some sort of a fight. He left and went home. Such was the account he gave to his solicitors, embellished by various accusations against the police which, if believed, would have rendered his cautioned statement involuntary and inadmissible. At the trial he retracted those accusations. 9. There were no eye-witnesses to the murder save the deceased's wife who could not identify any of the assailants. This was one of those cases where a prosecution could not be launched without an accomplice giving Queen's evidence. On the 29th September WONG Hon-ming, having been told he would be offered an immunity if he gave full and truthful evidence, made a statement to the police in the presence of his solicitor detailing his part in the crime and implicating each of these appellants. He was granted an immunity on the 1st October conditional upon his evidence being truthful. His statement to the police on the 29th September was more or less a repetition of his cautioned statement of the 11th July. 10. It was Mr. Sakhrani's contention that the cross-examination of this witness was not of the calibre which justified the admission in evidence of Wong's cautioned statement of the 11th July 1979. It was his argument that although counsel both for the 1st appellant and for the 2nd appellant suggested to Wong that he had fabricated his evidence nevertheless it was not expressly put to the witness that his evidence was of recent fabrication nor could that be inferred from the tenor of the cross-examination. 11. The general rule applicable to these circumstances is that stated by Holmes J. in Coll(1), as approved in Oyesiku v. R.(2). It is in these terms:
12. Cross in his 4th Edition on Evidence at page 216 cites the above passage and goes on to say:
13. Mr. Sakhrani referred us to the Privy Council case of Fox v. General Medical Council(3). We set out part of the judgment of Lord Radcliffe at page 1024 of the report. His Lordship said:
14. Having stated the law Mr. Sakhrani then directed our attention to various parts of the cross-examination of Wong which he claimed amounted to no more than contradiction of his testimony and not to a suggestion of afterthought. It was extracted from the witness that in his statement to his solicitors he made no reference to the 1st appellant and Mr. Sakhrani pointed out that the jury were made aware that Wong had confessed in his cautioned statement made in July. 15. One extract of the cross-examination cited to us appears at page 965 of the transcript. There, Miss Remedios questioned the witness as follows:
Other portions of the transcript were cited to us which we do not propose setting out. 16. Mr. White, for the Crown, also referred us to various passages in the extensive cross-examination of Wong. He contended that the points made or sought to be made by counsel for the 1st and 2nd appellants were briefly these:
17. Obviously the suggestion being made was that the witness had fabricated evidence to secure immunity from prosecution. 18. Other points were made but we feel these examples suffice for our purpose. 19. We do not say that the prosecutor could not, in re-examination, have asked the witness whether he had made a similar statement to the police prior to the 29th September. Undoubtedly he could. What is in issue before us is whether the trial judge erred in admitting in evidence the statement of the 11th July. In doing so the judge gave as his reason:
20. We do not think he was wrong in exercising his discretion in the way he did. 21. In reaching our view we have had in mind the observation of Karminski, L.J. in Oyesiku v. R.(2) where she following extract appears:
22. We have no hesitation in upholding the ruling of the trial judge. It was not a prerequisite to the admissibility of the cautioned statement that the witness was expressly challenged with recent invention. His credibility was impugned, and the use which was sought to be made of the inconsistent statement to the solicitor, against the peculiar background of an immunity made it proper, in our opinion, that the earlier statement was put before the jury. It placed the seal of consistency on his evidence. 23. This ground of appeal therefore fails. 24. There is a further ground of appeal which alleges an improper reception of evidence and which can be conveniently dealt with now. It arises in a somewhat unusual way and concerns the 3rd appellant. He made a cautioned statement to the police the admissibility of which was challenged at the trial. It was excluded by the trial judge on the ground of involuntariness after an examination on the voir dire in the absence of the jury. 25. That being the case nothing more should have been heard of it: not even the fact it had been made should have been revealed to the jury (R. v. Treacy(4)). 26. Unfortunately the jury became aware of that fact in the preamble to the statement of the 1st appellant which was admitted in evidence as Ex. P28. In his notebook the police officer recorded that he showed to the 1st appellant the cautioned statement of the 3rd appellant at 4.15 p.m. on the 19th April 1979. The entry went on to record that after reading it the 1st appellant said:
27. The 1st appellant was then cautioned and he thereafter said:
28. At the trial, counsel for the 3rd appellant asked that the reference to the 3rd appellant having made a statement be either edited or expunged and in that event he said he would have no objection to the statement being admitted in evidence. Counsel for the prosecution indicated that he would not strongly contest its admission if the court felt that its prejudicial effect to the 3rd appellant outweighed its probative value against the 1st appellant. The trial judge having considered the matter felt it should stand. This utterance by the 1st appellant really did not carry the prosecution's case against him far forward especially as there were other confessions made by him in the same notebook. The trial judge properly directed the jury that the statements were simply evidence against their maker but the jury were obviously curious to know whether in fact the 3rd appellant had made a statement and what its contents were and why it was not placed before them. 29. At the conclusion of the summing-up the foreman said some members of the jury were not happy about learning the 3rd appellant had made a statement which they had not seen. He asked for directions whether that was relevant or not. The judge told them, immediately before they retired, that there was no statement of the 3rd appellant for them to consider and that they should disregard that reference in the 1st appellant's statement. 30. No objection is taken to the direction given finally by the trial judge. What has been contended before us is that the jury knew the 3rd appellant had made a statement and from that fact they must have inferred he was involved in the murderous assault. The argument in a nutshell, is "how could the 3rd appellant blame another except he knew about the offence and how could he know about it unless he himself were involved." 31. This argument presupposes a great deal. We can readily envisage circumstances as to how the 3rd appellant could lay blame on another without himself having taken part in the commission of the offence and we have no reason to believe the jury would think otherwise: but the fact still remains that the statement should have been edited in such a way that the jury were made unaware the 3rd appellant had earlier made a cautioned statement. 32. Mr. Sakhrani does not invite us to say that this lapse itself rendered the trial against the 3rd appellant unsafe or unsatisfactory but he does ask us to place it in the balance when considering the appeal of the 3rd appellant from that viewpoint. We feel that the proper direction given at the conclusion of the summing-up made up for the error and rendered infertile any seed for possible injustice. This ground of appeal is likewise dismissed. 33. The remaining grounds of appeal complained that the jury was inadequately instructed on matters of fact favourable to the accused; that there was a positive misdirection as to the evidence given by Madam Tse involving both the first and the second appellants and thirdly, that there was an inadequate direction as to the complicity of the third appellant. We deal with these objections in that order. 34. As to the first of them the trial judge carefully directed the jury as to the dangers of convicting on the evidence of the accomplice, WONG Hon-ming, in the absence of corroboration but told them that they might find corroboration in various statements made by the first and second appellants respectively. Mr. Sakhrani argued and indeed showed us from the transcript that in places the evidence of the accomplice, WONG Hon-ming, was at variance with the contents of the statements made by the first and second appellants. In fact there were such variations but the evidence of the accomplice, WONG Hon-ming, was in the case of each of the appellants corroborated in one or more material particulars implicating that appellant by the statement or statements he made. In each case the presence of the appellant in question in and in the vicinity of the hut at the time of the robbery and murder was shown by the respective statements. What was required was corroboration in a material particular implicating the accused in question and of that there was an abundance. Thus the trial judge was fully entitled to direct the jury as he did. It was clearly unnecessary, and indeed undesirable if the jury were not to be confused for the judge to point to all the discrepancies between the evidence of WONG Hon-ming and Madam Tse on the one hand and the contents of each statement on the other. The statements were before the jury and available for their perusal. The evidence of WONG Hon-ming and Madam Tse was amply dealt with by the judge. There is nothing in this ground of appeal. 35. Reference is also made to the evidence of a doctor who examined the first appellant some time after he had made the incriminating statement which acted as corroboration for the evidence of the accomplice, WONG Hon-ming, that he had found an abrasion on his right middle chest. The evidence of the doctor as to this bruised abrasion is somewhat difficult to understand. The doctor described it as a bruised abrasion 8 cms. x 3 cms. on the front of the right middle chest and said that the first appellant had told him that he injured his chest in a struggle which ensued during his arrest. He added that it could have resulted (a) from a fall when the body was moving with some speed, or (b) from a blow "directed upwards and downwards". We find the latter possibility bewildering as no doubt did the trial judge. It was suggested that the presence of the abrasion should have been considered by the jury when assessing what weight they should place on the first appellant's statement and that they should have been directed to that effect. 36. In dealing with the statement the trial judge did in fact refer to the bruise on the chest. He commented:
Finally he told the jury that whether they wished to attach full or reduced weight to the statement which had been produced was a matter entirely for them. We do not consider that any justifiable complaint can arise on this score. 37. A further complaint arose from what was clearly a misdirection on the facts by the trial judge. Madam Tse, the victim of the robbery was unable to identify either the first or the second appellants as the robbers. It is only when one adds together the evidence of Madam Tse, the evidence of the accomplice, WONG Hon-ming, and the statements made by the first and second appellants that one has clear evidence that the first and second appellants were the people who invaded the home of Madam Tse. In the course of her evidence Madam Tse had said that "a bleeper" in the possession of one of the robbers had sounded and thereupon the two robbers had run off. She had also given evidence that the tall robber had slashed at the deceased with a knife which he held and that the other robber who was shorter than the first had joined in the attack on the deceased. The misdirections complained of are in the following terms:
38. The second misdirection reads:
We have come to the conclusion that the jury cannot have been misled by these misdirections as to fact. It must have been abundantly clear to the jury that the old lady said nothing of the kind and in commenting on her evidence as a separate topic the judge said:
Again when discussing her evidence in particular he said:
When he came to consider the case against the first accused he said:
39. In dealing with the question whether the first accused was one of the robbers and a subsidiary question whether the first accused murdered the old man he does not at once mention the evidence of Madam Tse. In dealing with the possible intent of the first appellant he refers to "the old lady's admission that she hit the taller man with her stick". 40. In dealing with the case against the second accused the trial judge observed:
Nowhere other than in the two misdirections of which complaint has been made is it suggested that Madam Tse identified either the first or second appellant and it must have been quite clear from the summing-up as a whole that the trial judge did not intend to suggest that she had. The two misdirections which I have quoted were clearly based on the assumption that the jury would conclude as would have any reasonable jury that the first and second appellants were the assailants who entered the hut. 41. The trial judge quoted at some length from Madam Tse's evidence in which she refers to "the one with the knife holding it against my chest" and in which she refers to the other man as "the shorty". It must have been abundantly clear to the jury that when the trial judge referred to "the first accused's bleeper" and to "the first accused and second accused having run off" he was not suggesting identification by Madam Tse but that he himself was assuming that when she was referring to the "taller of the two robbers" the person to whom she was referring was the first accused and when she was referring to the "shorter" of the two the person to whom she was referring was the second accused. There was ample evidence which if believed rendered such an inference inescapable in the evidence of Wong and statements of the first accused as far as the first appellant is concerned and in the evidence of Wong, Lam and the second appellant's statements insofar as the second appellant was concerned. 42. It is not insignificant that counsel for the crown pointed out to the trial judge after this misdirection that there was no evidence as to which person carried a bleeper. "Your Lordship was referring to the bleeper being carried by the first accused. It was carried by one of the assailants inside the hut." There was then a misdirection in that the judge made an inference that was for the jury to make but we do not think this can have affected the jury's deliberations and would unhesitatingly apply the proviso in respect of it. 43. As to the appeal of the third appellant the summing-up was attacked as inadequate where it dealt with the allied questions of participation and common design. It is, of course, a truism that the third appellant could not have been found guilty of the robbery unless it was shown that he had participated in it nor could he have been found guilty of manslaughter unless the jury were satisfied that he had joined in a common design that knives or a knife might be used in the commission of the armed robbery even if only for the purpose of frightening the victims. The trial judge made it perfectly clear to the jury that the only evidence against the third appellant was the evidence of the accomplice, WONG Hon-ming. He further directed them that
He also said that his evidence likewise "proved" that
44. Complaint was further made that he misdirected the jury when he said that the third appellant knew that the first appellant had a knife and that the first appellant knew that he was aware of that. 45. Finally, it was objected that he had failed to direct the jury adequately or at all to the effect that it was for them to decide what the common design was. 46. In order that the evidence of WONG Hon-ming insofar as it implicated the third appellant may be appreciated it is necessary to consider the evidence as to the topography of the neighbourhood of the deceased's house. This was a matter on which the jury was peculiarly well instructed since they had visited the deceased's house and the other places mentioned in evidence. 47. The only evidence against the third appellant was such inferences as the jury might draw from the view of the premises in which the murder occurred and the evidence of WONG Hon-ming for the third appellant did not give evidence. Wong's evidence was that he lived at Shek Wu Tong Village, some twenty to twenty-five minutes walk from Ng Ka Village which in turn was some fifteen to twenty minutes walk from Kam Tin. At the time in question his closest friend was the third appellant. He said he met him on the evening of the 4th of February at the Siu Sai Lau Restaurant in Yuen Long. They remained there until about 11 o' clock. They then took a taxi to Kam Tin to the Wan Seung Bar. There they met the first and second accused who joined them at their table. The first appellant asked them if they knew the pig-breeder who lived in Ng Ka Village and if he was a rich man. After ten minutes conversation the first appellant returned to his own table. The bar closed at about 2 o' clock. The first, second and thir appellants and a man called FOR Sing repaired to the third appellant's house which was about five minutes walk away at Tai Kong Po Village. They went to the cockloft of a house rented by the third appellant which was beside a vegetable collecting centre and a playground. The five of them entered but the first appellant went out shortly after arrival but he came back after about five minutes. When he came back he had a knife with him. He was holding the knife in such a way that all who were present must have seen it. The first appellant asked them to come out and all four of them followed him. They got to the nearby playground. There the third appellant asked the first appellant where they were supposed to be going. The first appellant said that they were going to rob the pig-breeder. The first appellant in the presence of all of them put the knife inside his trousers at the waist and in tacit acquiescence with the suggestion they set out to rob. It was then well after 2.00 a.m. in the morning and the party went along a lonely stone path to the pig-breeder's house which was 15-20 minutes walk away. Wong was in the lead. FOR Sing was right behind him. The others followed apparently in single file. The party reached the front gate to the pig-breeder's premises and crossed a field to do so. When they arrived there they heard the dogs barking and saw a torch light shining out of the house. According to Wong, the first appellant said "let us go in" and the first and second appellants climbed over the fence into the property. Wong said he did not go in because he knew the pig-breeder but he claimed that the third appellant and FOR Sing did not cross the fence. The three of them remained outside. When the first appellant entered he still had the knife with him as Wong had seen him carrying it as they walked along the path towards the house. The following passage occurs in Wong's evidence:
And later the following passage occurred:
48. It is particularly noteworthy that after Wong, FOR Sing and the third appellant left the area they went back to the playground from which they had originally set out. There they waited for the others for about half an hour. There the first and second appellants joined them. The first appellant was carrying the bloodstained knife and had blood on his face, on his hands and on his clothes while the second appellant had blood only on a Chinese quilted jacket which he was wearing. The first appellant told them that the deceased had been wounded. They all went back to the third appellant's house where the first appellant washed himself and the third appellant supplied both the first and second appellants with changes of clothing. Then all five of them walked to the vegetable collecting centre near Tai On Primary School, a half mile away, where the bloodstained clothes were burned. Any agreement reached after they left the third appellant's cockloft and set out across the fields for the purposes of robbing the pig-breeder as to the various parts which each of the five might play must have been a tacit one. The trial judge in dealing with the question of common design had this to say:
Later he had this to say:
On the question of participation he had this to say at an early stage:
49. In dealing with the intent of any who participated he quotes section 65(a) of the Criminal Procedure Ordinance and instructs the jury that it directs them to have reference to all the evidence and then to draw such inferences from the evidence as they think proper. 50. In dealing with the case against the second accused the trial judge has this to say about the fact that there was no express agreement as to the roles that would be played by those participants:
He goes on to indicate that if the second accused did take part in a joint venture of armed robbery that the jury must then go on and ask themselves the extent of the common purpose. If the common purpose shared by the first and second accused was the infliction of really serious bodily harm then the second accused might be found guilty of murder. He continues:
When he comes to deal with the case of the third accused he had this to say:
He goes on to give a most careful and detailed warning as to the dangers of accepting Wong's uncorroborated evidence. He continues:
51. We think that direction adequately covered the question of common intent and participation. He first invited the jury to determine what was the intention of the robbers that night. If they came to the conclusion that either the first or second accused Or both intended to use all necessary force to overcome resistance they still had to determine whether the third appellant shared that intent or whether he harboured a different but lesser intent to frighten the occupants with a knife. His position had to be considered in isolation but that if they concluded he had the lesser intent there was still a sufficient mens rea for the offence of manslaughter. 52. In our case once the jury accepted the evidence of Wong on any reading of his evidence they must have come to the conclusion that there was a common design on the part of all to use the knife at least to intimidate. There was no evidence to the contrary. We consider that read in its entirety notwithstanding the misdirections as to the evidence of Madam Tse the general effect of the summing-up can have left the jury in no doubt but that as far as the first appellant was concerned they might legitimately convict him of murder if satisfied that he inflicted the fatal blow with the intention of causing grievous bodily harm; that they might convict the second appellant of murder only if the common design existing in his mind included the causing of serious harm or the use of whatever force was necessary to achieve their object or permit their escape and that they were entitled to convict the third appellant of manslaughter depending on his own mens rea, that is, the use to which he intended the knife which he knew the first appellant had might be put. We therefore see no merit in these appeals which are dismissed. Representation: Mr. Sakhrani & Miss C. Remedios (D.L.A.) assigned for appellants. Mr. C. White, S.C.C. for Crown/respondent. (1) [1889] 25 L.R. Ir. 522 (2) [1972] 56 Cr. App. R. 240 (3) [1960] 1 W.L.R. 1017 (2) (1972) 56 Cr App. R. 240 at p. 245 (4) (1944) 30 Cr. App. R. 93 |