Yeung Tei Sun v. The Queen

CACC000480/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 480 OF 1975

-----------------

-----------------

Coram: Huggins, McMullin & Cons, JJ.

Date of Judgment: 1st August 1975.

-----------------

JUDGMENT

-----------------

Huggins, J.:

1. This is an appeal against a conviction on a charge of murder. The Appellant was alleged by the Crown to have been one of a party of three of four men who entered a barber's shop and brutally murdered one of the customers who was sitting in a chair.

2. The evidence clearly established that the Appellant was present. The question which the jury had to decide was whether the Appellant participated in the murder. The barbers who gave evidence were unable to identify the persons who actually struck the blows. They did not see the murderers leave the premises and the truth appears to be that they escaped through a back door. There was evidence that when some three months later the police went to the premises at which this Appellant and two other men were found the Appellant tried to escape in a manner which was fraught with danger to his own life by climbing down many floors down a drain pipe. The only other evidence - and probably the vital evidence - against the Appellant was a statement which he made to a police officer.

3. Mr. Eddis has said everything which we think could possibly be said on behalf of the Appellant and the substance of his argument is that there really was no sufficient evidence to justify putting this Appellant upon his defence. He says there was nothing more than proof of presence at the scene of the crime, a presence which the Appellant in his statement frankly admitted. There are only a few passages in the statement which are relevant to this matter. The Appellant was asked what they were doing and he said: "We were looking for someone inside [the barber shop]". He was asked: "Who were you looking for?" and he mentioned the name of the Deceased. "Why", he was asked, "did you look for him?" and he replied: "At that time I did not know why". He said that he saw one of the persons he was accompanying stab the murdered man once in the back with a knife. It was at this point that he was interrupted - and properly interrupted - by the police officer and cautioned. That last answer had begun with the word "First" and we take Mr. Eddis's point that it was unfortunate that the learned judge in his summing-up should infer that the Appellant ought to have gone on to say what happened second, but in view of the caution quite clearly the Appellant was entitled to say whatever he thought proper or to say nothing at all. However, the judge said expressly that this was his own personal view that it was strange that the word "First" had been used and we do not think that any real damage was done to the Appellant.

4. After the caution come the crucial words:

"At that time, Fu Chai, Kwan Chai and I after seeing Fat Chai had stabbed Lam Kit Lung twice with the knife, then pressed against Lam Kit Lung with chair(s) until (he) died".

The suggestion is that this is ambiguous and that it can be read as meaning that Fat Chai (the man who did the stabbing) also did the pressing. We do not read this statement in that way. The grounds of appeal make a number of allegations, in effect, of mistranslation. We do not think that it is open to us to consider these arguments. The translation is there and if it is suggested that the translation is wrong even to the extent that it could be put in another way and that there is an alternative translation this ought to be made the subject matter of evidence. As we read this statement it is perfectly clear that Fu Chai, Kwan Chai and the Appellant saw the stabbing and that they then pressed Lam Kit Lung with a chair (or with chairs) until he died. The obvious implication - and one which we think the jury must have drawn - was that Fat Chai was the one who actually struck the blows and the other men merely made sure that the victim did not escape out of the chair, where he was struck no less than twenty-three times. That being so we are quite satisfied that there was evidence which was properly left to the jury and evidence upon which the jury were justified in reaching the verdicts which they did.

5. There were other complaints made about the summing-up, one of them relating to "the mathematics of remembering the incident", where it is suggested that there was an unfair implication that the Appellant had a feeling of guilt since he was able so clearly to recollect an incident which happened 85 days before it was pointed out to us that the question which was put to the Appellant had been preceded by a statement by the police officer as to the subject matter of his enquiries. It may be that it was not the clearest way or the proper way to leave this matter to the jury, but, again, we do not think that any substantial miscarriage of justice can possibly have resulted either from that matter alone or from that matter combined with the previous matter to which we have referred - the use of the word "First".

6. As to the other matters which have been mentioned by Mr. Eddis we do not think that there really is any substance in the complaint that the summing-up was unfair to the Appellant, and in our view this application must be dismissed.

1st August 1975.

Representation: