Lee Hin-kai and Others v. The Queen
Read the full judgment text of CACC 516/1971 on BabelCite. This Court of Appeal judgment.
1. The three appellants, aged 19, 15 and 21 respectively at all material times, were convicted of the murder of one Leung Sui-fong on the 10th day of March, 1971. Following the course adopted by the trial judge in his summing-up it will be convenient to refer to the appellants hereafter as the "defendants". Arising out of the same incident the first and second defendants were further convicted upon three counts of unlawful wounding, and all the defendants were convicted upon the joint count of a
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CACC000516/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 516 OF 1971 -----------------
Coram: Rigby, C.J., Huggins and Pickering, JJ. Date of Judgment: 26th January, 1972. ----------------- JUDGMENT ----------------- 1. The three appellants, aged 19, 15 and 21 respectively at all material times, were convicted of the murder of one Leung Sui-fong on the 10th day of March, 1971. Following the course adopted by the trial judge in his summing-up it will be convenient to refer to the appellants hereafter as the "defendants". Arising out of the same incident the first and second defendants were further convicted upon three counts of unlawful wounding, and all the defendants were convicted upon the joint count of affray laid against them. Consequent upon their convictions for murder, the first and third defendants were sentenced to death and the second defendant, having regard to his age, was ordered to be detained until Her Majesty's pleasure be made known. All three defendants now apply for leave to appeal against their convictions. In accordance with the usual practice, we have treated their applications for leave to appeal as the hearing of the appeal itself. 2. The facts put forward by the prosecution in support of the charge, may be briefly stated. At about midnight on the 9th March, three pairs or couples of Chinese youths met at a cooked food stall in Tung Choi Street near Argyle Street in the Mongkok area of Kowloon. Each couple had passed the earlier part of the evening in different ways and it was allegedly purely by chance that they happened to meet each other at the same cooked food stall that evening. After they had eaten and conversed together for some time they decided to accompany one of their number, a youth named Tsoi Yiu-man, to the minibus terminal, from where he would take a bus to Kwun Tong. They walked along Argyle Street to the minibus terminal which was near the Gala Cinema, but when they got there they found no minibus there, so they decided that they would kill time by taking a walk round the block, passing through Sai Yeung Choi Street, Fife Street, Tung Choi Street and back to Argyle Street. When they reached the lane that crosses Fife Street at about the furthest point of the circle that they intended to walk, they were set upon by a group which they, when called as witnesses at the trial, variously described as from ten to twenty persons. Their attackers were armed with choppers, long knives and bamboo poles. As the result of the attack, Leung Sui-fong, aged 27, received multiple deep lacerations to the head, face, hand and body and he died on his way to hospital. Three other members of this original group of six persons received lacerations, varying from relatively serious multiple wounds to one of them, and less serious - and in one case superficial - injuries as regards the two others. There was some conflict of evidence as to the precise manner in which the attack was carried out; one of the witnesses saying they were surrounded by the attackers, others saying that they came from the front and sides. Again, one witness said that he heard shouts of "Chop him" or "Kill him"; others said they heard no shouts at all. As the learned trial judge intimated to the jury, such differences might well be understandable in the light of what must undoubtedly have been a thoroughly frightening experience for those concerned. The attackers fled as quickly as they had come and the deceased and injured persons were taken to hospital, the deceased and two of the injured persons to the Queen Elizabeth Hospital and one of the injured persons to the Kwong Wah Hospital. 3. Shortly after the incident had occurred a party of police arrived on the scene and conducted a search. At the scene they found four wooden poles and a number of human bloodstains on the ground. In the early hours of the 14th March, some 4 days later, a police party arrested twelve youths in an unnumbered hut at Shek Kok Tsui New Village, Castle Peak, in the New Territories. The three defendants were amongst those twelve youths. Later that same day, the second defendant led the police to a room occupied by one Lam Hau-wing at Shek Kip Mei Resettlement Estate. According to police evidence, under a bed in the room twelve long knives and four meat knives were recovered. Expert evidence confirmed the presence of groups 'A', 'O' and 'B' human bloodstains on the handles of some of those knives. There was evidence - for what it was worth - that the blood groups of the deceased and the three injured persons were from blood groups 'O', 'A' and 'B'. At separate identification parades the three persons injured in this incident positively identified the three defendants as being members of the gang who had attacked them. At the trial these three persons gave evidence in detail in relation to each of these defendants specifying the part played by him, or them, in the attack and the weapons he, or they, were using at the time. Whilst there was no evidence that any of the defendants had struck the blows which caused, or contributed to, the death of the deceased, the case for the prosecution proceeded on the basis that the three defendants, individually being identified as being armed with offensive weapons, were part of an armed gang that waylaid and attacked the deceased and his companions with intent to kill, or at least to cause serious bodily harm, to one or more of the members of that group; that they succeeded in their avowed intention and purpose, and that each and every one of them taking part with that intention was guilty of murder. The defence put forward in respect of each of the three defendants amounted to an admission that each one of them was present in the immediate vicinity at the time the incident occurred but that none of them was part of the gang of attackers and had no part in what took place. 4. In order to appreciate the grounds of appeal now put before this court it is, I fear, necessary to deal in some detail with the specific defences put forward by each of the defendants at their trial. 5. The defence put forward by the first defendant was that between 8 and 9 p.m. on the 9th March, he was in a public billiards saloon. Whilst he was there the second defendant came into the saloon and told him that he, and the second defendant himself, were wanted at the Cheung Hing Building by a man named Wong Keung. Wong Keung did not say why they were wanted. Wong Keung was a man some 33 years of age and he was known to the defendant as a fighting member of the (notorious) 14K Triad Society. He was a man whose orders were not to be questioned, so that both the first and second defendants, in compliance with these orders, proceeded to Wong Keung's premises on the 9th floor of the Cheung Hing Building. The first defendant had not been there before. When they got there the first defendant was surprised to find some 8 to 9 other people there, including his elder brother Lee Woon-kai. Wong Keung asked the first and second defendants if they had eaten and when they said 'No' he invited them to eat with the rest of the party. After their dinner the first defendant asked Wong Keung what he wanted them for, and Wong Keung replied that he would let him know later when some other person arrived. The first defendant said that he then felt sleepy and he - and, indeed, the second defendant - both went to sleep. He was awakened about three hours later - sometime after midnight - by Wong Keung. At that time there were only about four persons left in the room, namely, the first and second defendants, Wong Keung and another man. Wong Keung then gave the second defendant $10 and told him to take a taxi with the first defendant and go to the Gala Cinema, and there they were to wait for a man named Tsui Chai. Wong Keung did not say what they were to do after they had met Tsui Chai nor did either of them think fit to ask him. The first defendant knew Tsui Chai by sight but not well. They took a taxi to the Gala Cinema, arriving there shortly before 1 a.m. Tsui Chai was not there. They waited for him for some time but without avail. The Gala Cinema is on the corner of Sai Yeung Choi Street and Argyle Street. The section of Sai Yeung Choi Street, between Fife Street and Argyle Street, is 170 yards long. It runs parallel with Tung Choi Street and both of them run at right angles to Argyle Street. Fife Street is a relatively short street some 50 to 60 yards long running parallel with Argyle Street and connecting Sai Yeung Choi Street and Tung Choi Street about 100 yards up those streets from the Argyle Street end. The first defendant said that having waited there for some time they decided that they would walk up Sai Yeung Choi Street in the hope of seeing Tsui Chai. When they had got to the junction of Sai Yeung Choi Street and Fife Street, on looking up Fife Street they saw a fight going on. On closer observation, the first defendant saw that one of the persons involved was his elder brother. The first and second defendants then ran forward to give assistance. As they did so someone ran out from the street junction to block their way and started to attack the first defendant. The first defendant recognized that person as Fung Chi-ho, a witness who had earlier given evidence for the prosecution. The first defendant said that his opponent was taller and stronger than he and he was no match for him; the first defendant therefore picked up a pole with which to defend himself. Then he heard someone call out 'save life' and he and his brother then took to their heels and ran away. As they were running he noticed his brother's head was bleeding. They ran into Nathan Road. There they picked up a taxi and returned to Wong Keung's flat at Cheung Hing Building. There, Wong Keung treated the first defendant's brother's head.. Whilst they were there a number of other persons entered the flat, some of whom the first defendant noticed were carrying weapons in the form of knives and some of whom he noticed were injured. Later, the second defendant also came into the flat. The first defendant then, together with the other youths who had returned to the flat, spent the remaining portion of the night at the flat. The following morning, upon the instigation and instructions of Wong Keung, the party proceeded to Sheung Shui Village and thence to a hut in Shek Kok Tsui New Village, Castle Peak, in the New Territories, where they remained until they were arrested. 6. The explanation of the first defendant for accompanying Wong Keung and the rest of the party to the New Territories was that he found that not only was his brother's head injured but also his hand was fractured and so he went out there with his brother in order to look after him. The first defendant, admitted quite frankly in cross-examination that during the early hours of the morning, whilst still in Wong Keung's flat, Wong Keung had asked him to wash a number of knives, some long and some short, similar to the ones produced in court (being the ones the police, at the instance and under the direction of the second defendant, had found in the flat of Lam Hau-wing at Shek Kip Mei Resettlement Estate on the 14th March,), that he had, in fact, washed them and that he observed at the time that some of them had blood upon them. He denied, however, that he himself had at any time been in possession of any offensive weapons other than the wooden pole that he had picked up to defend himself when attacked by Fung Chi-ho. 7. The second defendant told a somewhat similar story. He said that earlier that same evening, the 9th March, a man named Tsui Chai, whom he knew previously, had telephoned him and asked him to meet him at a named restaurant. He did so meet him. There Tsui Chai told him that Wong Keung wanted him and the first defendant to go to Wong Keung's residence that evening and Tsui Chai gave to him a piece of paper with Wong Keung's address - Tai Kok Tsui, Cheung Hing Building, 9th floor, L Block - L Flat. - written down upon it. Tsui Chai told him that Wong Keung would tell him why he wanted them when he saw them. The second defendant then left the restaurant and later found the first defendant in a billiard-room and together they proceeded to Wong Keung's address. The second defendant confirmed the testimony of the first defendant that when they got there there were a number of other persons present including Wong Keung and that Wong Keung invited them to have some food with them. The second defendant then asked Wong Keung why he wanted them and Wong Keung replied that he would tell him later. The second defendant then went to sleep. Some hours later Wong Keung awakened him, gave him $10 and told him that he wanted him, together with the first defendant, to take a taxi to the Gala Cinema and there to meet Tsui Chai. The second defendant then went by taxi, with the first defendant, to the Gala Cinema. There they waited unavailingly for Tsui Chai and they then walked up Sai Yeung Choi Street in the hope of finding him. At the junction of Fife Street, looking down that street, the second defendant saw a number of people fighting. According to his evidence, the first defendant then suggested that they should go and see what was happening. They proceeded a short distance in the direction of the fight and the first defendant then called out "It is my brother fighting with them, let's run forward to give help." They did run forward to give assistance but as they did so they were intercepted and attacked by a number of persons wielding long poles. The second defendant himself received several blows on his back. Independently of the first defendant, he then ran away, picked up a taxi and returned to the flat of Wong Keung. On arrival there, he found that the first defendant and his brother were already there and he saw the first defendant's brother having his head bandaged. Whilst he was there, Wong Keung came up to him and to the first defendant, gave them a number of knives and asked them to wash them, and he further told the second defendant that after he had washed them he was to apply grease to them. The first and second defendants did what they were told. Wong Keung then wrapped up the knives in a piece of cloth and the second defendant, on his own admission, then took them to Lam Hau Wing's flat at Shek Kip Mei where he left them. It was there that, on the 14th March, the police", under the direction and guidance of the second defendant, found the knives. Having left the knives there, the second defendant, acting upon instructions earlier given to him by Wong Keung, returned to Wong Keung's flat. By that time, a number of other persons had already assembled in the flat. Later that same morning the party, under the guidance and supervision of Wong Keung, proceeded to Sheung Shui and then to the hut in the New Territories where they were subsequently arrested by the police on the 14th March. 8. The explanation of the second defendant as to why he accompanied the party to the New Territories and stayed with them there was because in the early morning hours of the 10th March, when he returned to the flat after having disposed of the knives, Wong Keung told him that some of those persons who had assembled in the flat had involved themselves in a fight, someone had been injured and it was not known whether that person was still alive or dead and that he, the second defendant, would be blamed if he did not accompany them. 9. The defence put forward by the third defendant was this: he was a friend of Wong Keung, knew that he was a member of the 14K Triad Society, had often rendered personal - perfectly innocuous - services to him and treated him, to all intents and purposes, as his elder brother. On the evening of the 9th March, the third defendant was at the house of his friend Lam Hau-wing, alias Kau Chai. Shortly after midnight the telephone rang: Kau Chai answered it and said the call was for him, the third defendant (Lam Hau-wing, called as a prosecution witness, had confirmed that the third defendant was with him that evening and that he did leave shortly after midnight, although he said he could not remember whether or not he left as a result of a telephone call). The third defendant answered the telephone call: the caller was Wong Keung. Wong Keung said that he wanted the third defendant to go to the Gala Cinema and wait for him there. Wong Keung did not say why he wanted him. After about half an hour, the third defendant proceeded by minibus to the Gala Cinema. He did not find Wong Keung there. He waited for him for about five minutes. The time then was about 1 a.m. He then walked along Sai Yeung Choi Street; when he got abreast with Fife Street he saw a number of people fighting; there were some twenty persons in all, several of whom he knew. There appeared to be two groups of persons fighting. He ran forward to assist his friends who appeared to be the victims rather than the attackers. Some of the attackers were armed with long poles. As he was about to help his friends he received a heavy blow at the back of the head. He stumbled and fell to the ground. He then received further blows; he managed to get to his feet and fled. His head was bleeding; he went for assistance to his friend Wong Wai who lived at Flat 'L' on the 9th floor of Cheung Hing Building. To his surprise the door of the flat was opened by his friend Wong Keung, the man who had asked him to meet him at the Gala Cinema. He asked him why he had not kept the appointment at the Gala Cinema and what he was doing at Wong Wai's flat. He received no answer. He knew Wong Keung was a friend of Wong Wai but although he had been to Wong Wai's flat two or three times before he had not seen Wong Keung there on any of those previous occasions. However, in cross-examination, he said he knew that both Wong Keung and Wong Wai were members of the 14K Triad Society. There were several other persons in the flat. He was then taken by some of those persons to a Chinese doctor to have his head injury treated. He spent the night at the Chinese doctor's establishment. The following morning he was picked up by one of the members of the group whom he had earlier seen in Wong Wai's flat, taken by car to Sheung Shui and from there to the stone hut at Shek Kok Tsui New Village, Castle Peak. There he stayed until the other persons - twelve in all including Wong Keung-until all of them were arrested at the hut four days later, namely, on the 14th March. He stayed at the hut because Wong Keung had told him that some of the members of that group had killed someone and that if he left and those persons were subsequently arrested he would be blamed as an informer. 10. That, in substance, was the defence put forward by the three defendants. None of them were members of any attacking party; none of them took part in any attack nor had any knowledge of any plan to attack anyone, assuming that any such plan had ever existed. They were at, or near, the scene of the incident purely by chance. None of them were armed with any offensive weapons; they were themselves the victims of an attack and, at worst, had only sought to defend themselves. 11. Apart from the three defendant themselves no witnesses were called for the defence. It is a curious fact that neither Wong Keung himself nor any of one other persons found in the hut when the twelve persons were arrested there, were called either as prosecution or defence witnesses, although it would seem apparent from questions asked by defence counsel, and admitted by the second defendant, that the other nine persons had, in fact, been brought before a magistrate and charged with affray and that at least one of them - whom curiously enough was the man Wong Keung - had been fined the sum of $400. 12. A number of grounds of appeal were advanced by Mr. Oswald Cheung, Q.C. who appeared on behalf of all three defendants. It would be convenient to deal separately with these grounds of appeal. 13. It will be recalled that all three defendants were charged not only with murder but also with the very much less serious offence of affray. The learned trial judge, having defined the common law offence of "affray" to the jury, then told them that if they accepted the evidence put forward by the prosecution eye witnesses as to the circumstances in which the incident occurred and the part played by each of the defendants, then they should find the defendants guilty of both murder and affray: that they could not convict them, or any of them, upon one charge without convicting them upon the other charge; conversely, that if they found them, or any of them, not guilty on the one charge then they should find them not guilty on the other. Mr. Cheung contended that that was a misdirection in law and that on the evidence given by the defendants at the trial each one of them could properly have been convicted of affray although found not guilty of murder. 14. We think there is substance in this submission. On their own evidence each or the three appellants joined in the melee, the first and second, according to them, going to the assistance of the elder brother of the first appellant whom they could see being attacked, and the third to the aid of a number of his friends likewise under attack. In joining in the fight, a fight conducted of any rate on the part of some of the participants with knives and poles, they were joining in an affray, for there can be no doubt that a fight of such a nature might well intimidate or frighten reasonable people - an essential ingredient of affray. It was unnecessary for the Crown to prove, by direct evidence, that anybody was in fact put in terror. Moreoever, we think it implicit in the finding of the jury on the charge of murder, that the jury was fully satisfied that the appellants went into the fight armed, for had the jury accepted their story of spontaneous unarmed intervention it is improbable in the extreme that they would have convicted of murder. The verdict which the jury actually returned on the murder charges was "According to law, guilty" and it is possible that this was a succinct way of saying "Guilty, because of the doctrine of common intent, which we don't like, "since the verdicts in respect of wounding and affray were unadorned by any such qualification. 15. However that may be, the learned judge's summing up on the question of affray was possibly unduly favourable when he said:-
16. The reference to the only part played by the appellants being that of victims overlooked their own evidence as to deliberately engaging in the fight though, allegedly unarmed. 17. Subject to one reservation, we are satisfied that that was a proper - even if an unduly favourable - direction. The one reservation in our minds arises as a result of the words used:-
We have considered whether the use of the words "completely" and "implicitly" wrongly conveyed to the minds of the jury that it was for the defence to satisfy the jury that their story was true before they, the jury, could find them not guilty of both murder and affray. 18. We are fully satisfied from other passages in the summing-up - particularly the passages at the bottom of page 14 and the top of page 15 and the passage on page 20, almost towards the conclusion of the summing-up, that the learned trial judge, on more than one occasion, made it abundantly clear to the jury that - to paraphrase the directions given in the passages to which we have referred - that if they were left in doubt on the totality of the evidence they should find the accused not guilty because the defence did not have to prove anything. 19. We are further fully satisfied that there was ample evidence on which the jury could properly convict of affray and, indeed, there is no appeal against the convictions on such counts. But does it follow that having so convicted of affray they must necessarily have gone on to convict of murder because, as the learned judge put it, the two charges went hand in hand so as to stand or fall together? We think not: for the reason that whilst there was in each case a direct admission of participation in the affray, once the charge of murder came to be considered, there being no evidence as to who inflicted the fatal injuries, common intention loomed large for the consideration of the jury. Unfortunately, however, as we see it, intention - though a question of fact - was not adequately left to the jury by the learned judge, but was actually withdrawn from them. 20. Mr. Cheung's complaint as to this arises from a passage of the summing-up of the learned trial judge, which is in these terms:-
It is said by Mr. Cheung that in that passage the judge made three assumptions, namely:-
21. It is said that those assumptions were issues of fact which should have been left to the jury and that, in effect, the learned trial judge, in making those assumptions, usurped the functions of the jury. 22. That passage, undoubtedly, does appear to make certain assumptions of fact which were matters for the jury. We consider, however, that the first two of the alleged assumptions were cured by the learned judge in his next passage where he went on to say:-
23. This, we consider, made it clear to the jury that they could only convict of murder if they were completely satisfied that the attack took place in the manner described by the eye-witnesses and that each of the defendants took part in the attack in just that manner. 24. There remains, however, the question of intention, unquestionably one of fact for the jury. Unfortunately, although the learned judge cured his apparent assumptions (or findings) of fact in regard to the appellants forming part of a gang and joining in the attack upon a smaller number of unarmed persons, he never retracted from his statement that the intent must have been to cause "at least serious harm". This was a finding of fact contained in a paragraph which began with a direct refusal to consider what the position in law would be if the intention of the gang or anyone in it were to do something less than serious bodily harm to the victims. As such it was a usurpation of the function of the jury in regard to intention, which issue was simply never left to them. It is conceivable, though not probable, that the appellants, or one or more of them, might have had an intent to do some harm not amounting to grievous bodily harm - but that was a matter for the jury. 25. We have considered whether it is open to us to say that looking at the matters broadly, the judge's emphatic assertion as to intention must have been right, so that no reasonable jury, properly directed, could have come to any other conclusion and that therefore, the proviso to s.81(2) of the Criminal Procedure Ordinance could properly be called in aid. In the face of a finding of fact by the judge so very relevant to the verdict we do not consider that course is open to us (see John West(1)). 26. The next point taken by Mr. Cheung was that the defence put forward by the defendants was not adequately put to the jury. This particular submission has also caused us a good deal of anxious consideration. The case put forward by the defendants is summarised and analysed by the trial judge at pages 5, 6 and 7 of his twenty-one page summing-up. It is undoubtedly true to say that the version of events as put forward by the defendants was not analysed by the trial judge in a manner favourable to the defendants and the learned trial judge, in the expressions used by him, has not attempted to conceal his palpable and cynical disbelief of their version of the events. It has repeatedly been said that a trial judge is perfectly entitled to express his own views - and to express them fairly forcibly - to a jury so long as he puts the case to the defence both fairly and adequately and makes it abundantly clear to the jury that the assessment of the evidence and the credibility of the witnesses is essentially and exclusively a matter for them and for them alone. It must surely be true to say that the story told by each of the defendants as to the chain of events which led to him being present at the scene in Fife Street where the killing and wounding undoubtedly occurred, the reasons given by them for their return to the Cheung Hing Building and the premises of Wong Keung, and their accompaniment of Wong Keung to the hut in the New Territories where they remained for four days before they were arrested by the police, together with their denial of any participation in, or prior knowledge of the attack upon the deceased and the wounded prosecution witnesses, must have strained the credulity of any reasonable person listening to their account of the events. Although it is true that the trial judge narrated, in condensed form, their version of the events in expressions which were unfavourable to the defendants we are satisfied that their defence, such as it was, was adequately and fairly put before the jury for their consideration and that the jury were left in no doubt as to what was that defence. The trial judge, both in his opening remarks to the jury and in the concluding passages at page 20 of the summing-up, made it clear to them that the facts were for them, and for them alone, to decide and determine and that before they could convict the defendants, or any of them, of all, or any, of the offences charged, they must first be satisfied beyond reasonable doubt that those offences had been proved to have been committed by: those defendants. 27. We are unable to agree that the defence was not adequately put to the jury. 28. However, having regard to what we have said as to the direction on intention leave to appeal is granted in the case of each appellant and, following the normal practice of this court of treating the hearing of the applications as the hearing of the appeals themselves, the appeal of each appellant on his conviction for murder is allowed and the sentence in respect of each of those convictions set aside. 29. No sentences having been passed by the learned trial judge in respect of the convictions on the counts of wounding and of affray, it now falls to this court to impose such sentences. But we will hear counsel in mitigation. Representation: Oswald Cheung, Q.C. & D. Cheng (Helen A. Lo & Co.) assigned for 1st & 2nd Appellants. Oswald Cheung, Q.C. & R. Tang (Ngan & Wong) assigned for 3rd Appellant. Eric Li, C.C. for Crown/Respt. (Judgment of the Court delivered by President) (1) 4 C.A.R. 179 at 180. |