R. v. Lai Sai Lam

CACC000547/1992

IN THE COURT OF APPEAL

1992, No. 547
(Criminal)

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Coram: Hon Yang CJ, Penlington and Bokhary JJA

Date of hearing: 7 December 1993

Date of judgment: 21 December 1993

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant was convicted of the murder of Mr WONG Yun-chuen (count 3), and acquitted of the murder of Wong's sister Madam WONG Kang-tai (count 2), and her husband Mr FUNG Siu-ming (count 1). He sought leave to appeal against his conviction. Having considered submissions and the authorities, we allow the application, treat the hearing of the application as hearing of the appeal, and dismiss the appeal.

2. The evidence against the applicant came from an accomplice called CHU Chih-hong ("Chu") and the applicant's cautioned statements.

3. The accomplice in his evidence gave a description of how he, the applicant and two other accomplices named in the indictment, namely, CHAN Wing-keung ("Chan") and AU YEUNG Kam-wah ("Au Yeung"), murdered the three deceased.

4. The defence case was that the applicant was not at the scene of the murder, nor was he with Chu or any of the killers named in the indictment on the day of the murder. The applicant alleged that Chu substituted him for the role played by his friend Au Yeung. As to the cautioned statements, the applicant maintained that these were obtained by violence, were a concoction of the police, and were not his statements.

5. The learned trial judge, in his summing up to the jury, stated that the only evidence capable of amounting to corroboration of the accomplice Chu's evidence was what the applicant said in the cautioned statements. The judge said, correctly: -

" In the cautioned statements the defendant denies taking part in the actual killings, but he admits his presence at the scene when the victims were murdered. If you find that the statements are reliable confessions you may convict the defendant of murder on the basis that he aided and abetted the others who committed the murders by encouraging them in their crime. To prove aiding and abetting by encouragement, the prosecution must prove that the defendant intended to encourage, and deliberately did encourage, the other men to commit the offence. His mere voluntary presence at the scene is not in itself enough ......"

6. In answer to questions asked by the foreman on behalf of the jury, the judge explained again the meaning of aiding and abetting and the use which they could make of the cautioned statements. He also repeated his direction on accomplice's evidence and corroboration.

7. In finding the applicant not guilty of the murders of FUNG Siu-ming and his wife WONG Kang-tai, but guilty of the murder of WONG Yun-chuen, the jury must have rejected the evidence of the accomplice Chu and relied on the applicant's cautioned statements. It is therefore necessary to examine those statements a little more closely.

8. This was what the applicant said in the cautioned statements.

9. At about 10 p.m. on 29 May 1987, Chu said to the applicant and Au Yeung that someone owed Chan money, and Chan asked Chu to ask them (the applicant and Au Yeung) to help in collecting the debt. Then Chu took the applicant and Au Yeung to a cooked food stall where he introduced the two men to Chan. Chan told the two men he was looking for a man called Ah Ming (i.e. the deceased FUNG Siu-ming) for repayment of the debt, and he telephoned Ah Ming to arrange a meeting the same evening.

10. The meeting took place outside the building where Ah Ming lived. After an altercation between Ah Ming and Chu and Chan, Ah Ming and the four men, namely, the applicant, Au Yeung, Chu and Chan went up to Ah Ming's apartment at Sun Ho Building, Sai Yeung Choi Street North, Kowloon, where the quarrel between Chu, Chan and Ah Ming continued. The applicant and Au Yeung were told to check the premises to see if there were any other persons there. They found Ah Ming's wife (i.e., the deceased WONG Kang- tai) sleeping in the bedroom, and she was asked to go to the living room. After a short conversation with the men about the debt, the wife was taken back to her bedroom by the applicant and Au Yeung who were told to watch her. Chu and Chan hit Ah Ming in the presence of the wife, but she did not appear to be concerned. Having taken the wife into the bedroom, the applicant and Au Yeung closed the bedroom door. Some minutes later, Chan knocked on the bedroom door, and the applicant and Au Yeung took the wife to the living room, where they saw Ah Ming who had his hands tied behind his back. When Ah Ming shouted for help Chan and Chu beat him. Chan told Chu to tie up the wife also. Chu and Au Yeung then tied up the wife and pushed her back into the bedroom. She was "very co-operative" and offered no resistance.

11. Then Chan told the others to watch Ah Ming and his wife whilst he went downstairs to fetch something. Four or five minutes later Chan came back with some workman's gloves, and Chan and his men put the gloves on. Chan also took out a roll of packing adhesive tape and told Ah Yeung to bind the wife's hands, which Au Yeung did. At the time, the applicant was watching, and he also noticed that Chu and Chan were tying up the hands and legs of Ah Ming. The applicant was instructed to guard Ah Ming and his wife. He saw Au Yeung, Chu and Chan searching the premises but they found nothing. Chan became very angry and said to Ah Ming, "Now, I'll go down to the street for several five minutes so as to give time to Ah Ming for consideration. If you still don't tell when I return, I'll fix you up". The applicant understood those last few words to mean Chan would kill Ah Ming. He then told his three companions to watch Ah Ming and his wife and went out of the premises.

12. About half an hour later Chan returned and again asked Ah Ming for money, threatening to "fix him up" if he did not tell where his money was. At this point the applicant and Au Yeung "dissuaded" Chan "to leave the matter at that and not to force Ah Ming any more as Ah Ming might really has (sic) no money". Chu and Chan however did not believe Ah Ming. Chan said, "Tonight all of us have got the heads wet (i.e., that they ought to continue as they had already beaten Ah Ming). Tonight we ought to fix up Ah Ming. If we don't fix him up then Ah Ming sure will approach us for revenge in the future". At the time the applicant was "stupefied" and said nothing. Then Ah Ming was forced to swallow some crushed pills in a glass of brandy, with Chan forcing the liquid into Ah Ming's mouth and the three other men, including the applicant, pressing Ah Ming firmly. After Ah Ming had fainted, the four men released their hands. On the suggestion of Chu, Chan spread several sheets of cling-film on Ah Ming's face so he could not breathe, and he hooded Ah Ming's head completely with a plastic bag. After touching Ah Ming's breast, Chan declared their victim dead.

13. The next thing which happened was that Chan said they had to "fix up" the wife. The applicant then said that he could not do that, nor did he want to see. About five minutes later, Chu and Chan came out of the room and said the wife was dead.

14. At this time WONG Yun-chuen came in to the apartment, and Chan suggested that they must "fix him up" as well.

15. At this point of the cautioned statement, the applicant described how he and the others proceeded to kill Wong by binding his hands and covering his mouth and eyes with adhesive tape and covering his face with cling-film. The murderers then took certain measures in an attempt to destroy the evidence, the details of which need not be gone into here.

16. In the present appeal, three grounds were argued, viz.: -

(1) That there was a material irregularity at the trial of the applicant, in that the learned trial judge failed to re-direct the jury on all the key points of law when requested to do so by the jury.

(2) That the verdict of the jury on count 3 (guilty) was inconsistent with the verdict on counts 1 and 2 (not guilty).

(3) That the conviction was unsafe and unsatisfactory.

17. Mr Marash, counsel for the applicant, argued that the judge misdirected the jury when he said that the applicant denied taking part in the actual killings, but admitted his presence at the scene of the murder (supra). There was, Mr Marash submitted, clear evidence that in the applicant's presence Chan threatened to kill Ah Ming, after which the applicant took an active role in subduing Ah Ming so that he could be killed. The jury acquitted on count 1 thereby rejecting joint enterprise, thus the jury could not have accepted that the applicant had made the statements of his own free will. The applicant's confession in respect of count 3 was no more a confession than that in respect of count 1, yet the jury convicted on count 3. The verdicts on counts 1 and 3 could not be rationalised on the basis of corroboration.

18. Mr Marash also criticised the manner in which he dealt with the jury's questions. At the end of the summing up, the foreman indicated that some members of the jury were still not "a hundred percent clear on the points of law". The judge asked what aspects of the law the jury needed assistance on, whether it was on accomplice, corroboration or on burden of proof. The foreman said in reply, "I think the point about corroboration was one of the key points". The jury then proceeded to repeat his direction on corroboration of an accomplice's evidence. It was submitted by Mr Marash on behalf of the applicant that the jury was not clear on a number of points, but the judge re-directed on corroboration only, without any more being said about burden of proof, joint enterprise or the use the jury could make of the applicant's statements. The foreman was not given the benefit of raising other points on which the jury was not clear about.

19. The case of R. v. Rafigue [1973] Crim LR. 777 was cited in support of the proposition that the judge has a duty to clear up any doubts the jury might have. That case concerns a question asked by the foreman revealing doubt and confusion. For reasons which will become apparent, we do not think this authority assists us.

20. We do not think there is anything in the criticisms of the judge's summing up and of his way of dealing with the jury's questions. Apart from those criticisms, it is admitted on behalf of the applicant that the summing up was impeccable, as indeed it was. The first ground of appeal presupposes that the jury would not have sought, or was not aware that they could seek, further directions on the law even though they did not understand certain aspects of the law other than the issue of corroboration. We do not think the behaviour of the jury as shown in the record lends support to this ground.

21. In reply to the second ground of appeal, leading counsel for the Crown, Mr Cross, suggested that the jury must have given the applicant the benefit of the doubt on count 1 but not on count 3, as the evidence on count 3 was far stronger. It was stressed that the evidence on count 1 pointed to the applicant's attempt to dissuade Chan, and that he was "stupefied". Though he took part in pressing Ah Ming down but he released the victim after he fainted, and took no further part in whatever happened afterwards. The jury could have taken the benevolent view "that the applicant was no more than an observer, and that when he pressed Ah Ming down he did not know he was participating in a killing. However, the jury might have taken the view that they could no longer take a benevolent view of the applicant's conduct after Ah Ming and his wife had been killed. The applicant actively assaulted Wong knowing that two persons were already dead.

22. Mr Marash countered Mr Cross' submission by his contention that there was nothing to distinguish the evidence on count 1 and that on count 3. He stressed that Chan had made a number of threats to "fix up" Ah Ming (i.e., to kill Ah Ming) before the actual killing.

23. The cogency of Mr Marash's arguments is evident. However, the applicant's statements point to a killing of the two men by placing cling-film over their faces so as to prevent them from breathing. In spite of the threats to fix Ah Ming up, it was just conceivable that the jury was not satisfied beyond all reasonable doubt that the applicant, by assisting in forcing Ah Ming to swallow the brandy with crushed pills in it, knew he was actually participating in a killing. There was nothing in the applicant's statements to show whether he knew what the pills were, save that Ah Ming fainted after swallowing the brandy with the crushed pills in it. It was after Ah Ming had fainted that a suggestion was made to place cling-film on his face to prevent him from breathing. It therefore seems clear from the narrative that the intention was to kill by preventing Ah Ming from breathing. By the time the third victim Wong was attacked, Chan's intention to kill must be apparent to all his companions. It is thus on this basis that the evidence on count 1 and the evidence on count 3 could legitimately be distinguished by the jury. The inconsistency of the jury's verdicts is more apparent than real. For the reasons given above we dismiss the second ground of appeal.

24. In the circumstances, we dismiss also the third ground of appeal.

Representation:

Mr Daniel Marash (M/s K C Man & Co) for Applicant

Mr I G Cross QC and Mr Patrick Loftus for Crown/Respondent