Wong Yik-fun and Others v. The Queen
Read the full judgment text of CACC 1084/1979 on BabelCite. This Court of Appeal judgment was delivered on 23 June 1980.
1. The deceased, a professional gambler, was killed in what has been referred to as a "corridor" in the New Paris Restaurant in Tsim Sha Tsui. He had met there with some associates and they had dined in what was referred to as the V.I.P. room situated near the end of that corridor.
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CACC001084/1979
----------------- Coram: Leonard, J.A., Addison & Garcia, JJ. Date of Judgment: 23 June 1980 ----------------- JUDGMENT ----------------- Leonard, J.A.: 1. The deceased, a professional gambler, was killed in what has been referred to as a "corridor" in the New Paris Restaurant in Tsim Sha Tsui. He had met there with some associates and they had dined in what was referred to as the V.I.P. room situated near the end of that corridor. 2. At about 11.00 p.m. that restaurant was visited by the four appellants and the first accused and the deceased was brought out into the corridor by the third appellant, WONG Wing-tim (Ah Tim) who was also a gambler to whom the deceased was indebted. There he was savagely killed. 3. Apart from two abrasions which might have been inflicted by blows from the handle of a knife the deceased suffered (a) a cut wound cutting tendons to the fingers and the wrist bones; (b) a cut wound 95 mm. long on his left shoulder exposing arm bone and (c) nine stab wounds - one corner sharp and others squarish including two through and through stab wounds on neck, one on left collar bone cutting the bone, one on right upper chest near arm pit, one on right upper back into back of the lower lobe of right lung, one right chest near back penetrating liver, one right middle back and one right upper thigh. At least two knives different in shape were used in inflicting these wounds. 4. Basically it was a simple case but it was a hard-fought and lengthy trial which started on the 10th September, 1979 and finished on 16th November, 1979. There was a lengthy voir dire as to the admissibility of statements necessitating the examination of twenty-five witnesses. 5. Various statements made by the several appellants were admitted in evidence. These established that all the appellants were present at the restaurant at the material time. Of five who entered as a body, one, the first accused was acquitted. It is clear therefore that although questions of self-defence, provocation and lack of the specific intent necessary for murder were left to the jury the essential question facing the jury was the degree of participation of each of the appellants in the actions as a result of which the deceased died. 6. The summing-up was perhaps unduly long (1½ days). In so far as this was a fault it was attributable to the length of the trial proper in the course of which twenty-eight witnesses were called by the Crown. Only one of the appellants (the third) gave evidence. As many of the witnesses called were on the fringe of the underworld in that they were in one way or another connected with illegal gambling and as various of them were inconsistent in their evidence and in statements they had made to the police the trial judge thought it desirable to examine in considerable detail the inconsistencies arising. 7. I feel I may say that counsel for the appellant must have found it difficult to levy criticism at the summing-up on any ground other than its length. For it was most favourable to all the accused. Miss Toh for the third and fourth appellants very properly told us that as counsel she could find no specific valid grounds of appeal. She contented herself with putting forward points which she was instructed to raise by her clients. I will deal with these later. 8. There were a number of small errors in the summing-up. All except one of these (with which I will deal later and which was clearly a slip of the tongue and must have been understood by the jury so to be) were in favour of the appellants. 9. The main brunt of the appeals of the first and second appellants was that their convictions were unsafe and unsatisfactory and in view of this I must go into the evidence at some length. 10. Apart from the cautioned statements of the appellants, the important evidence for the Crown came from the three witnesses whom I have already mentioned. WONG Kam-shing alias Wo So Shing whom I will call "Wong"; LEE Kai-chung otherwise "Shanghai Chai" and NG Kam-wah. Before considering their evidence I think I can most usefully set the scene by referring to the various cautioned statements made by the appellants. 11. The first appellant was arrested some eleven days after the murder. He made a lengthy statement which was admitted in evidence after a voir dire. It has not been suggested before us that it was improperly admitted. It tells how on the late afternoon of the 9th December the first and third appellants met and of their peregrinations in search of a person named Ngau Ching Leung who was indebted to a gambling school run by the third appellant and of their boarding a car driven by Wong at a fruit stall run by a man called Ah Cheung in Temple Street near the junction of Jordan Road when Ah Cheung handed a packet to somebody in the car. The statement tells of calling at various restaurants in Tsim Sha Tsui area and of the collection of gambling debts and of the eventual visit to the New Paris Restaurant. It says:
12. The second appellant surrendered himself to the police accompanied rather strangely not by his solicitor but by counsel. He said he had gone to the New Paris Restaurant by taxi and that he entered the restaurant and there he saw
13. A statement made by the third appellant is a remarkable document. It contains a full confession to the murder. After indicating the nature of the quarrel between the deceased and himself it continues:
14. In reply to the formal charge of murder he said:
15. The trial judge told the jury that they should view the killing as not having been planned but it is to be observed that at the commencement of his statement the third appellant had this to say:
16. The fourth appellant's statement tells of his having a meal and joining the third appellant in the car driven by Wong and of their going to a fruit stall in Temple Street where Ah Tim picked up something. He tells of the visit to the restaurant and says:
Later in the statement he says:
17. Wong's evidence, as the driver of the car, was of considerable importance. 18. It was to the effect that his car had gone to the fruit stall at Temple Street and Jordan Road on five occasions that evening; firstly, to pick up a plastic bag containing he said he knew not what; secondly, to return that bag to the proprietor of the stall; thirdly, on the instructions of the third appellant to get it again; fourthly, to enable the third appellant to get "small stuff" in addition to "big stuff" which was already in the car and fifthly, to return the plastic bag to the fruit stall. He said that on the fifth occasion he discovered for the first time that the bag contained knives "big stuff" i.e. large knives. A bag ultimately found in the fruit stall contained knives which were apparently similar if not the same knives that had been in that bag early in the evening. If the plastic bag handled by Wong contained those knives we do not think it would be possible for anyone handling that plastic bag not to know that it contained knives. 19. It was Wong's evidence that in the car at a time when there was discussion about "small stuff" and "big stuff" (by which terms it is clear that knives were meant) were all the appellants but not the first accused. He spoke of going to the Tai Ping Koon Restaurant in Mau Lam Street and getting there about 10.30 p.m. On arrival there he said he saw Ah Tim (the third appellant), Ah Foon (the first appellant), Ah Sau (the fourth appellant) and Ah Sau's younger brother (the second appellant). All four of them boarded his car and when his car reached somewhere near the Majestic Theatre, he heard someone asking if there was any "small stuff". He heard someone saying that there was none. At that time they were driving towards the New Paris Restaurant and he was asked to diverge so that Ah Tim could visit Ah Cheung's stall. He did so and dropped Ah Tim and Ah Tim rejoined the car after his visit. 20. Wong's evidence clearly called for the most careful scrutiny. He was in the witness-box for three days and was cross-examined at length. A matter which has given us pause is the fact that it was elicited that Wong gave a statement to the police on the 11th of December. He asked for police protection on the 12th. 21. In the statement of the 11th of December he does not place the first or second appellants in the car but does place a man called Long Chee. He made many statements. Indeed mention has been made before us of eight in all. He was cross-examined concerning these statements and I think it is sufficient for me to say that his evidence concerning them was somewhat unconvincing. On the evidence adduced it appeared that on that night the party in the car were looking primarily for a man called Ngau Ching Leung, although there was some evidence that money was collected from other debtors to the gambling syndicate and evidence that the deceased was a debtor. That they were looking for Ngau led to a somewhat unusual direction by the trial judge. He said this:
Later he said:
This was an extremely generous direction in so far at least as the third appellant is concerned particularly when one considers his statements. However that may be, it was the trial judge's view of the evidence in this respect that led him, we believe, to give to the jury a direction in most guarded terms as to the view they should take of the evidence of Wong:
There is little doubt but that when he gave this direction to the jury he was referring to the words of Archbold 40th Edition at para. 1425(a):
We think that the learned trial judge did not intend to stigmatize Wong as an accomplice. To do so would be to destroy his earlier direction that they should regard the attack on the deceased as unplanned. Strictly speaking, he should have left the question whether or not the attack was premeditated to the jury. Having done so he should have left to them the question of accomplice vel non and then have given them the direction as to corroboration. The general effect of his directions on these matters cannot have prejudiced the appellants and can only have been favourable to them. 22. In a number of places throughout his summing-up he refers to Wong as a person with a purpose of his own to serve. Once he does say that he was an accomplice. We think this was a slip of the tongue and must have been understood by the jury so to be. It happened when he was reviewing the first appellant's position rather than when he was discussing Wong's evidence in particular
(I would pause to observe that all other witnesses did not contradict it. Three witnesses who saw him at that juncture did not see the plastic bag - they did not say categorically that he was not carrying it. He himself in his cautioned statement said he was carrying it.) 23. As to corroboration for which they should look when considering Wong's evidence he gave the jury an even more generous (to the appellants that is) direction. He said there was no corroboration of the disputed parts of the evidence of Wong and that they were left with the position that he was a witness on whose evidence it would be dangerous to base a conviction. 24. As we have already seen there was abundant corroboration implicating the third appellant and the first appellant in their statements. The trial judge's error here was in considering that it was for disputed parts of a witness' evidence one should look for corroboration. I do not think that it is the correct approach. When one seeks corroboration one seeks in the classic words used in Baskerville(1)
25. When Lord Hailsham in D.P.P. v. Kilbourne(2) said:
We do not think that by that he intended to indicate that evidence of a matter independent of the evidence of the suspect witness could not be corroboration of it. At paragraph 1416 of Archbold 40th Edition it is said that:
Here, of course, we have ample evidence linking each of these appellants with the scene of the crime. 26. The trial judge stigmatizes Ah Cheung (the proprietor of the fruit stall at which knives were found which fitted at least three of the wounds found on the deceased and from and to which "small stuff" and "large stuff" was collected and "Large stuff" returned) as a person who had interests of his own to serve. Nowhere does he say he was an accomplice. No harm to the appellants could have resulted for the trial judge clearly indicated that Ah Cheung could not offer corroboration of Wong's evidence and he directed the jury that there was no corroboration of Ah Cheung's evidence. Indeed he was quite scathing as to his credibility. 27. Apart from somewhat over-generous directions the trial judge dissected the evidence of Ah Cheung and Wong with the greatest of care and the utmost attention to detail pointing to contradictions made by each of himself and by other witnesses of each. He bade the jury approach the evidence of Wong with "tremendous caution". He drew to their attention the discrepancies between the statement made by Wong on the 11th of December and those made by him later and the discrepancies in his evidence itself. In particular and this is important when one comes to consider the grounds of appeal of the second appellant the trial judge noted that in his statement of the 11th December Wong did not place the second appellant in the car when he drove to the New Paris Restaurant and did wrongly place Long Chee in it. 28. The only witnesses for the prosecution as to the part played in the restaurant by each of the appellants were Shanghai Chai who was as the judge pointed out "an eye witness who has the unfortunate feature of having a bad eye" and NG Kam-wah. The evidence of these two witnesses was also dissected with clarity, regard to the inconsistencies both in the evidence itself and with reference to earlier statements and other witnesses and every possible reason for rejection of their evidence in whole or in part was brought to the jury's attention. 29. In brief it was Shanghai Chai's evidence that he had been dining that night in the V.I.P. room with eight or nine others including the deceased discussing the prospective operation of a gambling den. He had left to consult his doctor about trouble he was having with his eye. He returned to find thirteen or fourteen others there. Then the third appellant came with four others - the first accused and the first, second and fourth appellants. The third appellant walked round the table in the V.I.P. room at which the party was dining and asked the deceased to come out, it having appeared that he had failed to find in the room the person he was primarily seeking. At first the deceased refused then he complied and after two or three minutes Shanghai Chai also went out. Neither the third appellant nor any of those with him had any weapons in their hands when they were in the V.I.P. room. When Shanghai Chai went out the deceased asked him if he knew where Ngau Ching Leung was. After some words had been exchanged as to Ngau's indebtedness the third appellant required the deceased to pay a debt of $1,400 and tried to take money from his pocket. The deceased hit the third appellant with his fist whereupon the third appellant asked for the "account book" and was handed a parcel. Thereupon Shanghai Chai shouted "Tim Kor don't" and went forward to separate them. He was stopped from doing so by the second appellant at knife point. The third appellant stabbed the deceased twice with the "parcel" which had been handed to him. A fight ensued in the course of which the fourth appellant struggled with the deceased and he said "the person who had handed the 'account book' to the third appellant joined in." The deceased fell and his assailants ran. As he passed the deceased the second appellant chopped him twice. According to the evidence of Shanghai Chai, this chopping was on the side of the body inconsistent with the medical evidence. 30. The second eye-witness saw little of the fight. He was NG Kam-wah. His evidence was to the effect that he had gone down to the street to get a car to go to see about setting up a gambling den. When he got downstairs he was asked to return to the mezzanine floor to ask if any of those at the party wanted a lift. He said he did so. As he returned and got to the corridor leading to the V.I.P. room he saw the three or four men he had seen earlier surrounding Ko Shing and having a chat with him. He did not hear what they were saying. He went to the V.I.P. room and asked those inside if anybody wanted a lift and on being told that they didn't he left again. He did not see Shanghai Chai when he came out. He walked by the deceased and those talking to him and walked to the top of the stairs. It is when he reached there that he heard noises behind him and he heard a man's voice shouting "Don't". He looked around and saw the several men struggling with Ko Shing. And he saw that one of them was holding a beef knife of about nine inches to one foot long wearing a jacket with stripes. He saw blood on Ko Shing's face. He looked as if he was in great pain and he fell. Then the three or four men walked downstairs. This witness' evidence was in part inconsistent with that of Shanghai Chai but they were agreed that a savage attack had been made on the deceased by at least four persons. The following passage from the transcript is perhaps most illustrative of this witness' attitude:
31. The witness was clearly seeking to emulate the ostrich. 32. Not only did the trial judge submit the evidence of these three witnesses to exhaustive scrutiny in manner most favourable to the accused he also considered it in relation to the appellants individually. 33. Of these the only one to give evidence was the third appellant and that was evidence suggesting and necessitating that the trial judge should leave to the jury the defences of accident, self-defence and provocation. All were left impeccably. 34. I turn to the grounds of appeal. The first ground of appeal put forward on behalf of the first appellant was that
I have already dealt with this question in some detail. It is true that at one stage the learned trial judge did say in so many words that WONG Kam-shing was an accomplice but as I have said this was in the context of the summing-up - when read in its entirety, clearly a slip. The trial judge was seeking to direct the jury on the lines of Prater's Case(3). 35. The second ground of appeal was
We do not consider that the general effect of the summing-up is tantamount to any such suggestion. 36. It is thirdly alleged that he
A careful examination of Shanghai Chai's evidence convinces us that although he may at times have been untruthful and unsatisfactory he was not a character whose evidence could be taken entirely from the jury. It was for the jury to decide what credit should be placed on his evidence and they were fully and ably assisted by the trial judge in that respect. 37. The final ground of appeal is that
and in that other matters suggested that the first appellant had not joined in the attack on the deceased. 38. The first appellant's statement to the police to the effect that he was present and that he was in the car at a time when there was discussion as to the presence in the car of "small stuff" and "large stuff" leaves us with nothing in the nature of a lurking doubt such as that existing in Cooper's Case(4) and we do not think the other matters urged in this ground of appeal give rise to any such doubt either individually or collectively. 39. The grounds of appeal on behalf of the second appellant were put before us with clarity and ability by Mr. Sparrow. He suggests also that the verdict was unsafe and unsatisfactory, in that the evidence of Shanghai Chai to the effect that he had seen the second appellant hold a knife pointing towards him during the initial course of the incident was not supported by other eye-witnesses of the incident or by other persons present at the V.I.P. room. I have already dealt with the evidence of the other eye-witness NG Kam-wah. In his ostrich-like approach to the whole matter he could easily have overlooked such an incident. 40. It is to be noted from the photographs that the entrance to the V.I.P. room is not at the very end of that corridor and at the time when he says that he was threatened by the second appellant Shanghai Chai may have been not immediately outside the V.I.P. room and not immediately visible to those inside. 41. There is more substance in the second of Mr. Sparrow's grounds i.e. that the allegation as to role played by the second appellant was not made to the police by the witness until the 25th December 1978 and that in earlier statements he had made no such reference. This the trial judge dealt with exhaustively. It must have been in the mind of the jury when they considered the evidence of Shanghai Chai. 42. Again Mr. Sparrow complains that the evidence of Shanghai Chai to the effect that the second appellant had used the knife to chop the deceased did not accord with the evidence of other persons. But there was no witness who might have seen this occurring other than Shanghai Chai. By that time NG Kam-wah was standing on the staircase looking at the column, looking studiously away from the incident. This, too, is subject to the criticism that the allegation was not made to the police until the 25th of December. This again was dealt with fully by the trial judge. 43. The suggestion that LEE Kai-chung had been threatened by members of the same triad society as that to which Ko Shing belonged and had been interfered in relation to the evidence he should give was dealt with also. 44. All the matters indeed of which complaint is made were dealt with by the trial judge and must have been considered by the jury. They do not individually or collectively raise in our minds any doubt as to the guilt of the second appellant. 45. The points which Miss Toh was instructed to raise are not matters which need detain me long. 46. The third accused was a self-confessed murderer and the fourth at a pre-arranged signal gave him the "account book" which he must have known contained a knife. 47. We have no doubt on the case presented to us that each and every one of the appellants was properly convicted of the offence of which he was charged. All relevant matters were left to the jury. There were some misdirections but such as they were were favourable to the appellants. Assuming that the judge's direction to the jury to the effect that the Crown's case was that the murder was unplanned was correct (and we think the question whether or not it was planned was one for the jury and that the direction that they should treat it as unplanned was over favourable to the appellants) the slip made by the trial judge when he referred to Wong as an accomplice cannot have had the effect of contradicting in their minds that direction. Even if it could and even assuming that the jury could have been affected by it we would unhesitatingly apply the proviso. These appeals are therefore dismissed. Representation: Mr. John Mullick (K.Y. Woo & Co.) for first appellant. Mr. David G. Sparrow (Raymond Tang & Co.) for second appellant. Miss Esther Toh (Director of Legal Aid) assigned for third and fourth appellants. Mr. N Adams, Crown Counsel, for Crown/respondent. (1) (1916) 2 K.B. 658. (2) (1973) 57 Crim. App. R. 381. (3) (1960) 44 Crim. App. Reports 83 (4) 53 Cr. App. R. 82. |