So Ping-kuen v. The Queen
|
CACC000574/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 574 OF 1970 -----------------
Coram: Rigby, C.J., McMullin & Pickering, JJ. Date of Judgment: 20th March, 1971. ----------------- JUDGMENT ----------------- 1. The appellant, a youth aged 16, was indicted with the murder of CHU King-cheung, a youth aged 18. There was a second count on the indictment of wounding with intent, the particulars of the charge being that the appellant, on the same day, unlawfully and maliciously wounded CHU King-cheung, with intent to do him grievous bodily harm. 2. The case for the prosecution, as is unhappily so frequently the case, depended very largely upon a cautioned statement made by the appellant to a detective police constable - a statement, the contents of which, and the making of which, was vigorously challenged by the appellant at the trial. There was, however, the additional evidence of a statement made by the deceased himself which was admitted as a dying declaration. 3. The brief facts of the case were that at about 2 p.m. on the afternoon of the 24th May, the deceased left his home at Shek Kip Mei Resettlement Estate in order to go for a swim. He was, indeed, attired in his bathing costume when he left. At about 2.45 p.m. that afternoon, in consequence of information received, his mother found him lying on the floor of the third floor of Block 3 of the Shek Kip Mei Resettlement Estate. He was lying in a pool of blood. There were a number of wounds on his body and he was taken to the Kwong Wah Hospital in a dangerous condition. An emergency operation was there carried out, but he died on the morning of the 28th May. No less than nine stab wounds were found on various parts of his body, apart from other abrasions and bruises. However, the cause of death was certified by Dr. Ong, a pathologist of well-known reputation, who carried out the post-mortem examination on the body at mid-day on the 29th May, to be due to a depressed fracture on the left side of the skull. Dr. Ong said that that injury was consistent with being caused by a blunt instrument or by a fall. 4. The appellant himself lives at Shek Kip Mei Resettlement Estate. He was arrested at a resettlement estate at Aberdeen on the 27th May. His explanation for being there was that he had gone there for a holiday to stay with a friend. At the resettlement estate, under caution, he recorded the following statement in the notebook of D.P.C. 2347, CHOI Yuk Choi. It is relevant to set out not only the statement recorded by the appellant in the constable's notebook but also the preamble to that statement, as recorded by the constable himself and read out to the appellant. They are in the following terms:-
At that time the youth CHU King-cheung was still alive and in hospital. At 17.05 hours on the afternoon of the 24th May, Detective Corporal 2492, LIU Kam-hoi, at the bedside of the victim, recorded a statement made by the victim. That statement was admitted by the trial judge as a dying declaration and was before the jury for their consideration. The statement itself, together with the preamble as recorded by the corporal in his notebook, are as follows:-
5. The defence put forward by the appellant at the trial was an alibi. He said not only that he had no knowledge of the incident but that he did not even know the deceased. 6. The case for the prosecution, from beginning to end, as put forward - and very vigorously put forward - by Crown Counsel was on the basis that this was an assault carried out by a number of persons with a common intention; and it was an assault which was carried out to the knowledge of each and every one of those persons with offensive weapons and with the intention, at the very least, of causing serious bodily harm; that the intention of the appellant, as evinced not only by his own cautioned statement but also by the dying declaration of the deceased, was to cause, at the very least, grievous bodily harm; and that the fact that the death of the deceased may have been directly caused by a blunt instrument, or even by a fall, did not detract from the common purpose and intention of the attackers to cause, at the very least, serious bodily harm, and that the accused was accordingly guilty of murder. 7. The jury acquitted the appellant of murder but convicted him on the second count of the indictment of wounding with intent to cause grievous bodily harm. 8. Mr. Asome, counsel for the appellant, with complete logic has contended that the two verdicts are inconsistent with one another and that the jury, having acquitted the appellant of murder, should also have acquitted him of wounding with intent to cause grievous bodily harm. In summing-up to the jury, the trial judge, at page 2 of his Summing-up, correctly stated the law in these terms:-
9. Mr. Asome most logically argues that the learned trial judge, having correctly directed the jury that murder was the intention either to kill or to cause grievous bodily harm, the jury, upon that direction, having acquitted the appellant of murder, it was not open to them, upon the same facts, to find the appellant guilty of wounding with intent to cause grievous bodily harm. If it was the intention of the appellant, in common with other assailants, to cause grievous bodily harm, and the appellant died as a consequence of that common intention and that common assault, then the appellant was guilty of murder even though he may not have been the person who struck the fatal blow. In support of his argument, Mr. Asome has referred to the case of R. v. Thomas(1). 10. That was a case where the appellant had been convicted of wounding with intent to murder. Subsequently, the injured person died and the appellant was indicted upon a charge of murder. Upon that indictment the appellant unsuccessfully set up a plea of autrefois convict. That plea was overruled and the appellant was convicted of murder. Upon appeal he again raised the contention of autrefois convict. In the course of that argument (at page 36 of the report), the appellant's counsel was asked:-
Counsel for the appellant answered in the negative. In the course of its judgment, the appellate court, in referring to this matter went on to say:-
11. Mr. Asome relies upon this passage. We would only make this comment: at the time that appeal was argued - in 1949 - it was the accepted practice that indictments for murder should not include any count in respect of other offences. That practice was expressly rejected by the House of Lords in the case of Connelly v. D.P.P.(2) in the course of which it was indicated that the prosecution should combine in one indictment all the charges which it intends to prefer. 12. Mr. Stratton, for the Crown, has told this court that the reason why the second count was added - upon his direction - was for the very reason that the cause of death was given by Dr. Ong as due to a depressed fracture on the left side of the skull caused by a blow with a blunt instrument or, possibly, by a fall. The evidence against the appellant consisted solely of his cautioned statement and the dying declaration. Upon either, or both, of these statements, if accepted and believed, there was ample evidence to establish that the appellant had in fact stabbed the deceased. But as there was no evidence to show that the deceased had immediately fallen down as a direct result of the stabbing (as stated by the appellant in his cautioned statement) or the stabbing and beating (as stated by the deceased in his dying declaration) and as there was no evidence, therefore, to negative the possibility that the particular injury causing death might not have occurred at some later time, by an occurrence wholly independent of the stabbing and/or beating at the hands of the appellant himself or at the hands of the appellant and others with him, he, Mr. Stratton, thought it proper to include a second count for wounding with intent, such count being based on the appellant's own statement and/or the dying declaration. That seems to this court to be an entirely sensible argument. But it is significant that the purpose and intention of the second count was at no time explained to the jury by Crown Counsel conducting the prosecution. On the contrary, from beginning to end the case for the prosecution was pressed with remarkable vigour by Crown Counsel on the sole basis of murder. Indeed, in his final address to the jury, Crown Counsel apparently deemed it to be part of his duty to address the jury in these words:-
13. In the firm view of this court, if it is considered by these responsible for drafting an indictment on behalf of the Crown that in addition to the charge of murder there should be added what, in effect, amounts to an alternative charge on a lesser count, then it is the duty of counsel conducting the case on behalf of the Crown to explain to the court, and to the jury, why such a lesser or alternative count has been included in the indictment, and counsel is failing in his duty both to the court and to the jury if he does not do so. 14. In this case, it is manifest that Crown Counsel appears to have concerned himself, from beginning to end, solely with pressing for a conviction for murder - and we deliberately use the word "pressing" - without any attempt to explain the purpose and intention of the second count of the indictment. 15. The grounds upon which a jury may reach their ultimate verdict must often remain a matter for speculation, and only too often cannot be explained by any method of logical reasoning. But it is, we think, an accepted principle that if there are reasonable and satisfactory grounds upon which it can be said that a jury has reached its verdict, that verdict ought not to be disturbed. In the present case, apart from the explanation put forward by Mr. Stratton, we think that there is another ground, which is both reasonable and logical, upon which it can be said that the jury may have reached its verdict. The jury may well have accepted the cautioned statement of the appellant as true and rejected the so-called dying declaration of the deceased. If one accepts the statement of the appellant, it is clear beyond doubt that that statement contains an unequivocal admission by the appellant that he stabbed the deceased with a scout knife. That statement was made by the appellant at a time when the deceased was still alive. Bearing in mind the expert opinion of Dr. Ong that death was due to a blow on the head with a blunt instrument - or to a fall - the jury may well have taken the view that although they accepted the appellant's own statement that he stabbed the deceased they rejected the so called dying declaration and, that being so, although they were satisfied from the appellant's statement that he stabbed the deceased - and from the very fact of stabbing he intended to cause him, and did cause him, serious bodily harm - there was no evidence that he was responsible, or in any way connected with, the blow which caused the death of the deceased. In those circumstances, whilst they acquitted him of murder they found him guilty of wounding with intent to cause grievous bodily harm. Looked at in that light, in our view the verdict of the jury was both a logical and a reasonable one, and one that this court ought not to disturb. 16. For these reasons we are satisfied that the application for leave to appeal against conviction must be dismissed. Representation: M. Asome assigned for Appellant. Stratton, D.P.P. for Crown/Respondent. (1) (1950) 1 K.B. 26. (2) (1963) 48 Cr. App.R. 183. |