The Queen v. Leung Chi Fai and Another
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IN THE COURT OF APPEAL 1987 No. 170 BETWEEN THE QUEEN and LEUNG Chi-fai (D1) KEUNG Siu-ming (D2) Coram: Roberts, C.J., Liu & Jones, JJ. Date: 20th August, 1987. ____________________ J U D G M E N T ____________________ Roberts, C.J. - 1. LEUNG Chi-fai (“D.1”) and KEUNG Siu-ming ("D2") were charged together in the same indictment with the murder on 29th August, 1906 of PENG Shao-chiang. 2. D.1 appeals against his conviction for murder. D.2 seeks leave to appeal against the sentence of five years' imprisonment imposed upon him after he had pleaded guilty during the course of the trial to the lesser offence of manslaughter. 3. At about 2.15 in the afternoon of 29th August, 19b6, at the Yuen Chau Kok Temporary Housing Area at Shatin, a man called PENG Shao-chiang was attacked by a group of young men carrying knives. As a result of this attack he suffered a number of severe injuries from which he died later that afternoon. 4. There were two eye-witnesses to this attack. 5. LAM Kam-kei (“P.W.1”), who was a friend of the deceased, gave evidence to the effect that when he was on his way to the market that afternoon, he saw the deceased standing about 45 feet away from him. He walked towards him but, when he was about 10 feet away, he heard somebody shout “That’s him” and saw the deceased running away chased by four men, each of whom was carrying something in his hand. He saw one of the men raise his hand and chop at the deceased's shoulder. As the deceased "began to fall, Lam ran away to look for the deceased's wife. When he came back, the deceased was lying on the ground bleeding. He identified D.1 as one of those who were chasing the deceased. 6. The second witness was a 12 year old boy, KWAN Ho-lun (“P.W.2”), whose evidence was that he had emerged from a public toilet not far away, when he saw a man, who was naked from the waist upwards, running and being chased by four men. Like P.W.1, he saw a blow delivered at the left shoulder of the deceased. He identified D.1 as the man who struck the blow. 7. It is worth noting; in passing, that when examined subsequently by the pathologist, a severe chop wound was found on the left shoulder of the deceased. 8. At about the same time, a party of police officers was on duty nearby. Their evidence was that they saw a man being chased by four others, who were carrying knives. The Sergeant in charge of the party shouted “Police. Don't move” and the four men ran off in various directions. The Sergeant himself, having failed to arrest the man whom he was chasing, returned to the place where he had last seen the victim and found him lying on the ground. 9. Another of the police party chased and arrested a man who turned out to be D.1. The evidence of that officer is that D.1 was never out of his sight, from the beginning of the police chase until the moment of arrest. The police officer added that he saw D.1 throw away a knife, which was later retrieved and produced as an exhibit. When recovered, that knife was still in a paper sheath and there were no bloodstains on it. 10. It is not in dispute, and never was, that the victim, Peng, died as a result, generally, of the multiple wounds which he received and, in particular, from two severe stab wounds in the abdomen, either of which, in the opinion of the pathologist, could have caused death. 11. D.1 chose to give no evidence. There was, however, put in evidence by the prosecution, after a long voir dire, a statement which was made by D.1 after his arrest -
12. If the jury, having been properly directed about the approach which they should adopt to this statement, accepted it, then the issues remaining before them were very narrow ones. 13. A number of arguments were advanced with skill and persistence by Mr. Hoosen. His first criticism was that the Judge failed, in his summing-up, to deal adequately with the question of identification notwithstanding the long and careful examination by the Judge of the quality and effect of the identification evidence of P.W.1 and P.W.2 in relation to their identification of D.1 as one of those involved in the attack on the deceased, although in his statement, D.1 does not dispute that he was at the scene. 14. Counsel's criticism was ultimately a very narrow one. When advising the jury as to the proper approach to identification the Judge warned them as follows in two passages -
15. It was suggested that this was insufficient and that the Judge ought to have gone further and referred to the possibility that an honestly mistaken witness can also be convincing. 16. In a number of cases it has been emphasized by courts that the guidelines prescribed in R. v. Turnbull[1] are guidelines only and that they are not to be interpreted in an inflexible manner, or treated as if they were the words of a statute. 17. The essence of these guidelines, and the basic principle which they contain, is that there is a special need for caution when the issue turns on evidence of visual identification. 18. In this instance, the Judge delivered such a direction, both in general terms and by a careful examination of the circumstances of the identification. Indeed, he made it clear to the jury that, although it was a matter for them, he thought that the identification of D.1 as the person who struck the blows to the victim's shoulder was not strong. 19. We were also invited to say that there had been a serious misdirection in relation to the evidence of P.W.2, who was aged 12 at the time he gave evidence. We were referred to the case of R. v. Spencer[2], a House of Lords case, in which Lord Ackner, referring to the rule of practice requiring that a jury should be warned of the danger of relying on the sole evidence of an accomplice or of the complainant in a sexual case or on the evidence of a child, said -
20. In a later passage, Lord Ackner says -
21. This rule of practice was not followed in this instance. But it must be remembered that the identification of D.1 did not rely solely on the testimony of P.W.2. The evidence of P.W.1 was to a similar effect and corroboration, we should note, is not required in the case of evidence of identification. It was clearly open to the jury to accept the evidence of P.W.1 and of the admissions in D.1's. statement. 22. Some criticism was levelled at the reference by Crown Counsel in his opening and closing speeches, to lies which were said to have been told by D.1. 23. It is, of course, for the Crown to put the case as it wishes. If that is part of its case, there is no reason why it should not put this forward. In the end it is what the Judge says that matters, particularly when, as in this case, he has warned the jury that they are not to feel bound by what he or counsel have said. 24. It was suggested that some special direction should have been given by the Judge in relation to the suggestion that D.1 had told lies. Such a direction may be necessary if weight is to be given to the fact that a defendant has told two versions of events. No such special direction is required when what is in issue before the jury is the credibility of the version of events put by him during his trial, whether in evidence or in an admitted statement. 25. In this instance, D.1 gave no evidence, but there was before the jury the statement which he had made. It was for the jury to examine that statement and to decide to what degree they accepted it as correct and the extent to which they rejected it. No doubt, in this instance, that is what the jury did. 26. There was then said to be no clear direction as to when the common enterprise ended, it being suggested that this was terminated by the arrival of the police and that D.1 could not have been liable for the fatal injuries if these had been sustained at a later stage. Such a proposition depends upon an imaginative version of the facts put forward by counsel for D.1, both at the trial and before us. 27. It turns on the following evidence. P.W.1, Mr. LAM, saw the beginning of the attack on the deceased. He saw one blow to the left shoulder. P.W.2, the young boy, saw a similar blow to the left shoulder before he returned hurriedly to the toilet, though his view of the action may have begun at a slightly later stage than that of P.W.1. Shortly afterwards, the police appeared and the four men chasing the deceased dispersed in various directions, chased by the police, leaving the deceased lying on the ground. 28. The Judge summarized the argument as follows -
29. This alternative was put by the Judge squarely before the jury, not only once but on three occasions, in the middle of his summing-up and near to the end of it. It is not surprising that the jury rejected a version of events which depended upon one of the attackers, having been chased away from the victim by the police, returning within a minute or two to the scene and stabbing the man to death. 30. Somewhat allied to this argument was the suggestion that there had been an inadequate direction with regard to causation. In this argument WE see no substance. In a number of passages in his summing-up, the Judge tells the jury that they must be satisfied that D.1 was a party to the killing. In particular, he commented -
31. Finally, it was suggested that this was a conviction that was unsafe. This is an argument in which we can see no substance. Indeed, we think that it would have been surprising, if the jury had reached any other verdict than that at which they did arrive. 32. The appeal against conviction is therefore refused. 33. D.2 has sought leave to appeal against the sentence of five years' imprisonment which was imposed on him when he pleaded guilty to manslaughter. 34. The summary of facts, which he agreed to be correct, contained admissions that he went to the scene with the other attackers, that he knew that somebody was to be beaten up because of a dispute over the payment of a local bully fee, but that he did not know that the victim was to be chopped. He did not chop the victim himself, although he was present when the others did. 35. Manslaughter is, of course, so far as sentence is concerned, a highly variable offence. There are occasions on which courts, not infrequently, are able to deal very leniently with those found guilty of manslaughter. On other occasions, very long sentences of imprisonment are appropriate. 36. We were referred to a number of cases in which there could be said to be some degree of similarity with the facts of this case. 37. In R. v. PAK Ka-lun[3], a sentence of six years was reduced to one of four years where the appellant, carrying an iron pipe, played what the court regarded as a minor role in an attack which caused death. 38. It is to be noted, however, that one of the main reasons for the reduction appears to have been the view of the court that there was a degree of disparity between his sentence and that of one of the main offenders. 39. In R. v. CHENG Chi-man and Another[4], a sentence of five years' imprisonment was reduced to three years, in the case of a defendant who took part in an assault during which a fatal blow was struck with a wooden plank. That case was described by Yang, J.A. as more a misfortune than a cold-blooded manslaughter. That is not a view which we feel able to take in this instance. 40. The other case is a very recent one, R. v. LAM Hung[5], in which sentences of six years', five years' and three years’ imprisonment were imposed on young men who were convicted of manslaughter, when there had been a concerted attack with iron pipes. 41. I am informed that the sentence of LEE Bun, the one sentenced to five years, was reduced to four, again, largely because this court took the view that there was an insufficient differE:nce between that sentence than the one imposed on the person whom the court regarded as the principal offender. 42. We are unable to say that we think that the sentence of five years' imprisonment is manifestly excessive. 43. Accepting the facts, to which D.2 agreed, this is nevertheless a voluntary participation, although to a minor degree, by D.2 in a calculated attack on somebody for highly discreditable reasons, we see no reason to interfere with this sentence and the applicatin for leave to appeal against it is, therefore, refused. Mr. A.A. Hoosen (D.L.A.) for D.1 Mr. E. Laskey (D.L.A.) for D.2 Mr. G.J.X. McCOY, Senior Crown Counsel, for Respondent/ Crown Prosecutor [1] [1976] 3 All E.R. 549 [2] [1986] 2 All E.R. 928 [3] [1977] Cr. App. No. 1202 [4] [1986] Cr. App. No. 37 [5] [1986] Action No. 164 |
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