Case Document

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CACC000607/1989

IN THE COURT OF APPEAL

1989, No. 607
(Criminal)

BETWEEN

THE QUEEN

AND

LAI HUNG WAI

Applicant

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Coram: Hon. Sir Derek Cons, V. P., Clough & Penlington, JJ.A.

Date of hearing: 9 October 1990

Date of delivery of judgment: 9 October 1990

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JUDGMENT

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Sir Derek Cons, V.P., delivered the judgment of the Court:

1. LAI Hung Wai ("the Defendant") was convicted by a jury of murder at a trial presided over by Hooper J. The trial was concluded on the 28th of November last year. The victim was one CHEUNG Sam Ku.

2. The general picture of the material events, which the jury would have drawn from several witnesses, was that two groups of young people met in a noodle shop in the early hours of one morning in June last year. There were seven in one group, including the deceased and two girls; and four in the other, including the Defendant and his friend, Ah Ming. These two had been drinking beer for some time previously in other parts of Hong Kong. There was an altercation between the two groups, following the usual accusations of staring, and the deceased became abusive to the Defendant. Another of the deceased's group, referred to as "the fat boy", broke a bottle of chili and challenged the Defendant with it. The eldest of the party, a 19-year-old, appears to have been able to smooth matters over and the Defendant's party left.

3. The Defendant and Ah Ming went off to Chai Wan in a taxi. Some 15 minutes later they returned, ostensibly to collect a bunch of keys that had been left behind in the noodle shop. Meanwhile the other party had also left the noodle shop, the fat boy going home to change his shirt which had been covered with the chili. They then formed the intention to seek out, if possible, the Defendant's group. They came across the Defendant and Ah Ming somewhere near a 7-Eleven Convenience Shop.

4. We then come to the more particular picture which the jury must have drawn. Without going into minute details it is sufficient to say that there were some efforts at mediation between the groups, which failed, and then the Defendant, who by that stage was a little way apart from the group, called out to the deceased to come up to him. The deceased did so. After some time, when there is no evidence to what occurred, the Defendant was seen to stab at the deceased with a knife, causing injuries from which he subsequently died.

5. The Defendant did not give evidence himself, nor did he call any witness. He now applies for leave to appeal against his conviction.

6. Several grounds of appeal are put forward on his behalf. Firstly criticism is made of the judge's direction as to the intent necessary to found the conviction. It is said that he effectively withdrew that matter from the jury's consideration, failed to deal with the specific intent necessary for the crime of murder, and failed to deal with the effect of drink upon that specific intent.

7. At an early stage in the summing up the judge dealt in very great detail with intent. His directions occupy more than a whole page of the transcript. We do not propose to recite what he said. It is sufficient to say that he emphasized the need for the jury to be satisfied that in order to convict of murder they must be satisfied that the Defendant intended either to kill or to cause grievous bodily harm and that despite the effect that drink may have had upon him they could not convict unless they were satisfied that he had actually formed such an intent. The judge returned again to the question of intent in answer to questions raised by the jury during the course of their consideration. His directions then, again at length, were much the same as he had given earlier.

8. During the course of the summing up the judge also made this observation:

" I really think that on the evidence you will not have much difficulty in the finding that the defendant did have the requisite intention for murder, in other words, at the very least he must have had, you may feel, an intention to cause very serious bodily harm to the deceased because when a person chops and stabs another person with a knife, unless he was so drunk he just didn't know what he was doing, you can infer that he must have intended at the very least to cause very serious bodily harm. It is entirely up to you whether you do infer that. But I don't think you will have any problems about that.

The defendant does appear to have been capable of speech and decisive action at the time and I don't suppose you will have any difficulty on that."

That is the passage which is said effectively to have withdrawn the matter from the jury. With respect it did not do so. We need only repeat "It is entirely up to you whether you do infer that".

9. Secondly, criticisms are made as to the summing up on provocation, in particular with regard to the age of the Defendant and a "cooling off" period. With respect we do not quite understand the latter complaint. It is based on a passage in the middle of the summing up:

"If you believe his evidence concerning the trip to Chai Wan, it would appear that the defendant had had plenty of time to cool down after the provocative behaviour at the noodle shop. But that is entirely a matter for you to decide. You must decide on all the events prior to the attack in deciding whether the defendant was acting under provocation or might have been acting under provocation."

We are unable to find fault with this passage.

10. The judge's direction on provocation followed the suggestions of Lord Diplock in R. v. Camplin [1978] 67 Crim. App. R. 14 @ 21. Accordingly he explained that the reasonable man to whom the Defendant was to be compared was to be one of the same sex and age. He so directed the jury in the original summing up, repeating himself almost word for worn when they came back later with their questions. It is suggested that in addition he should, on either or both of those occasions, have reminded the jury that the Defendant was only 16. That was a fact which had been expressly admitted as such during the course of the trial and to which the judge referred at another stage of the summing up. Moreover the jury had been able to observe the Defendant throughout the course of the trial. In our view the judge was not required to say more with regard to provocation than he did.

11. Two matters are raised with respect to the first prosecution witness, the Defendant's friend Ah Ming, who had during the course of his evidence, with the leave of the judge, been declared to be hostile to the Crown. It is complained that the judge failed to direct the jury as to what weight should in that circumstance be given to his evidence.

12. It is trite law that if the evidence of a hostile witness is shown to be contradicted by a statement made earlier, the jury must be advised that little weight is to be given to his evidence. But that was not the situation here. Ah Ming was not shown to have made an earlier contradictory statement. He denied making any of the statements that were suggested to be his and the Crown were content to leave it at that. The judge so reminded the jury and then went on to set out his evidence in full detail for their consideration. We accept that he did not advise them as to what weight they might give to that evidence, but in the circumstances we do not feel that it was necessary for him to do so.

13. More important, in this respect, is the judge's reference to prosecuting counsel's opening to the jury. He said:

" The first witness of course was LAW Ram-ming. He was the one who came from the defendant's own group. He was the 16-year-old boy the Crown regarded as their key witness because, as the prosecutor said in his opening speech, this witness and the defendant were supposed to have gone back to the vicinity of the defendant's home in Chai wan where the defendant left him and returned about 10 minutes later and looked as if he was concealing something and acting in a nervous manner, and then hailed a taxi and then went back to Shau Kei Wan road and was supposed to have said in the car 'It will be their bad luck if they were found and their good luck if they were not found'."

We do not understand why the judge thought it necessary to remind the jury in such detail of what had then been said. It seems to have served no useful purpose. Moreover, having done so, it would have been better if he had spoken more strongly by, for example, urging the jury to put the remarks completely out of their mind. All he said was:

"There is no evidence that he did in fact say that."

Nevertheless, taking it all in all, together with his other directions that the jury were not to act upon comments or suggestions made by counsel, we are satisfied that the jury would have understood that they were not to take those remarks as part of the evidence against the Defendant.

14. A fourth ground of appeal is that the judge should not have withdrawn the question of self-defence from the jury. That may be easily disposed of. In our view he was quite correct to do so. There was no evidence whatsoever to support the suggestion.

15. The fifth ground of appeal relates to "the shirt", an unfortunate incident in the course of the trial. The evidence of the fat boy was that when he went to help the victim after the victim had been stabbed, the Defendant kicked him away, leaving the imprint of a shoe upon the shirt that he was then wearing. Before the cross-examination of the fat boy defence counsel had enquired of prosecution counsel as to the shirt and he understood the answer of Crown counsel to mean that the police did not have it. He therefore cross-examined the fat boy, in an effort to destroy his credibility, with the suggestion that no kicking had taken place and that he had handed no shirt to the police. Thereupon Crown counsel, who had in fact intended his answer to defence counsel to mean only that he did not intend to produce the shirt as part of his case, asked to produce the shirt in rebuttal, which after some discussion, the judge allowed. He dealt with this matter in his summing up as follows:-

"He claimed he did produce the shirt he was wearing to the police. Mr. MacKenzie-Ross based his cross-examination in respect of the shirt upon what he had heard from Crown counsel. But of course we now know that the witness did in fact produce a shirt to the police and that Mr. Mackenzie-Ross was either misled or misunderstood the situation. All I say on that is you can't hold that against the defendant."

We feel that that was probably the best the judge could do; but to be fair to Mr. MacKenzie-Ross, he does not put this forward as a serious ground of appeal, rather as a comment upon the unfortunate circumstances of the trial.

16. The remaining grounds of appeal relate to particular comments in and what is said to be the general tenor of the summing up, that is, that it was unfairly balanced against the Defendant, leading to an unsafe or unsatisfactory condition. Having considered the matters referred to, we are not so persuaded.

17. For these reasons we refuse the application for leave to appeal against conviction.