Kwan Man-on and Another v. The Queen
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CACC000612/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 612 OF 1972 -----------------
----------------- Coram: Full Court (McMullin, Pickowing & Trainor JJ.) Date of Judgment: 19th June 1973. ----------------- JUDGMENT ----------------- McMullin J. : 1. The appellants were amongst five young men originally charged before the Supreme Court on an indictment containing three counts. They were all charged on the first count with the murder of a person called FUMG Yim-man; upon the second count with wounding TONG Yiu-man with intent to do him grievous bodily harm' on the third count with wounding KAM Kwong-wai with intent to do him grievous bodily harm. None of the defendants was found guilty of murder but the second defendant (who is not now an appellant) was convicted of manslaughter and also of wounding with intent under the third count. The fifth defendant was acquitted altogether and the others including the two appellants were all conpicted on one or other of the two wounding charges. The two appellants were convicted of the wounding with intent of TONG Yiu-man on the second count. 2. It is not seriously in dispute that the fraces from which these charges arose involved members of two opposing triad groups namely to Lo Tung Chai and the Lo Tan Chai and it would appear that the trouble arose out of an incident in a billiard salcon at No. 52-58. Jaffe Road in the course of which the deceased and his friends assaulted the second accused the third accused and some others of their group. Evidently the second and third accused were outnumbered and the end of that matter was that there was an arrangement rather in the nature of a challenge issued to them by the Lo Tung Chai Triad group to the effect that if the Lo Tan Chai people were dissatisfied they could discuss the matter with him the following day at the Happening Discotheque which is in the same building. It thus occurred that 10 to 20 persons from both these gangs confronted each other the following day the 27th and that confrontation resulted in a series of skirmishes and running fights involving Jaffe Road, Fenwick Street and Lockhart Road in an area bordered on the west by Arsenal Street and on the east by Luard Road on the north by Gloucester Road and on the south by Hennessy Road. 3. It was the Crown's primary contention that every person in the accused's gang who took part had the intention of doing grievous bodily ham and that they were armed with a variety of weapons so that although the killing and the two woundings took place at different occasions and at different moments of time each of the participants was responsible for all the acts of the others done in pursuance of a common design to attack their opponents in that way. In a very detailed and painstaking summing-up the learned Commissioner explained the general nature of the principles involved in an allegation of responsibility for a killing or wounding on the basis of common intent and it is clear from the several verdicts that the jury were not prepared to find that the Crown had proved that from the very outset of the affair all the accused persons had shared equally a common intent to do grievous bodily harm to any of the opposing group who might be discovered in the vicinity in the course of a general expedition of reprisal. Thus both the present appellants were acquitted on the murder charge altogether and also on the charge relating to the wounding of KAM Kwong-wai. The learned Commissioner carefully summarised the evidence standing against each of the present appellants. That evidence consisted of the testimony of the victim TONG Yiu-man; his identification of the two appellants at the identification parade held subsequent to the arrest; and statements made by them to the police, There was abundant evidence to show that the trouble first broke out at the East Town Theatre in Fenwick Street where the Lo Tung Chai group to which the accused belonged had already assembled when the deceased and the Lo Tan Chai people approached from various directions converging upon that theatre. There was evidence that a number of the deceased's group had gone together in a bus and that other members of that group had gone singly by other means at about the same time, The victim TOMG Yiu-man gave evidence that he had gone there alone and that when he got near the Golden Bell Billiard Saloon in Fenwick Street he saw two groups of people one at the junction of Fenwick Street and Jaffe Road and one at the junction of Fenwick Street and Lockhart Road. He said that these people rushed at him and he took to his heels and ran along Jaffe Road towards Arsenal Street. On this evidence it is clear that he cannot have been present at the time when the deceased was attacked which was roughly about that time in Fenwick Street which TONG Yiu-man had just left. Tong said that when he got to the end of Jaffe Road he turned to his left down Arsenal Street towards Hennessy Road and when he had run to some distance down towards Hennessy Road he saw a group of youths doubling round the corner of Hennessy Road into Arsenal Street and running towards him. He then doubled back and turned into Lockhart Road pursued by that group of ten to twenty people. He said that just outside the construction site in Lockhart Road he was seized by two of this gang of 10 or 20 and he identified these two as the firs; and fourth accused i.e. the present appellants. His evidence was that they were not armed and that they beat him with their fists and also kicked him. They were apparently joined in the course of this by several others of the group he had seen and four or five of them dragged him into the construction site some of them picking up iron rods from the construction site as they did so and using these rods to strike him. He lost consciousness after he had received about ten blows and when he came to his attackers were all gone. There was blood upon his head but he said that he did not feel any particular pain. He then walked out of the construction site and a taxi pulled up in front of him and he drove to the junction of Lockhart Road and the Arsenal Street where he met a policeman who helped him into the police station. He was taken then to the Tang Shiu Kin Hospital and cuts on his scalp and some abrasions on his body were treated and he was released the following day. 4. The statements made by each of the appellants to the police were made the subject of a challenge in the course of the trial and were eventually admitted in evidence and no point has been made upon the appeal as to the propriety of the Commissioner's ruling in that regard, The first appellant's statement was made to Detective Sergeant 3243 on the 1st of March 1972. In his statement he admitted going to the Happening Discotheque on the 27th to talk terms with the opposite party. He said that he took with him a table knife about 1 foot long. He was given instructions by one of his gang to go into Lockhart Road from Arsenal Street to intercept members of the Lo Tan Chai coming from Fenwick Street. When he entered Lockhart Road from Arsenal Street he saw about 10 to 20 people fighting then saw four teddy boys rushing at him from Lockhart Road he and one of his companions intercepted one of these teddy boys and hit him with their fists. This boy tried to escape and the appellant kicked him once on the body causing him to strike himself against the wall and fall down. He then added:
The second appellant's police statement on the other hand made no such clear admissions. In it he merely admitted that he had beaten one of the opponent party once and that he had chased him but could not catch him. The events so described would seem to have taken place in the vicinity of a restaurant called the Jumbo Restaurant which is in Lockhart Road but to the east of Fenwick Street whereas the attack on TONG Yiu-man in the construction site took place in Lockhart Road to the west of Fenwick Street. Another witness gave evidence of seeing the second appellant amongst those involved in the attack on the deceased, but that witness, LAI Chung-lim, failed to pick out the second appellant at the identification parade and also he made a wrong identification. The trial judge carefully pointed out to the jury that prosecution witnesses had been somewhat discordant in their evidence as to the second appellant, some of them having stated that they saw him at the corner of Arsenal Street and Hennessy Road and some having seen him at what might be described as the initial attack near the theatre in the Fenwick Street. In general it may be said that the learned Commissioner was extremely careful in pointing out the precise nature of the evidence led by the Crown against each of the appellants. He commented at length upon certain alleged deficiencies in that evidence. 5. A number of points have been made upon the appeals of both appellants by Mr. Donnelly who appeared on their behalf. There is however in the opinion of this court only one matter of substance which has been urged before us. It is complained that the learned Commissioner inadequately directed the jury as to the meaning of the term" grievous bodily harm". In the course of the summing-up counsel for the Crown at the instance of Mr. Donnelly for the defence brought it to the Commissioner's attention that up to that point no actual definition of the phrase had been given to the jury. The Commissioner thereupon said:
At this point Mr. Donnelly interjected (presumably by way of interposing a helpful gloss) the words : "serious injury". The Commissioner took up this point and went on to say :
It may be said at once that if it were all that there was to this objection we would think there as nothing in it. This matter is admirably dealt with by what was said by Viscount Kilmuir in D.P.P. v. Smith (1) where, at page 171 the following appears :
The learned Lord Chancellor proceeded thereafter to adopt what had been said by Martin J., in R. v. Miller (2) when, in dealing with the same question. that learned judge said as follows :
The point in the present case is however not concluded by these clear statements of principle. Dr. Cheng who examined the complainant Tong described his injuries as follows :
Later he said:
He also told the court that the two lacerated wounds on the head needed stitching. Later in answer to questions in cross-examination the doctor gave the reply on which Mr. Donnelly principally relies. Counsel put it to the doctor that none of the injuries to TONG Yiu-man were serious and the doctor without hesitation agreed that that was so. Counsel now assembles his objection from the following clements : firstly, the expert witnesses' testimony that serious injury had not been done to the victim; secondly, the Commissioner's disinclination described grievous bodily harm in terms of a really serious injury; thirdly, the fact that the Commissioner was dealing with a Hong Kong jury, some of whom might not speak English as their first language and to whom therefore the term "grievous bodily harm" might be by no means clear and might not be equivalent to serious injury. In any event, it was, in counsel's contention, wrong for the jury on such a matter to disregard the expert evidence and if they understood the term as meaning really serious harm they must have disregarded that evidence in coming to the conclusion that there was an intent to cause grievous bodily harm. Again, there was the fact that although the first appellant in his police statement admitted striking with an iron rod, a blow with such an implement which succeeded in doing only a damage which the doctor could describe as being less than serious could not, in counsel's contention, have been intended to cause anything like serious bodily harm. To this he added also the consideration that in his statement the first appellant had admitted being in possession of a knife and clearly had dispossessed himself of that weapon at the time when he attacked the complainant Tong. Furthermore, the iron rod had only been snatched up as he and the others dragged the victim into the construction site. Combining all these matters together counsel contended that it would have been very desirable for the judge, although he had given admirable statements of the law in respect of what constituted common intent earlier, to have repeated to them, when dealing with the evidence relating specifically to each appellant, that, before they could convict of wounding with intent to cause grievous bodily harm, they must be satisfied that the first appellant intended such a harm and further that, at that point, he should have defined such a harm more fully; and that, as to the second appellant, who is not proved to have been armed at all, that they must be satisfied that he intended such a harm. Principally however it was counsel's contention that no such intention could be shown upon the evidence put before the jury in view of what the doctor had said. We think the point thus generally summarised is one of some substance. It may very well be, of course, that in saying that the injuries were not serious the doctor, speaking as a medical man, was saying no more than that among the many injuries to the head which it fell to his lot to examine this was not amongst the gravest kind of such injuries. We cannot go so far as saying, simply because the doctor described the injuries as not serious, that the jury were not entitled to consider that they amounted to grievous bodily harm. That was a jury question and it was left to the jury to decide. In view of the nature of the doctor's answer, and of the fact that it had been given in evidence several weeks prior to the point at which the matter was being dealt with by the judge in summing-up, we think it was not merely desirable but necessary that the learned Commissioner should then have reminded the jury of the doctor's evidence on this matter and should have coupled with this a reference to those other factors just now set out above, which might conceivably have operated as mitigating factors when the jury came to consider what was the nature of the intent shown by the first appellant in striking the victim. Certainly, we cannot be sure that, had the jury been reminded that the doctor had not considered the injuries to be serious and had they been told at the same time that grievous bodily harm meant any really serious bodily injury that they would nevertheless inevitably have come to the conclusion that the first appellant's intention in striking was to inflict a grievous bodily harm. For these reasons we think that the conviction of the first appellant must be set aside but we substitute therefor a conviction of the offence of causing actual bodily harm contrary to provision of Section 19 of the Offences Against the Person Ordinance Cap. 212. It follows of course that the appeal of the second appellant must similarly succeed and we substitute a similar conviction in his case also. 6. There has been no appeal against sentence but we must necessarily interfere with the sentence of the second appellant since under Section 19 the maximum imposable is three years' imprisonment and he has received, for the offence of which he was convicted, a term of four years. The third original accused was convicted of unlawful wounding under Section 19 and for that he received a sentence of two years' imprisonment. We think it is fair to take this as a yardstick of the learned Commissioner's attitude to such of the accused as had no previous criminal record and who were found guilty of the latter offence. For this reason we think it proper to reduce the sentence imposed upon the first appellant from two and a half years to two years. The heavier sentence imposed upon the second appellant would appear to be based upon his previous criminal record which included a previous conviction for assault occasioning actual bodily harm, for which however he was fined only $200 on the 6th of October 1971. He was not proved to have used any weapon in the course of the assault in the present case. In all the circumstances we take the view that both appellants should receive the like sentence. Accordingly for the sentence of 4 years we substitute a term of two years' imprisonment on the second appellant. Representation: J.D. Donnelly instructed by Director of Legal Aid for both appellants. J.G. Stevenson C.C. for respondent. (1) 1960 3 All E.R. 161. (2) (1951) V.L.R. 346. |