HKSAR v. Koo Ka Chun and Another
Read the full judgment text of CACC 205/2006 on BabelCite. This Court of Appeal judgment was delivered on 27 February 2008.
1. On 15 May 2006, the applicants (D1 and D2 respectively) were convicted of the murder of Man Chung-wah (the deceased) following a trial before Mr Recorder Macrae SC and a jury. They now seek leave to appeal against conviction.
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CACC 205/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL criminal APPEAL NO. 205 OF 2006 (ON APPEAL FROM HCCC NO. 318 of 2005) ____________________ BETWEEN
____________________ Before : Hon Stuart-Moore VP, Stock JA and McMahon J Dates of Hearing : 28 June 2007 and 26 February 2008 Date of Judgment : 27 February 2008 ______________________ J U D G M E N T ______________________ Stuart-Moore, VP (giving the judgment of the Court): 1.On 15 May 2006, the applicants (D1 and D2 respectively) were convicted of the murder of Man Chung-wah (the deceased) following a trial before Mr Recorder Macrae SC and a jury. They now seek leave to appeal against conviction. 2.Briefly, the allegation was that the applicants, acting together in a joint enterprise and having armed themselves with long-bladed knives, attacked the deceased with these knives in the early hours of 10 July 2005. 3.This cowardly attack appears to have been directly related to the refusal by the staff at the New Voice Pub in Tai Wai to serve more alcoholic drinks after the applicants and others in their group had been drinking for many hours. In the argument which ensued, D2 returned to his home address in order to fetch two very sharp knives. Subsequent events were largely described by D1 and D2 in interviews with the police following their arrest. 4.The deceased had worked as a bar attendant at the New Voice Pub for more than two years. He was described by the proprietor (PW1) as someone who seldom got into trouble with customers. The deceased was on duty at 10.00 pm on 9 July 2005 when three men and two women came into the pub and sat at table 4. PW1 had not seen them before and he noticed they consumed a lot of beer. At about 3.30 am, on 10 July 2005, PW1 went off for some night snacks and returned at about 4.00 am to find the customers from table 4 leaving. He had not witnessed the argument over the refusal to serve them more drinks. 5.The waitress (PW2) who served table 4 testified that originally this group of customers had been about ten in number but five were left behind after half of the group left at about 2.00 am. In her evidence, she described the actions of these five people who were previously unknown to her by reference to letters of the alphabet in order to describe their actions. Mr A and Mr B were in due course identified as D1 and D2 respectively. Mr C and Miss D did not feature as witnesses in the trial. The fifth member of the group, Miss E, was D2’s girlfriend, Chan Hiu-tung, who gave evidence for the defence. 6.PW2 described how, after PW1 had left the pub, D1 told her to fetch a dozen beers. She refused and told him they were closing. This made D1 very angry and a quarrel ensued. At one stage, the deceased tried to mediate. When D1 picked up a beer bottle, the deceased snatched it from him. Eventually, when PW2 closed the pub at about 4.00 am, only D1, Mr C, Miss D and Miss E were still there. D2 had left after the quarrel. 7.The prosecution alleged that at the time of the killing, D1 was carrying a 32-centimetre-long pointed knife (exhibit P-1) and D2 was carrying a 40-centimetre-long watermelon knife (exhibit P-2). The deceased had walked with PW2 from the New Voice Pub, at a time not long after 4.00 am, to the front entrance of a building nearby. This was next to a 7-Eleven shop. As PW2 climbed the staircase, she heard the deceased shouting to her to make a telephone call. She came back downstairs to find out what he meant and suddenly she saw D2 carrying the watermelon knife, exhibit P-2. Before he attacked the deceased, he accused them of quarrelling with his friends. He also said: “Don’t make a phone call, don’t make a phone call”. According to PW2, the deceased was not holding a telephone. 8.PW2 next saw D2 strike downwards with his right arm and she saw the deceased making a protective gesture with his right arm. Then D1 suddenly appeared. He was carrying a similar knife, exhibit P-1. PW2 ran upstairs to the café where her boyfriend was waiting for her and a telephone call was made to the police. 9.The deceased was taken to the Prince of Wales Hospital where he was certified dead at 5.53 am. Dr Poon Wai-ming later conducted a post-mortem. He found six cut wounds on the deceased’s upper limbs which were consistent with defensive injuries resulting from warding off a sharp instrument. The fatal blow was a stab wound which measured 4.3 centimetres in width and it penetrated to a depth of 17 centimetres into the abdomen almost completely severing the right external iliac artery. This, in turn, caused massive bleeding. Dr Poon found that the injury had been inflicted with a moderate to severe degree of force. In his opinion, the deceased’s injuries were compatible with having been caused by the pointed knife, exhibit P-1, the blade of which measured 20.5 centimetres. The injury showed that the sharp side of the blade was facing upwards when the blow was struck. The remaining cut wounds were caused by either one or both of the knives, exhibit P-1 or P-2. 10.D1 was arrested in the street at 6.20 pm on 10 July 2005. He replied: “I just drank too much. I did not intentionally want him to die. I only intended to scare him.” 11.Following this, D1 was interviewed on three occasions. In essence, he admitted to the police that he had been drinking in the company of a number of others, including ‘Ah Ting’ (D2) at the New Voice Pub. At some stage his friends were quarrelling “fiercely” with PW2. He did not know what it was about but the quarrel had nothing to do with the deceased. At some stage, D2 went missing and he did not know where he had gone. Later, after he left the pub, he saw PW2 leaving with the deceased. He asked one of the others he was with where D2 had gone and was told that he had gone home to fetch something. He guessed that it would be to fetch some offensive weapons but it was “out of his thought” that D2 would bring knives. 12.Soon afterwards, D1 said that D2 returned with a bag of things but D1 told him that PW2 and the deceased had already left. D2 replied by saying that they were still at the 7-Eleven shop. D2 then removed the knives from the bag he was carrying and gave D1 one of them. D1 then dashed over behind D2 who had found the deceased and D2 began to quarrel with the deceased. Having only said a few words to the deceased, D2 began to chop the deceased and D1 continued by saying:
13.When they left the scene, D1 said that ‘Ah Ting’ (D2) took the knives with him and he and other friends all joined up to go back to D2’s address. Eventually, he went home at about 6.00 am and, later on 10 July 2005, he packed up all the clothes he had been wearing and threw them in a rubbish bin. However, he kept his sports shoes which were later recovered by the police from his home. These were found with the bloodstains of the deceased upon them. D1 identified the knife, exhibit P-1, as the one he had used to attack the deceased. D1 maintained that he only wanted to wound the deceased and had not thought of killing him. He denied having sent D2 back to his home address to fetch weapons. 14.D2 was also arrested on 10 July 2005. He was intercepted at 7.30 pm by immigration officers as he attempted to leave Hong Kong at the Lok Ma Chau Border Control Point. When D2 was formally arrested for murder about two hours later, he replied:
15.In subsequent interviews, D2 referred to the deceased as “the boss”, having erroneously formed the impression that this was the deceased’s position at the pub. However, he said that the quarrel in which his group had been involved was not with the deceased but with the waitress (PW2). In his answers to the police, D2 again referred to D1 as ‘Ah Koo’. Amongst other things, D2 said as follows:
16.D2 went on to describe how he selected two knives from his home. The watermelon knife, exhibit P-2, came from a drawer in his wardrobe at the side of his bed and the other knife, exhibit P-1, came from the kitchen. He put them in a plastic bag and returned to the vicinity of the pub where he found D1. He gave the pointed knife to D1 and kept the watermelon knife for himself as he “did not want to harm anyone”. 17.He then ran behind D1 to the place where the deceased and PW2 were standing. D2 gave the following description of the attack:
18.D2 then described how PW2 was either pressing the buttons on her telephone or was making a call. He said that PW2 had been able to see D1 as well as himself attacking the deceased. He said that he called several times to D1 to leave and they hurriedly left the scene by taxi. Later, at D2’s address, D2 spoke about D1 saying that he had “stuck it in and pulled it out and then the blood came gushing out”. D2 also described his fear of D1. Defence case 19.D1 did not give evidence but his case was presented on the basis that, as a result of his state of his drunkenness, he did not have the intent for murder. 20.D2 gave evidence and called his girlfriend as a witness. 21.In his evidence, D2 more or less repeated the account he had given to the police. He said that he had followed D1’s instructions to go home to fetch weapons because D1 was very “fierce” at the time and his mind was a blank. When he returned to the area where D1 was waiting for him, D2 randomly picked out a knife and gave it to D1 who said: “Give it to me. Let’s go”. D2 ran after D1 not knowing why but when he saw D1 pick up a plastic bag and wrap it round the handle of the knife, it crossed his mind that D1 was going to hurt someone. D2 then said that he ran in front of D1 to warn people to go away and he made a motion with his right hand in which he held the watermelon knife to brush the deceased away with the back of the knife. He said that the knife did not come into contact with the deceased. After that, the deceased was stabbed by D1. He then left the scene with D1 in a taxi. 22.In cross-examination, D2 agreed with counsel for D1 that he had been given no instructions as to the type of weapons he should bring back with him. It was, D2 agreed, his own choice to select knives. He also said that while it had crossed his mind that D1 intended to hurt someone, he did not know who D1 was intending to hurt. 23.When prosecuting counsel cross-examined D2, he sought an explanation for the fear D2 said that he had for D1. He described several incidents but he agreed that nevertheless he had continued to see D1 and occasionally went drinking with him out of friendship as, of all his friends, D1 knew his [D2’s] family circumstances. Eventually, he agreed that it had crossed his mind that the reason D1 wanted him to bring weapons was to harm the other party but he said he was not sure if the weapons would be used “to intimidate or to attack”. If he had refused to fetch the weapons, he would, he said, have been scolded or hit by D1. When asked by the prosecutor why he had selected two knives, D2 said (contrary to the account he had given to the police) that it was only when he was in the taxi returning to the pub that he realised that there were two knives in the bag. There came a stage, however, in the cross-examination of D2, when he refused to answer further questions. 24.D2’s girlfriend testified that she became afraid of D1 on the night in question when he grabbed a beer bottle. She saw D2 afterwards when he was nervous and scared and she described D2 as having been very drunk that night. In evidence, she said that D2 had told her that he had tapped the other person once with the flat side of the knife without hurting him. This was by contrast to the witness statement she gave to the police wherein she had recounted D2 as having told her: “I just hurt his hand”. D1, she said, was very happy when he told her that he had stabbed someone and had seen blood gushing out. D1’s grounds of appeal 25.Mr Mughal, who did not appear in the court below, advanced five grounds of appeal on D1’s behalf, describing this as ‘cut-throat’ defence case. More precisely, D2’s defence was a cut-throat defence casting all the blame onto D1. D1 did not give evidence. His ‘defence’ was more in the nature of putting the prosecution to proof of its case. 26.Mr Mughal described his 1st ground of appeal as the “main ground” with the remaining grounds being “linked and supporting”. Accordingly, we shall deal with all the grounds together which were as follows:
27.Mr Mughal’s point can be made very simply and, to give him credit where it is due, this was precisely what he did. He asserted that nowhere in the recorder’s summing up were there words which alerted the jury to the need for caution when approaching D2’s evidence against D1. He submitted that this was particularly important in a case such as this where a co-defendant had refused, part way through his cross-examination, to answer any further questions. 28.In making his submissions, Mr Mughal relied upon a number of relatively early authorities, the first of which was R v Chan Siu-shing and Ors [1974] HKLR 493. In that case, it was argued that the judge had failed to warn the jury about the dangers of placing weight on the evidence of three of the co-defendants against the 2nd appellant. The Court of Appeal said (at pages 504-505):
29.The question as to whether D2 had testified against D1 to serve his own interests, aside from being an obvious possibility to any sensible jury, was perfectly properly canvassed by counsel for the prosecution and for D1 in their final speeches. It would be idle to think that the jury were not alert to the possibility that D2 was merely trying to get himself out of trouble as he heaped the blame onto D1. 30.In any event, the present approach to the need for a ‘self-interest’ warning to the jury in cases where a cut-throat defence has been run by a co-defendant is to be found in Law Chung-ki and Anor v HKSAR [2005] 8 HKCFAR 701, the existence of which Mr Mughal was candid enough to say he had not appreciated at the time he prepared his written submissions. The relevant passages are as follows:
31.Turning now to the actual directions given by the recorder on this topic, the jury were told:
32.It is apparent to us that the recorder had directed the jury in terms which amply described the approach the jury should adopt towards the evidence given by D2 which was adverse to D1. In this and all other respects, the recorder had directed the jury with infinite care, providing a fair and balanced summing up of the case from every perspective. 33.There is no merit in D1’s grounds of appeal and his application is dismissed. D2’s application 34.On 28 June 2007, when this matter was last before us, D2 applied for an adjournment of the proceedings. It emerged that two experienced counsel had independently advised that there were no arguable grounds of appeal and that the solicitors, Messrs Ho and Ip, who had been assigned the case by the Director of Legal Aid, had done everything within their power to research the various matters raised by D2 in his instructions to them. 35.Nevertheless, in view of D2’s insistence that his family had raised a sufficient sum of money to be in a position to brief a lawyer privately and, because of the mandatory sentence of life imprisonment imposed on D2, we felt disposed to grant him an adjournment. It has since transpired that D2 has been unable to find anyone prepared to advance a ground of appeal on his behalf. Accordingly, he has put forward his own grounds. We will briefly deal with these now. 36.In his first ground, D2 asserted that the recorder gave an insufficient direction as to the approach the jury should take to the effect that alcohol may have had in regard to D2’s intent at the material time. This assertion is not, however, borne out by the transcript of the summing up where, following earlier discussions between the recorder and trial counsel for D2 on this issue, the recorder directed the jury:
37.The recorder, shortly afterwards, continued by directing the jury in the following terms:
38.There is no substance whatever in D2’s first complaint. 39.In the second of his grounds, D2 suggested that the lady, who was eventually to become the jury’s forewoman, may not have had a good command of English because of her apparent difficulty in reading the oath. 40.The transcript (at page 717) provides no support for D2’s suggestion and counsel for D2 made no application for the juror in question to be stood by after she had taken the affirmation. Furthermore, we have listened to the audio-tape recording of the proceedings as the jury were being sworn in and there is nothing to suggest any irregularity. The juror may have displayed an element of nervousness but this is not to be confused with an inability to follow the proceedings in English. 41.This ground has no foundation. 42.The third and last ground suggested that this was “clearly a manslaughter case” because, as D2 expressed it, a person who is under the influence of alcohol “will react differently from a normal person” and that person will behave in an “unreasonable and uncontrollable manner”. He contended that as the person with whom he had argued was PW2 and not the deceased, this “proved” he had no intention to injure anyone. 43.As we have indicated already, the directions given by the recorder concerning the effect that alcohol may have upon intent were appropriate. The suggestion that the wrong person was injured and killed is utterly beside the point. 44.This ground fails. 45.Accordingly, D2’s application is dismissed.
Mr John Reading, SC, DDPP, and Ms Anna Lai, SGC, of the Department of Justice, for the Respondent. Mr Hanif Mohamed Mughal, instructed by Messrs Tsangs, assigned by Director of Legal Aid, for the 1st Applicant (D1). The 2nd Applicant (D2), in person. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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